26 I. & N. Dec. 202
BIA2013Background
- Respondent Rocco Oppedisano, an Italian national and lawful permanent resident since 1973, was convicted in federal court (E.D.N.Y.) of unlawful possession of ammunition by a convicted felon under 18 U.S.C. § 922(g)(1) on January 6, 2012; sentenced to 5 years probation and a $15,000 fine.
- Immigration Judge (IJ) found the conviction constituted an aggravated felony under INA § 101(a)(43)(E)(ii) and ordered removal; respondent appealed the denial of his motion to terminate.
- Central statutory text: INA § 101(a)(43)(E)(ii) references 18 U.S.C. § 922(g) with the parenthetical “relating to firearms offenses.”
- Respondent argued the parenthetical is limiting (excluding ammunition-only offenses), that the IJ failed to analyze § 101(a)(43)(E)(ii) independently and deprived him of due process, and that the rule of lenity should apply.
- The Board conducted de novo review of whether the parenthetical is descriptive or limiting and whether lenity applies, and affirmed the IJ’s conclusion that the conviction is an aggravated felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the parenthetical “relating to firearms offenses” in INA § 101(a)(43)(E)(ii) limits the aggravated-felony definition to firearms (excluding ammunition-only offenses) | Oppedisano: parenthetical is limiting; his ammunition conviction is not covered | DHS/Board: parenthetical is descriptive shorthand for the referenced statutes, which encompass both firearms and ammunition offenses | Parenthetical is descriptive, not limiting; § 922(g) ammunition conviction qualifies as an aggravated felony |
| Whether the IJ’s process deprived respondent of due process by not providing a rational explanation | Oppedisano: IJ failed to make independent statutory analysis and gave insufficient reasoning | DHS: IJ allowed full briefing and argument; any error harmless because Board reviews de novo | No due process violation; respondent had opportunity to argue and Board’s de novo review cures any claimed deficiency |
| Whether the rule of lenity requires construing the statute in respondent’s favor | Oppedisano: ambiguity warrants lenity | DHS/Board: traditional statutory tools resolve the meaning; no grievous ambiguity | Lenity does not apply because statutory meaning is sufficiently clear |
| Whether ammunition offenses are sufficiently related to firearms offenses to fall within the parenthetical | Oppedisano: ammunition distinct from firearms | DHS/Board: statutory definitions and statutory scheme link ammunition to firearms and their use | Ammunition offenses are integrally associated with firearms and fall within “relating to firearms offenses” |
Key Cases Cited
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (statutory interpretation should aim for a coherent regulatory scheme)
- Robinson v. Shell Oil Co., 519 U.S. 337 (contextual statutory reading principle)
- Gourche v. Holder, 663 F.3d 882 (7th Cir.) (parenthetical as descriptive shorthand)
- United States v. Harrell, 637 F.3d 1008 (9th Cir.) ("relating to" has descriptive import)
- United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir.) (parenthetical descriptive in aggravated-felony context)
- Patel v. Ashcroft, 294 F.3d 465 (3d Cir.) (distinguishing descriptive vs. limiting parentheticals)
- United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir.) (context supports descriptive reading)
- Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir.) (different parenthetical; found underlying conduct related)
- Kawashima v. Holder, 132 S. Ct. 1166 (rule of lenity is a last-resort doctrine)