RAMON LEDEZMA-GALICIA, Pеtitioner, v. ERIC H. HOLDER Jr., Attorney General, Respondent. RAMON LEDEZMA-GALICIA, Petitioner-Appellant, v. PHILLIP C. CRAWFORD; ERIC H. HOLDER Jr., Attorney General; JANET NAPOLITANO, Secretary of Homeland Security, Respondents-Appellees.
No. 03-73648, No. 04-35048
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 22, 2010
20465
Agency No. A38-883-099; D.C. No. CV-03-01316-REJ. On Petition for Review of an Order of the Board of Immigration Appeals. Appeal from the United States District Court for the District of Oregon. Robert E. Jones, District Judge, Presiding. *Eric H. Holder Jr., is substituted for his predecessor, Michael Mukasey, as Attorney General of the United States, pursuant to FED. R. APP. P. 43(c)(2). **Janet Napolitano is substituted for her predecessor, Michael Chertoff, as Secretary of Homeland Security, pursuant to FED. R. APP. P. 43(c)(2).
Submission Withdrawn March 9, 2005
Resubmitted March 22, 2010
Filed March 29, 2010
Amended December 22, 2010
Before: Stephen Reinhardt, Marsha S. Berzon, and Jay S. Bybee, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Bybee
Stephen W. Manning and Jessica M. Boell, Immigrant Law Group LLP, Portland, Oregon, for the petitioner/petitioner-appellant.
Peter D. Keisler, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, Ernesto H. Molina, Jr., Senior Litigation Counsel, and Leslie McKay, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent/respondent-appellee.
ORDER
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the
The panel has voted to amend its opinion. The majority and dissenting opinions published at 599 F.3d 1055 are superseded in full by the amended opinions filed concurrently with this order. With those amendments, the petition for rehearing en banc is DENIED.
No future petitions for rehearing or rehearing en banc will be entertained.
OPINION
BERZON, Circuit Judge:
Ramon Ledezma-Galicia, a lawful permanent resident alien, was convicted in an Oregon state court in September 1988 of sodomy, for sexually molesting a minor. Current law provides that “sexual abuse of a minor” is an “aggravated felony” as defined by
A. Overview
Ledezma-Galicia entered the United States in 1979 and became a lawful permanent resident on February 12, 1985. In June 1987, Ledezma-Galicia molested a ten-year-old girl. He was subsequently charged with sodomy in the first degree, in violation of
In April of 2003, the Bureau of Immigration and Customs Enforcement charged Ledezma-Galicia with removability because of his 1988 conviction. See Ledezma-Galicia v. Crawford, 294 F. Supp. 2d 1191, 1193 (D. Or. 2003) (summarizing the factual background). Under current law, sexual abuse of a minor is an aggravated felony,
Three laws are relevant to our inquiry, all of which amended the Immigration and Nationality Act (“INA“): the
Ledezma-Galicia argues that the ADAA, which limited aggravated felony deportations to post-ADAA convictions, protects him from being deported based on his pre-ADAA conviction. The Attorney General maintains, in contrast, that the ADAA is not relevant to Ledezma-Galicia‘s circumstances, because its temporal limitation on the aggravated felony ground of deportation did not survive the later passage of the IMMAct in 1990 and of IIRIRA in 1996. Applying the heavy presumptions against repeals by implication, see Nat‘l Ass‘n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-64 (2007); Radzanower v. Touche Ross & Co., 426 U.S. 148, 153-54 (1976), and against statutory retroactivity, see generally Landgraf v. USI Film Products, 511 U.S. 244 (1994), we agree with Ledezma-Galicia that the ADAA‘s temporal limitation remains in effect as an exception to other temporal provisions enacted later, and precludes his deportation.
The ADAA of 1988 made a series of amendments to the INA. In it, Congress, for the first time, both created the category of crimes denominated “aggravated felonies,” ADAA § 7342, 102 Stat. at 4469-70, and provided that any alien who was convicted of an “aggravated felony” at any time after entering the United States was subject to deportation. Id. at § 7344(a), 102 Stat. at 4470-71 (adding aggravated felony convictions to the statutory list of grounds for deportation);4 see also Leocal v. Ashcroft, 543 U.S. 1, 4 n.1 (2004) (tracing the origins of the term “aggravated felony“).
At the time it was enacted in 1988, the ADAA did not make Ledezma-Galiсia deportable, for two reasons: First, the ADAA defined only murder, illegal drug trafficking, and firearm and destructive device trafficking offenses—not sexual abuse of a minor—as aggravated felonies. See ADAA § 7342.5 Second, the ADAA was enacted on November 18, 1988, just over two months after Ledezma-Galicia was convicted of the underlying sodomy offense at issue here. A temporal limitation in the ADAA expressly constrained the applicability of the new aggravated felony removal ground, providing:
The amendments made by [§ 7344(a) to INA § 241(a)(4)] shall apply to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony.
