*1 not cretion- conspiracy, merely those direct- to notice the error and therefore judgment to his affirm ly tied actions. of the District Court. Moreover, 3663A(b)(4), section CONCLUSION sentencing obliged court is to “reimburse expenses for ... incurred dur- the victim For above, the reasons stated we hold ing participation investigation (1) error was for the District Court prosecution of the or attendance at offense Zangari’s gains substitute vic- offense,” proceedings related 18 tims’ in calculating restitution, losses but that, § 3663A(b)(4) meaning had (2) — we decline to our exercise discretion to Stanley and Bank America un- Morgan error, notice Zangari has not losses, their dertaken determine actual shown that the error affected his substan- been Zangari would have liable for cost fairness, rights tial or undermined the in- including investigations, attorney of their tegrity, reputation or public judicial pro- accounting See United ceedings. costs. fees Amato, v. States judgment of the District Court is Cir.2008). It difficult is therefore not therefore AFFIRMED. that, we to imagine were vacate resti- order tution and remand for a determina- losses, actual Zangari victims’ be a larger
would faced with restitution
order than the one he is challenging. suggest not mean to that a defen-
We do appealing unpreserved
dant error in a prove certainty restitution order must to a Lloyd HIGGINS, Petitioner, Albert that the ordered restitution in fact exceed- ed But in the victims’ actual losses. literally case there has been no effort—at HOLDER, Jr., Eric H. United States argument anywhere Zangari’s oral Attorney Respondent. General, appeal
ten-page any brief on address —to Rather, of the Olano prongs. Zangari 11-924(ag). No. (while argument acknowledging oral Appeals, United States Court that the standard of review this case is Second Circuit. error) plain appears believe if he persuading us there succeeds was Submitted: 2012. Feb. below, automatically error we must vacate April Decided: restitution order. This is not law. Zangari’s persuade
It was burden to us
to notice the error in the District Court’s
order of restitution. Under the circum- here, he has
stances we conclude that not
carried this burden because he has failed prejudiced
to show the order him or fairness, integrity, pub-
undermined the reputation judicial proceedings.
lic Ac-
cordingly, we decline to our exercise dis- *2 Hume, Firm, Hume
Carlton L. Law (on LLC, Conn., Hartford, for Petitioner submission). General; Attorney
Tony West, Assistant Director; Kristof- McKay, Leslie Assistant McDonald, Attorney, R. Trial Office of er Division, Immigration Civil Litigation, Justice, Department United States (on D.C., Washington, Respondent for sub- mission). CARNEY,
Before: KATZMANN and RESTANI,* Judges, Judge. Circuit Judge KATZMANN concurs separate opinion.
PER CURIAM: Lloyd Higgins peti- Albert Petitioner February 11, for of a tions review by the Board decision issued Immigra- * Restani, designation. Jane A. the United The Honorable Trade, sitting by International States Court of “Board”) (the judgment “BIA” or the was inconsistent-with the Appeals of ac- denying requests quittal his cancellation on the charges. sexual-assault - 1229b(a) removal under 8 U.S.C. and a Appellate Court of Connecticut af- *3 inadmissibility of under U.S.C. waiver Higgins’s firmed conviction in a published 1182(h). appeal, § In order to resolve this 7, January decision dated 2003. Id. a conviction we must determine whether 2008, In Higgins November applied for for witness under Connecticut admission, admitted, and was to the Unit- (“CGS”) § 53a-151 con- General Statutes ed States at Miami Airport International relating an stitutes “offense obstruction a returning lawful permanent resident. within the of U.S.C. 9, 2009, On March Department the 1101(a)(43)(S), a definitional section of Security Homeland Higgins served with a Nationality Immigration the and Act (“NTA”) Appear immigration Notice to (“INA”) listing “aggravated the various proceedings, charging him with removabili- may disqualify petitioner that a felon[ies]” 1182(a)(2)(A)(i)(I) ty from forms relief. the rea- under 8 U.S.C. various For herein, we an explained sons conclude that a alien a convicted of crime involving under 28, 2009, conviction CGS 53a-151 consti- moral turpitude. May On Hig- tutes an “offense to obstruction of gins submitted a pleading written denying justice,” the peti- and we therefore dismiss the allegation concerning his criminal con- tion for review. viction denying and he was removable as
