23 I&N Dec. 9
BIA
2001

In re Robin Juraine CRAMMOND, Respondent

File A41 925 300 - San Pedro

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Decided March 22, 2001

23 I&N Dec. 9 (BIA 2001)*

Interim Decision #3443
*Vacated, 23 I&N Dec. 179 (BIA 2001)

  1. A conviction for “murder, rape, or sexual abuse of a minor” must be for a felony offense in order for the crime to be considered an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).
  2. In determining whether a state conviction is for a felony offense for immigration purposes, the Board of Immigration Appeals applies the federal definition of a felony set forth at 18 U.S.C. § 3559(a)(5) (1994).

FOR RESPONDENT: Laurack D. Bray, Esquire, Ventura, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Lori Bass, Assistant District Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; HOLMES, VILLAGELIU, GUENDELSBERGER, MOSCATO, BRENNAN, ESPENOZA, and OSUNA, Board Members. Concurring Opinions: FILPPU, Board Member; ROSENBERG, Board Member, joined by MILLER, Board Member. Dissenting Opinion: GRANT, Board Member, joined by DUNNE, Vice Chairman; SCIALABBA, Vice Chairman; HEILMAN, HURWITZ, COLE, MATHON, JONES, and OHLSON, Board Members.

GUENDELSBERGER, Board Member:

This matter was last before us on November 4, 1999, when we dismissed the respondent‘s appeal of an Immigration Judge‘s April 1, 1999, decision finding him subject to removal as charged and statutorily ineligible for the relief requested. On February 1, 2000, the respondent filed a motion to reopen with the Board. The motion will be granted and the record will be remanded to the Immigration Judge for further proceedings. The request for oral argument is denied. See 8 C.F.R. § 3.2(h) (2000).

I. FACTS AND PROCEDURAL HISTORY

The respondent is a native and citizen of Belize who entered the United States as a lawful permanent resident on March 7, 1988. The record reflects that the respondent was convicted on March 23, 1998, in the Superior Court of California, Ventura County, of two separate crimes: (1) residential burglary, in violation of section 459 of the California Penal Code, for which he was sentenced to 210 days in jail and 3 years of probation; and (2) unlawful sexual intercourse, in violation of section 261.5(c) of the California Penal Code, for which he was sentenced to 90 days in jail, to run consecutive to his sentence for the burglary conviction, and 3 years of probation.

The respondent‘s motion to reopen relates solely to our November 4, 1999, determination that his conviction for unlawful sexual intercourse was for an “aggravated felony” within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999), and that he was consequently removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. V 1999), and ineligible for certain forms of relief as a result of that aggravated felony conviction. See generally 8 C.F.R. § 3.2(c)(1).

Specifically, the respondent argues that his March 23, 1998, conviction for “unlawful sexual intercourse” can no longer be considered a conviction for an “aggravated felony” under section 101(a)(43)(A) of the Act, because the state court reduced the offense from a felony to a misdemeanor. Consequently, he argues that he should be allowed to pursue relief from removal because he is not an “aggravated felon.” In support of his motion, he has submitted a copy of a computer printout reflecting docket entries for October 21, 1999, in the Ventura County Superior Court, which indicate that the respondent‘s offense was reduced to a misdemeanor.1

II. ISSUE

The issue in this case is whether the respondent has been convicted of an “aggravated felony” under section 101(a)(43)(A) of the Act. This determination turns on whether that section includes a conviction for a misdemeanor, as opposed to a felony, and whether the misdemeanor/felony distinction is governed by state or federal law.

The issue we decide here concerns only the interpretation of section 101(a)(43)(A). Our examination of other sections is for the purpose of determining whether their language or structure may shed light on the intended scope of section 101(a)(43)(A). See, e.g., Matter of Vasquez-Muniz, Interim Decision 3440 (BIA 2000) (determining the meaning of “described in” under section 101(a)(43)(E) of the Act after reviewing use of the same or similar language in other provisions of the Act).

III. ANALYSIS

A. Section 101(a)(43)(A) of the Act

Section 101(a)(43) of the Act defines the categories of offenses that Congress has determined merit treatment as “aggravated felonies” under the immigration laws. Section 101(a)(43)(A) includes the crime of “sexual abuse of a minor” within the definition of an aggravated felony. Specifically, the statute provides, in pertinent part, as follows:

The term “aggravated felony” means—

(A) murder, rape, or sexual abuse of a minor;2

. . . .

The term applies to an offense described in this paragraph whether in violation of Federal or State law . . . .

Section 101(a)(43)(A) of the Act. The issue before us is whether the language of the statute mandates that an offense described in section 101(a)(43)(A) be a “felony” offense.