So, at the time of Ledezma-Galicia‘s conviction for sexually molesting a minor, there was as yet no provision in the INA making aliens removable as a result of aggravated felony convictions. And when Congress, just over two months later, enacted the ADAA, created the category of “aggravated felonies,” and made conviction of an aggravated felony a ground for deportation, that ground for deportation (a) was expressly made inapplicable to individuals who, like Ledezma-Galicia, were convicted before the ADAA‘s enactment, and (b) did not cover sexual abuse crimes such as Ledezma-Galicia‘s.
C. The IMMAct of 1990
Two years after it enacted the ADAA, Congress overhauled deportation law by passing the IMMAct. Like the ADAA, the IMMAct alone did not change Ledezma-Galicia‘s immigration status, because it did not define Ledezma-Galicia‘s crime, sexual abuse of a minor, as a deportable offense. The Attorney General maintains, however, that § 602 of the IMMAct did affect the temporal reach of ADAA § 7344(a), which had created the aggravated felony ground of deportation.
IMMAct § 602(a) replaced the INA‘s list of grounds for deportation with a revised list. As recited in the text of IMMAct § 602(a) and codified at
In addition, subject to certain exceptions, IMMAct §§ 602(c) and (d) stated that the revised list of grounds for deportation applied to all aliens regardless of their date of
Notwithstanding the amendments made by this section, any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act,6 as in effect before the date of the enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that (1) any such alien entered the United States before the date of enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act.
104 Stat. at 5081-82. IMMAct § 602(d), in turn, provided that “[t]he amendments made by this section, and by section 603(b) of this Act, shall not apply to deportation proceedings for which notice has been provided to the alien before March 1, 1991.” 104 Stat. at 5082.
In short, the IMMAct did not make Ledezma-Galicia removable, beсause it still did not classify the sexual abuse of a minor as an aggravated felony for which one could be removed. Nevertheless, both parties regard IMMAct § 602 as central to whether the aggravated felony ground of deportation applies to Ledezma-Galicia. We will return to discuss that section below, but first we recount one final enactment amending the INA and affecting Ledezma-Galicia‘s case.
In 1996, six years after enacting the IMMAct, Congress passed the final piece of this statutory puzzle, IIRIRA. IIRIRA made Ledezma-Galicia‘s crime a deportable offense by adding “sexual abuse of a minor” to the definition of aggravated felony.
Thus, IIRIRA now classifies Ledezma-Galicia‘s crime as an aggravated felony. But that classification alone does not render him removable. Rather, Ledezma-Galicia is only removable under IIRIRA if, as the government urges, § 602 of the IMMAct repealed the section of the ADAA specifying that an aggravated felony conviction entered prior to November 18, 1988, cannot serve as the basis for a charge of removability. Whether that is so is the central question in this case.
E. Procedural history of this case
On April 13, 2003, the Bureau of Customs and Immigration Enforcement, relying on IIRIRA‘s revised definition of aggravated felony, initiated removal proceedings against Ledezma-Galicia by filing a Notice to Appear. The Notice charged Ledezma-Galicia with removability pursuant to
Six days later, Ledezma-Galicia filed a petition for a writ of habeas corpus in the U.S. District Court for the District of Oregon. While that petition was pending, Ledezma-Galicia filed a timely petition for review with this court. The district court denied the habeas petition in a published decision, from which Ledezma-Galicia timely appeals. We treat Ledezma-Galicia‘s appeal of the district court‘s denial of his habeas petition as a timely filed petition for review, Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052-53 (9th Cir. 2005), and consider it together with Ledezma-Galicia‘s other petition, as the legal issues presented in the two petitions are identical.
II. JURISDICTION
The question we address—whether Ledezma-Galicia (or any other alien) is removable for an aggravated felony conviction that occurred before November 18, 1988—is purely one of law. We therefore have jurisdiction to review it under
III. DISCUSSION
[1] Pursuant to IIRIRA, aliens convicted after the enact-
A. IMMAct § 602 and ADAA § 7344(b)
[2] To repeat, ADAA § 7344(b) limited aggravated felony deportations to convictions obtained on or after November 18, 1988, while IMMAct § 602(c), without mentioning aggravated felonies specifically, provided generally that, with a few exceptions, grounds for deportation should apply to all aliens, regardless of the date on which “the facts” triggering deportability occurred.