charged. He also indicated his intent to BACKGROUND seek termination of immigration pro- his Lloyd (“Higgins” “pe Albert Higgins ceedings, removal, adjust- cancellation of titioner”), Jamaica, a native and citizen of and, alternative, ment of status vol- was admitted the United States as a untary departure. hearings held before permanent lawful in April resident 1987. (“IJ”) immigration judge 30, on June 4, 2001, May convicted, On Higgins was 8, 2009, September 2009 and Higgins con- trial, following jury a of one count of tam ceded that his conviction constituted a pering with a witness violation CGS involving turpitude, crime moral ar- but § 53a-151. The conviction stemmed from gued that it not aggravat- did constitute an allegations that Higgins sexually assaulted felony. ed He also indicated his a minor and later if instructed her apply for a waiver inadmissibility she talked to the she police, should tell 212(h) 1182(h). INA, them “nothing that happened.” ever 30, 2009, On September denied IJ Higgins, State v. Conn.App. Higgins’s applications for relief or- and (2003). acquitted A.2d The-jury him Employ- dered removed to Jamaica. Higgins underlying sexual-assault analytical framework set forth charges, found him guilty but of witness BIA in its precedential decision re tampering, for crime Higgins which was Espinoza-Gonzalez, 22 I. & N. Dec. principally years’ sentenced to five incar (en (BIA 1999) banc), the IJ concluded ceration, suspended execution after one Higgins’s that conviction under year. conviction, CGS Higgins appealed his § 53a-151 constitutes an alia, offense arguing, inter the trial court an aggravated improperly judg denied motions a his for acquittal felony rendering Higgins ineligible ment of for can- notwithstanding ver dict a guilty and for new trial because the cellation of removal and waiver inad- verdict tampering charge missibility. Higgins BIA, on witness appealed to the for felony, petition we must Febru- dismiss on ed the IJ’s decision affirmed
which not, may jurisdiction; if exercise lack of IJ, applied Like ary petition].” jurisdiction [review reasoning Espinoza-Gonzalez Oouch, Accordingly, F.3d at 121. under CGS conviction concluded merits, merges issue jurisdictional of “an of- meets definition 53a-151 consider required to and we are therefore fense argument his Higgins’s substantive timely filed Higgins March On aggravat- conviction is not Court, this Connecticut review in this petition Mugalli v. felony under the INA. See ed appeal followed. *4 Cir.2001). (2d 52, 258 F.3d Ashcroft, DISCUSSION of this Under circumstances that his petition, Higgins argues case, In his that we review well-established § 53a-151 violating for CGS by conviction supplemented decision the IJ’s relating to constitute an “offense agency the final determination. BIA as justice” 88, of within the v. F.3d Mukasey, 508 See Mufied 1101(a)(43)(S), Cir.2007) (“When § and that he of 8 U.S.C. adopts the BIA justice as that term not in fact obstruct did supplements of the IJ and IJ’s decision Attor law. The defined under federal aspects emphasizes particular or decision (1) that: this Court ney General counters it, supple review the decision as of we IJ’s inter to the BIA’s reasonable defer agency should final mented BIA as the ob relating determination.”). “an of offense pretation to the factual We defer Espino of as set forth they struction the BIA the IJ if are findings of and (2) za-Gonzalez; for Higgins’s conviction evidence, and by substantial we supported § tampering 53a-151 witness under CGS legal novo conclusions and the review de an “offense to obstruc constitutes undisput legal principles of application (3) may not justice”; Higgins and Id. at 91. ed facts. appeal collaterally attack his use this Applicable INA’s Defini- II. Law: The
witness-tampering conviction.
Felony”
“Aggravated
of
Categorical Approach
Review
of
I. Jurisdiction
Standard
Our
felony”
“aggravated
ID Act of
A conviction
an
Under
REAL
109-13,
B,
Higgins
for both cancel-
ineligible
119 Stat.
renders
Pub.L. No.
Div.
“any
removal
of inadmis-
jurisdiction
lack
to review
lation of
and waiver
we
1229b(a);
§
sibility.
who
See 8
8 U.S.C.
against
of removal
an alien
U.S.C.
final order
1182(h).