Interpretation of statutory language begins with the terms of the statute itself, and if those terms, on their face, constitute a plain expression of congressional intent, they must be given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). The legislative purpose is presumed to be expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984). In discerning congressional intent, the words of a statute must be read in their context and with a view to their place in the overall statutory scheme, as the meaning (or the ambiguity) of certain words or phrases may only become evident when placed in context. See Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).

We do not find a clear expression of congressional intent in the plain language of section 101(a)(43) of the Act. The choice of the term “aggravated felony,” as opposed to more generic terms such as “aggravated offense” or “aggravated crime,” does suggest that Congress intended to restrict the listed offenses to felonies. On the other hand, there is no explicit reference in section 101(a)(43)(A) requiring that the crimes included there be felonies.

Looking beyond section 101(a)(43)(A), some of the other aggravated felony provisions refer to other federal statutes, or they require minimum sentences or minimum monetary loss amounts for an offense to qualify as an aggravated felony. Specifically, section 101(a)(43)(B) requires, by reference to federal statutes regarding illicit trafficking in a controlled substance at 21 U.S.C. § 802

and drug trafficking at 18 U.S.C. § 924(c), that an offense be punishable as a felony. See section 101(a)(43)(B) of the Act; Matter of K-V-D-, Interim Decision 3422 (BIA 1999) (affirming Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), and concluding that an alien convicted in Texas of simple possession of a controlled substance, which would be a felony under Texas law but a misdemeanor under federal law, is not convicted of an aggravated felony within the meaning of section 101(a)(43)(B) of the Act); see also United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998); United States v. Garcia-Olmeda, 112 F.3d 399 (9th Cir. 1997).

Section 101(a)(43)(F) of the Act refers specifically to the federal definition of a “crime of violence” in 18 U.S.C. § 16, which requires that any crime falling within § 16(b) be a felony but contains no such requirement for offenses falling within § 16(a). It further provides a specific minimum sentence of “at least 1 year” for the offense. Thus, this section has been found to include crimes that are not “felonies” within the federal definition of that term.3 See United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) (finding, for sentence enhancement purposes, that a misdemeanor offense for which the alien had been sentenced to a 1-year suspended sentence was an aggravated felony within the meaning of the Act); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000) (finding that the plain language of section 101(a)(43)(F) contains no requirement that the offense have been a felony, and concluding that the alien‘s misdemeanor conviction for sexual battery was for an aggravated felony). Section 101(a)(43)(G) also defines as aggravated felonies theft or burglary offenses for which the sentence is “at least 1 year,” without further qualification. See section 101(a)(43)(G) of the Act; see also United States v. Pacheco, supra; United States v. Graham, 169 F.3d 787 (3d Cir.) (finding, for sentence enhancement purposes, that a misdemeanor theft conviction for which the term of imprisonment is 1 year is an aggravated felony conviction under section 101(a)(43)(G)), cert. denied, 528 U.S. 845 (1999).

As indicated by the separate opinions in this case, the language of section 101(a)(43) of the Act can be read to support competing reasonable interpretations of whether an offense under subparagraph (A) must be a felony. These differing views are expressed in the concurring opinions of Board Members Filppu and Rosenberg, who agree that a subparagraph (A) offense must be a felony in order to meet the definition of an “aggravated felony,” and in the dissenting opinion of Board Member Grant, who concludes that such offenses need not be felonies.

Where the language of the statute is ambiguous, we turn to traditional tools of statutory construction, such as the legislative history or other statutes where Congress may have spoken subsequently and more specifically regarding the issue at hand. See Food and Drug Admin. v. Brown & Williamson Tobacco Corp., supra, at 133. Although legislative statements have less force than the

plain language of the statute, such statements are helpful to corroborate and underscore a reasonable interpretation of the statute. See generally, e.g., Weinberger v. Rossi, 456 U.S. 25, 32 (1982). There is little indication in other sections of the Act or in the overall statutory scheme of Congress’ intentions concerning the offenses listed in section 101(a)(43)(A). However, the addition of section 237(a)(2)(E) of the Act as a ground of removability,4 which includes such crimes against children as child abuse, child neglect, and child abandonment, suggests that Congress intended “sexual abuse of a minor” offenses under section 101(a)(43)(A) to be limited to felony offenses. This is indicated by the fact that lesser sexual abuse offenses would be covered under section 237(a)(2)(E).