“ag-
commit
The INA defines the term
having
reason of
is removable
include,
felony]
felony”
as relevant
drug
aggravated
gravated
ted
[certain
1252(a)(2)(C).
here,
“an offense
to obstruction
We
offense[s].”
perjury
perjury,
jurisdiction,
justice,
to review
subornation
retain
witness,
bribery
un
of a
for which
term
question of
a conviction
legal
whether
removal,
year.”
imprisonment
or the denial
at least one
derlying an order
1101(a)(43)(S).
case,
removal,
In this
from an
consti U.S.C.
of relief
order
was con-
Higgins
is no
aggravated felony. See 8 U.S.C.
there
tutes an
1252(a)(2)(D);
the term of
of an offense “for which
Dep’t
Oouch v. U.S.
victed
Sec.,
year.”
is at
imprisonment
Cir.
least one
Homeland
Pacheco,
2011).
juris
States v.
inquiry
“The
our
United
determines
(2d Cir.2000)
(construing the
aggravat-
If
conviction is
153-54
[the]
diction:
“for
the term of
BIA
imprison-
chapter
which
looked to the
year”
one
ment is at least
to refer
criminal code entitled “Obstruction of Jus-
imposed
actual sentence
rather
than the
guide
tice” to
its interpretation of the
term). Accordingly,
minimum
authorized
phrase,
specifically
which is not
defined in
if a
witness
conviction for
the United States Code.
at 891.
constitutes an
re-
CGS 58a-151
“offense
that,
general,
reasoned
“[i]n
ob-
justice,”
lating to obstruction of
we must
justice
struction of
listed in
offenses
Higgins’s petition.
dismiss
§§
1501-1518 have as an element
proceedings
interference
of a tri-
order
determine whether a
require
bunal
to harm or
conviction under CGS 53a-151 “relat[es]
retaliate
others who
apply
cate
or might otherwise
gorical approach “that
looks to the ele
cooperate.”
so
Id. at 892. The BIA
ments of
fur-
penal
statute rather than the
Oouch,
particulars
by utilizing
ther reasoned
the alien’s conduct.”
the term
122;
see
Taylor
also
United
INA,
“obstruction of
Con-
*5
States,
575, 601-02,
495 U.S.
110 S.Ct. gress intended to limit
types
of of-
2143,
(1990);
Id. at 893-94.
BIA
interpreting
state
interpretation
phrase,
narrow
laws,
criminal
we must review its decision
concluded, is the fact that
the Su-
not charged
de novo
the BIA is
has construed the “obstruc-
preme Court
laws.”) (inter
of these
administration
in a
justice” offenses
manner
omitted).
quotation
and citations
nal
marks
declining
applicability, thereby
limits their
clear, therefore,
no
It is
that we owe
defer
full
the various
accord
offenses
conclusion that
ence
the BIA’s ultimate
arguably wide
Id. at
scope.
of their
range
Higgins’s
conviction for witness
Aguilar,
(citing United States v.
892-93
qualifies
under Connecticut law
as an “of
598-99,
S.Ct.
515 U.S.
fense
to obstruction of
(1995) (interpreting
L.Ed.2d
Mugalli
(deferring
prohibiting
statute
in-
a “catchall”
the BIA’s construction of
term “at
injuring
juror gen-
officer
fluencing or
INA,
tempt”
declining
used in the
but
require
that the action taken
erally, to
to defer
BIA’s conclusion that a
to the
the accused must be with an intent
criminal
conviction
a federal
statute
grand
judicial
jury proceed-
influence
necessarily
“attempt”
as the
constituted
ings)).
it).
BIA had defined
principles
applying
Guided
these
A
question,
more difficult
categorical approach,
the BIA conclud
whether
deference to the
we owe
BIA’s
misprison
felony
ed
of a
key phrase,
the INA’s
an “offense
to obstruc
constitute
*6
justice.”
of
In
“it
critical
justice” because
lacks the
tion of
general, pursuant
to Chevron U.S.A. Inc.
an affirmative and intentional
element of
Council,
v. Natural Resources Defense
intent,
specific
to
motivated
attempt,
Inc.,
837,
2778,
467
104 S.Ct.
U.S.
81
process
Es
justice.”
interfere with
(1984), reviewing
L.Ed.2d 694
courts are
22 I. N.
pinoza-Gonzalez,
& Dec. at 894.
required
interpre
“to defer to
words,
the BIA
other
concluded
tation of
it administers
the statute
when
qualify
for a crime to
as an
relat
“offense
the intent
is unclear
Congress
and the
justice,”
obstruction of
in
to
must
agency’s determination is reasonable.”
(1)
as
both
reus
clude
elements
the actus
INS,
105,
112
Sui
Cir.
of an “active interference with proceedings
2001). To determine whether deference is
investigation,
of a tribunal or
action or
appropriate, we conduct
familiar two-
threat of action
those who would
step
analysis:
Chevron
(2)
process
justice,”
one,
At
step
Chevron
we consider de
“specific
the mens rea of a
intent to inter
has
Congress
clearly spo-
novo whether
fere with the
Id. at
ken to
at issue.
question
If the
893; see also Renteria-Morales v. Muka
clear,
intent of
is
Congress
is the
(9th Cir.2008).
sey,
F.3d
1086
matter;
court,
end
as well
question
appropriate
A threshold
is the
give
as the
effect
agency, must
to the
level of deference we
accord the
should
unambiguously expressed
of Con-
general,
interpretation.
BIA’s
to the
intent,
gress.
Congress’s
To ascertain
legal question
that a
to
requires
extent
us
begin
statutory
we
text
with
laws,
construe state or federal criminal
unambiguous,
if its
fur-
language is
no
BIA,
owe no deference to the
and our
necessary....
ther
If
inquiry is
the stat-
Gonzales,
utory
ambiguous,
review is de novo. See
language
Santos v.
is
(2d Cir.2006)
statutory
cu-
to canons of
(per
we resort first
construction, and,
statutory
if
mean-
to accord
Chevron deference to the BIA
ambiguous,
legislative
only
therefore reviewed its decision
ing remains
represented
determine whether it
a “per-
interpretive
see if
history, to
these
clues
missible
language
construction
clearly
Congress’s intent.
reveal
(internal quota-
the INA.”
at
Congress
If
has not
we determine that
omitted).
tion marks
Similarly, Rente-
question
directly
precise
addressed
Mukasey,
ria-Morales v.
one the Fifth and Ninth Circuits have both is war- concluded deference Circuit, however, The Third has declined Ashcroft, *7 ranted. In Alwan v. defer to the BIA’s reasoning. Denis (5th Cir.2004), 507 the Fifth Circuit held U.S., Att’y v. Gen. 201 F.3d of that a for of contempt conviction court in Cir.2011), the Third Circuit considered 401(3) violation of 18 U.S.C. constitutes petitioner’s tamper- whether conviction for an jus- “offense to obstruction of ing physical with in evidence violation of holding, (“NYPL”) tice.” Id. at 514. In so the New York Penal Law 215.40(2) Fifth obliged § Circuit concluded that it was “relating constitutes a crime applied 1. The Circuit degree, Ninth has the same the second in viola- misdemeanor analysis following in other two cases its deci Washington of Code Revised sion in Renteria-Morales. 9A.76.080, Salazar-Luvi aggravat- does not constitute an (9th Mukasey, ano v. F.3d Cir. felony ed the under INA the Wash- 2008) (holding aiding abetting that ington falling statute "criminalizes conduct escape attempted custody from in violation of generic outside of the bounds the ob- qualify § 751 aggra does not as an by Espi- struction crime of as defined 1101(a)(43)(S) felony under vated Section be require [in that] it does not noza-Gonzalez cause "a violation of 18 involving that defendant commit act either require pending judicial existence of a proceedings active with interference a tribu- of proceeding, knowledge specif much of less investigation, nal or threat action or of proceeding”) ic intent obstruct such a action those who would (footnote omitted); Trung Hoang Thanh v. (internal justice”) quota- with the of Holder, (9th Cir.2011) omitted) (emphasis original). tion marks in (holding rendering criminal assistance in Gonzalez; the issue poses it particular, Id. at 203-04. of obstruction affirmative, agency’s to accord an deference of what answering this charged interpret- of the statute reasoned that Third Circuit interpreta- administering when phrase am- an obscure con- “present not based on justice” does tion is itself agency committed We or a matter criminal statutes. biguity of federal struction courts to discretion,” requires ques- but rather these definitively resolve need not phrases ‘relating discrete construe “two the Third Because today, however. tions — justice’' ‘obstruction to’ and phrase “re- interpretation of Circuit’s —both Id. at capable of definition.” which are justice” is broader lating to obstruction latter, Third respect to the 209. With BIA, any adopted by the than the one “easily can courts concluded that Circuit as an “offense qualifying crime Congress conduct types determine under the BIA’s justice” by re- encompass” phrase intended the an “of- necessarily constitute definition will justice” of- ferring to the “obstruction relating to obstruction fense the United under Title 18 of fenses listed reasoning as Third Circuit’s