The language in former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), also supports the position that aggravated felony crimes are necessarily felony offenses. That section barred relief to an alien who was “convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.”5 The reference to “such felony” suggests that, at least at the time this amendment was enacted, aggravated felonies were considered felony offenses. Similarly, as discussed in Board Member Filppu‘s concurring opinion, the IIRIRA left intact at least one provision in the Act in which the term “such felon” is used in reference to a person convicted of an aggravated felony.

The legislative history of section 101(a)(43) of the Act indicates that Congress intended to include only the most serious offenses within the aggravated felony definition. The term “aggravated felony” was first introduced to the Act by section 7342 of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4469 (“ADAA“). As stated in the House Conference Report accompanying S. 358, which resulted in amendments to the aggravated felony definition by section 501 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5048, the intent of the 1990 amendments was to “broaden[] the list of serious crimes, conviction of which results in various disabilities and preclusion of benefits under the Immigration and Nationality Act.” H.R. Conf. Rep. No. 101-955 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797.

Since the ADAA first used and defined the term aggravated felony in 1988, Congress has expanded the definition on several occasions, signaling its growing concern over criminal aliens. See Matter of Truong, Interim Decision 3416 (BIA 1999); see also Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, § 222(a), 108 Stat. 4305, 4320. One of the bills containing amendments to the aggravated felony definition proposed limiting

aggravated felonies to those crimes that would have a base offense level of 12 or more under the United States Sentencing Guidelines (“U.S.S.G.“). See H.R. 22, 104th Cong. (1995). According to chapter 5, Part A, Zone D of the U.S.S.G. Sentencing Table, a base offense level of 12 provides, with one exception, for a minimum term of imprisonment of 12 to 18 months. See 18 U.S.C.A. ch. 5, pt. A (West 1996).

In the legislative history accompanying the bill that set forth the proposed amendments to section 101(a)(43)(A) of the Act that were eventually enacted in the IIRIRA, the Committee on the Judiciary referred to the offenses under that section as felonies. Specifically, in discussing the amendments precluding an alien convicted of an aggravated felony from applying for adjustment of status, the Committee noted that “[b]ecause of the expanded definition of ‘aggravated felony’ provided by sec. 161 of the bill, aliens who have been convicted of most felonies, if sentenced to at least 1 year in prison, will be ineligible for this relief.” S. Rep. No. 104-249, at 40 (1996) (emphasis added).

Overall, the legislative history and other interpretive aids provide less than clear guidance as to whether Congress intended that offenses falling within the aggravated felony definition at section 101(a)(43)(A) should be limited to felony offenses.

It is not evident from the language of the statute or from the legislative history whether Congress intended that an offense listed in section 101(a)(43)(A) must be a felony in order to be considered an aggravated felony. We therefore turn to the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (citing INS v. Errico, 385 U.S. 214, 225 (1966); Costello v. INS, 376 U.S. 120, 128 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)). The consequences of a finding that a crime is an “aggravated felony” are severe. Congress has specifically noted its intention that aliens convicted of such crimes should be subjected to various disabilities under the immigration laws and precluded from nearly all forms of relief. In light of these harsh consequences, we resolve the ambiguity presented by this case in favor of the respondent. Thus, we find that if an alien has been convicted of an offense of “murder, rape, or sexual abuse of a minor,” that conviction must be for a “felony” in order for the crime to be considered an “aggravated felony” under section 101(a)(43)(A) of the Act.

We recognize that the United States Court of Appeals for the Seventh Circuit has recently determined that section 101(a)(43)(A) of the Act encompasses state misdemeanor convictions for sexual abuse of a minor. See Guerrero-Perez v. INS, 2001 WL 210186 (7th Cir. 2001). The court in Guerrero-Perez noted that, although it would ordinarily defer to the Board‘s interpretation of immigration law, the Board‘s decision in the case before it was “silent with regard to the issue of whether Guerrero‘s misdemeanor conviction can be deemed an aggravated felony.” Id. at *2. Therefore, the court addressed the issue as a matter of first impression. After examining the structure and evolution of section 101(a)(43), the court concluded that “Congress, since it did

Notes

1
The Service has not challenged the respondent‘s contention that his crime was reduced from a felony to a misdemeanor under state law.
2
The current version of section 101(a)(43)(A) results from the addition of the offenses of rape and sexual abuse of a minor by section 321(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627 (“IIRIRA“).
3
The federal definition of a “felony” requires that the minimum term of imprisonment be “more than 1 year.” 18 U.S.C. § 3559(a)(5) (1994).
4
Section 237(a)(2)(E) of the Act was added by section 350 of the IIRIRA, 110 Stat. at 3009-640.
5
This language was added to former section 212(c) by section 511 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5052. Section 212(c) was repealed by section 304(b) of the IIRIRA, 110 Stat. at 3009-597.