Indeed, Third Circuit Code. Id. States conclude, Consequently, because well. of the criminal that “construction reasoned below, explained the reasons is a task outside provisions Title 18 tampering under for witness conviction congression- special competence BIA’s an “offense re- constitutes CGS 53a-151 very part much a while it is delegation, al even under lating to obstruction (internal Id. competence.” Court’s definition, we BIA’s more restrictive omitted). Further, marks quotation defer- definitively decide whether need not previously had noted that it Third Circuit in Espinoza- BIA’s decision ence to the ‘re- phrase of the “discussed the required. Gonzalez is 1101(a)(43) Title lating [of to’ Section INA], observing that the SectionlOl General Statutes III. Connecticut and ‘must expansively is to be read § 53a-151 narrowest strictly confined to its not be interpreta- now the BIA’s Adopting for ” Zimski, meaning.’ (quoting Drakes categorical approach, applying tion and Cir.2001)). Accord- whether CGS 53a- we must consider concluded that ingly, the Third Circuit 151(a) requisite includes as elements reasoning BIA’s owed no deference to the The statute and mens rea. actus reus the issue de novo. proceeded to review provides: *8 so, arrived Having done the Third Circuit Tampering with a wit- 53a-151. Sec. interpretation of at a far broader felony. ness: Class C phrase (a) with guilty A is person BIA, by the con- than the one formulated if, believing that an official a witness to appropriate cluding that would be or about to be pending is proceeding interrelationship” between the “survey the in- instituted, attempts to he induces or the crimes enumerated crime at issue and testify falsely, with- a witness to duce of Title section obstruction testimony, legal process sum- elude hold ‘relating to’ “apply 18 and himself testify or absent moning him to connec- seeking logical a or causal broadly, any proceeding. from official Denis, at 212. tion.” re- split questions circuit raises This plain language From level of deference
garding appropriate § statute, apparent that CGS 53a-151 Espinoza- in to accord the BIA’s decision gal includes the reus: or clearly requisite process,” actus to “absent” himself from an proceedings proceeding.” Additionally, an “active interference “official investigation, require or action or both a a tribunal or statutes nexus to an official proceeding. Compare of action Arthur threat those who would Andersen States, LLP in v. United 707- process justice.” Espi U.S. 2129, 161 (2005) noza-Gonzalez, 22 125 S.Ct. L.Ed.2d I. & N. Dec. Moreover, (construing 18 U.S.C. a analogous require “obstruc to “nexus” between obstructive act and prohibits “Hamper statute witness, victim, proceeding), (spe a with CGS ing with or an informant” 53a-151 cifically a strikingly requiring language: “belie[f] similar that an official proceeding pending or about is to be insti (b) knowingly intimi Whoever uses dation, suades [2] threatens, another person, or corruptly or attempts per tuted”). Accordingly, it is clear 53a-151 satisfies actus reus element that CGS of an “offense so, engages misleading or conduct do justice” indeed, Higgins does not appear person, another to— — toward with intent argue otherwise.
(1) influence, delay,
prevent
or
requi-
CGS 53a-151 also includes the
testimony
any person
official
an
“specific
site mens rea: the
intent to inter-
proceeding;
fere with the
Espino-
(2) cause or
to—
any person
induce
za-Gonzalez, 22 I. & N. Dec.
By
at 893.
(A) withhold testimony, or withhold
terms,
its
53a-151 provides
CGS
that
record, document,
object,
or other
person
guilty
of tampering
“[a]
with a
an officialproceeding;
from
if, believing
witness
that an
pro-
official
(B) alter,
mutilate, or
destroy,
con-
ceeding is
or about
pending
to be institut-
object
an
to impair
ceal
with intent
ed,
attempts
he induces or
to induce
object’s
availability
integrity
testify falsely.”
witness to
The Connecti-
in an officialproceeding;
use
Supreme
explained
cut
Court has
that this
(C)
legal process
evade
summoning
“implicit”
text
require-
contains
person
witness,
appear
that
as a
ment:
record, document,
produce
or oth-
The
language
plainly
53a-151
object, in an
proceeding;
er
official
potential perpetrators
warns
(D) be absent
pro-
from an official
any
statute
applies
conduct that
ceeding to which
person
such
has been
prompt
testify
intended to
a witness to
by legal process;
summoned
falsely or to refrain from
testifying in
proceeding
official
perpetrator
be
impris-
shall
fined under this title or
be pending
believes to
or imminent.
years,
not more than
or both.
oned
legislature’s unqualified
use of
§ 1512.
clearly
Both the federal and
persons
word “induce”
informs
conduct,
Connecticut statutes
the act of
ordinary intelligence
any
criminalize
*9
“induc[ing]” or
“induce” an-
attempting
physical
verbal,
to
whether
it be
or
can
person
testimony”
give
liability.
other
to “withhold
or
potentially
rise to criminal
testify falsely. They
prohibit inducing
Although
also
statute
expressly
to
a witness
either
or
“le-
perpetrator
“evade”
“elude”
mandate that the
to
intend
previously interpreted "corruptly
pur
persuade
by
improper
2. We have
motivated
were
persuades”
government
pose.”
Thompson,
to mean that "the
United States
1996).
prove
attempts
Cir.
must
the defendant's
to
for witness
prosecution
in a
clarifying
alter or withhold
witness to
cause the
defense, as
an affirmative
“it is
requirement
tampering,
testimony,
implicit
his
as
the burden
is read
the defendant has
the statute
to which
apparent when
is
evidence,
appli-
limiting the statute’s
of the
By
by
preponderance
proof
a whole.
perpetra-
solely
where
of lawful
to situations
consisted
cation
the conduct
is
proceeding
that an official
in-
believes
sole
tor
that the defendant’s
conduct and
instituted,
induce,
about to be
cause
pending
encourage,
to
tention was
not envi-
that it did
indicated
legislature
testify truthfully.” 18
to
person
the other
inadvertent-
outlawing conduct that
sage
1512(e).
una-
argument
This
U.S.C.
falsely
testify
a witness to
ly convinces
statute criminal-
The Connecticut
vailing.
legislature’s
testify.
to
to refuse
attempting
inducing or
only the act of
izes
“induce” connotes
of the verb
choice
“falsely”
testify
or to
a witness to
to induce
of the crime
component
volitional
53a-151(a).
testimony.” CGS
“withhold
absent
that would have been
tampering
jury finds a
if a
Accordingly,
Connecticut
neutral verb
employed
a more
had
statute, it nec-
guilty under the
defendant
Furthermore,
the stat-
as “cause.”
such
defendant
essarily determined
unsuccessful, as well
to
application
ute’s
testify
to
encouraging the witness
was not
successful,
induce a wit-
attempts to
Moreover,
the State
truthfully.
because
testimony supports
to render false
ness
part
required
prove,
to
Connecticut
the statute focuses
conclusion that
our
chief,
sought
that the defendant
its case
perpetrator
state of the
on the mental
falsely or to
testify
induce a witness
inno-
from
distinguish culpable conduct
stat-
testimony, the Connecticut
withhold
cent conduct.
the de-
actually
protective of
ute is
more
668-69,
Cavallo,
200 Conn.
State v.
statute, which
than the federal
fendant
added) (in-
(1986) (emphasis
513 A.2d
proof
on the defen-
places the burden
omitted);
id.
citations
see also
ternal
was to
that his intention
dant
to show
(“[A]
guilty
defendant is
107
decision.”) (cit- unambiguously
review the BIA’s removal
expressed intent of Con-
v,
Ashcroft,
842-43,
Abimbola
gress.”
If,
Id. at
ous with
to the specific
CONCLUSION
question for the court is whether the agen-
cy’s
permissible
answer is based on a
con-
Higgins’s
have considered
remaining
We
struction
of the statute.” Id. at
arguments and
them to
find
be without
S.Ct. 2778.
§
merit. Because CGS 53a-151 fulfills the
elements of the generic offense of “ob-
case,
1101(a)(43)(S)
§
8 U.S.C.
struction of
we conclude that a does not define the term “relating to ob-
§
conviction under CGS
53a-151 is cate-
struction
by
reference to state
gorically “an
offense
to obstruc-
law
portion
or to another
of the United
8 U.S.C.
Code;
fact,
1101(a)(43)(S)
States
in
Section
1101(a)(43). Thus,
§
the BIA did not err
does not define the phrase at all. The
in affirming
holding
Higgins’s
the IJ’s
absence of a
particularly
definition is
sig-
conviction for witness tampering under
nificant'here
many
aggra-
qualified
ag-
Connecticut state law
as an
1101(a)(43)
vated felonies
listed
Section
gravated felony, and we therefore DIS-
are,
fact,
defined by references to the
petition
MISS the
for review.
United States Code. For example,
trafficking
term “illicit
in a controlled sub-
KATZMANN,
Judge,
Circuit
by
stance” is defined
reference to Section
concurring:
102 of
Act,
the Controlled Substances
§
I concur in the
judgment
Court’s
and U.S.C.
U.S.C.
1101(a)(43)(B).
§
agree
reasoning.
with its
I
sepa-
Similarly,
write
the subsection
rately simply to
my
regarding
add
views on the
“illicit
trafficking
firearms or
opinion
the Court’s
destructive devices ...
in explosive
ma-
reach, namely,
specifically
whether we owe deference
terials”
defines “destructive de-
opinion
Espinozar-
by
§
the BIA’s
in In re
vices”
reference to 18 U.S.C.
Gonzalez,
(BIA 1999).
“explosive
I. & N. Dec. 889
materials”
reference to 18
841(c). Indeed,
§
many
U.S.C.
of the of-
Espinoza-Gonzalez,
inter-
1101(a)(43)
fenses listed under 8 U.S.C.
preted
the meaning
of 8 U.S.C.
are described
reference to provi-
first
1101(a)(43)(S),
a definitional section of
Code,
sions in the
only
United States
charged
the statute the BIA is
with admin-
by parenthetical
later
descriptions of the
istering:
the Immigration
Nationality
See,
general
e.g.,
nature
the crime.
(“INA”).
Act
When reviewing
agen-
1101(a)(43)(H)
(listing
U.S.C.
an ag-
cy’s interpretation of the statute it admin-
gravated felony “an offense described in
isters,
employ
step
the familiar two
875, 876, 877,
18[,
section
or 1202 of Title
inquiry set forth in Chevron U.S.A. Inc. v.
United States
(relating
Code]
to the de-
Council, Inc.,
Natural Resources Defense
ransom)”).
receipt
mand for or
837, 842-44,
467 U.S.
104 S.Ct.
(1984).
one,
L.Ed.2d 694
At
step
Only minority
Chevron
of the subsections under
1101(a)(43)
Congress
we first ask “whether
has direct-
descrip-
contain no
ly spoken to the precise quéstion at issue.
tion or elaboration whatsoever.
In addi-
clear,
Congress
1101(a)(43)(S),
If the intent of
that is
tion to 8 U.S.C.
another
n
matter;
court,
the end of the
for the
undefined
subsection
1101(a)(43)(A),
agency,
give
well as the
must
effect to the
specifies
which
*11
(2d
LLC,
Cir.2011),
“murder,
rape,
sexual
635 F.3d
and
[and]-
crimes of
proceed
step
that
aggravated felonies.
we must
Chevron
two.
abuse of a minor” are
“sexual abuse of
interpreting
phrase
In
two,
step
At
must consider
Chevron
minor,”
Third
observed:
a
Circuit
am
whether the
resolution of the
(a)(43)(A)
any
is devoid of
Section
biguity
permissible
is based on a
construc
descriptive
parentheticals
or restrictive
Chevron,
tion of the statute.
467 U.S.
“murder,
simply lists the crimes of
uphold
retaliate justice might otherwise 22 I. Dec. at cooperate.”
so & N. 892. deference, therefore,
On the adopt approach
I would somewhere adopted by the two our sister
between Circuit, I
circuits. Unlike the Third believe on
the statute is silent of 8 1101(a)(43)(S), and that we must
therefore defer to the BIA’s construction statute, extent
within the domain of the special law,
expertise immigration long itas
is reasonable. Unlike the Fifth and Ninth
Circuits, however, I simply would not de-
fer to the BIA’s of the fed- statutes,
eral obstruction of over special expertise,
which the BIA has no
but rather review them de novo. CUFF, Margaret Cuff,
William on son, B.C.,
behalf of their minor
Plaintiffs-Appellants,
VALLEY CENTRAL SCHOOL DIS
TRICT, Knecht, Barbara sued in her capacity, Defendants-Ap
individual
pellees.
Docket No. 10-2282-cv. Appeals,
United States Court of
Second Circuit.
Argued: March 2011.
Decided: March