[3] Recognizing the surface tension between ADAA § 7344(b) and IMMAct § 602(c), Ledezma-Galicia urges us to conclude, first, that the latter did not expressly repeal the former, and, second, that the latter provision should not be read to repeal the former by implication, because doing so would violate both the presumption against implied repeals and the presumption against retroactively applied statutes. See generally Nat‘l Ass‘n of Home Builders, 551 U.S. at 662-64; Landgraf, 511 U.S. 244. The Attorney General, on the other hand, contends that IMMAct § 602(c) overrides the very specific directive of ADAA § 7344(b), a conclusion that the BIA
[4] We agree with Ledezma-Galicia. We explain, first, that, because this case involves the retroactive application of the immigration statutes, we are foreclosed from according Chevron deference to the BIA‘s decision in Lettman. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); St. Cyr, 533 U.S. at 320 n.45 (2001). We next conduct our own analysis of the IMMAct and conclude that it cannot be read to repeal ADAA § 7344(b) either expressly or impliedly. Finally, we consider whether this case is controlled by United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc) and United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994), two cases addressing firearms convictions covered by a clause similar to ADAA § 7344(b), but conclude that it is not.
1. The BIA and Chevron deference
Although the BIA in Matter of Lettman addressed the very question before us—whether the IMMAct repealed ADAA § 7344(b)—Chevron deference to the BIA‘s decision is inappropriate. In INS v. St. Cyr, the Supreme Court held that courts should not defer to agencies in determining whether a statute is to be applied retroactively, explaining that:
[W]e only defer . . . to agency interpretations of statutes that, applying the normal “tools of statutory construction,” are ambiguous. Chevron, 467 U.S. at 843 n.9. Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, Landgraf, 511 U.S. at 264, there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve.
St. Cyr, 533 U.S. at 320 n.45 (internal citations altered).
[5] If the BIA‘s reasoning in Lettman were persuasive, we might nonetheless adopt it as our own. But the BIA took a fundamentally wrong turn in its analysis, and so arrived at an interpretation at odds with the plain language of the two statutes. Matter of Lettman concentrated on the “except” clause in IMMAct § 602(c), which provides: “Except as otherwise specifically provided in such section and subsection (d) . . . .” The BIA determined, first, that the clause excepted from the rest of IMMAct § 602(c) the portions of INA § 241 that otherwise conflicted with § 602(c). But § 602(c) was ambiguous, the agency concluded, about which version of INA § 241 the IMMAct provision referred to in the “except” clause. 22 I. & N. Dec. at 372-73. Lettman‘s position was that the “except” clause referred to the pre-IMMAct version of INA § 241—that is, INA § 241 as it stood after the ADAA‘s passage, before the IMMAct amended it. Id. at 373. The BIA rejected this reading of the statute and instead adopted the Immigration and Naturalization Servicе‘s (“INS“) position that the clause referred to the post-IMMAct version of INA § 241. Id. at 373-74. Having made that determination, the BIA went on to conclude that § 602(c) of the IMMAct overrode § 7344(b) of the ADAA, because the post-IMMAct version of INA § 241 contained no temporal limitation on the application of the aggravated felony ground for deportation.
As it turns out, however, it does not matter whether IMMAct § 602(c) should be read to refer to the pre-IMMAct or the post-IMMAct version of § 241(a). Contrary to Lettman‘s supposition, the answer to that question has no bearing on whether the ADAA‘s temporal limitation survived the IMMAct‘s passage.
[6] The key to the BIA‘s mistake is this: ADAA § 7344(b) was never part of the text of INA § 241 at all. True, ADAA § 7344(a) provided: “Section 241(a)(4) [of the INA] (8 U.S.C.
[7] In other words, ADAA § 7344(b) was never a subsection of INA § 241. Instead, it was always an entirely freestanding temporal limitation provision. As a result, neither the “except” clause of IMMAct § 602(c) (“Except as otherwise specifically provided in such section and subsection (d) . . . .“), nor the affirmative provision of § 602(c)‘s second sen-
In sum, Lettman is not entitled to Chevron deference because it involves a question of statutory retroactivity. While we might nonetheless follow its reasoning if it were persuasive, we decline to do so because its reasoning cannot be squared with the statute.11
3. Implied repeal
[8] Even though the BIA‘s reasoning in Lettman was fundamentally flawed, we might still reach, for independent rea-
[9] As the Supreme Court has had the occasion to remind us recently, “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest.” Nat‘l Ass‘n of Home Builders, 551 U.S. at 662 (internal quotation marks and alterations omitted). There are narrow circumstances in which implied repeals will be recognized, however. Broadly speaking,
[i]t is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum, unless the later statute expressly contradicts the original act or unless such a construction is absolutely necessary in order that the words of the later statute shall have any meaning at all.
Traynor v. Turnage, 485 U.S. 535, 548-49 (1988) (internal quotation marks, alterations, and citations omitted). More specifically, the Supreme Court has recognized “two well-settled categories of repeals by implication — (1) where provisions in the two acts are in irreconcilable conflict . . . ; and (2) [where] the later act covers the whole subject of the earlier one and is clearly intended as a substitute.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976).
Under either rubric, we cannot conclude that a later statute impliedly repeals an earlier one unless ” ‘the intention of the
Applying these principles, “[b]oth this court and the Supreme Court have found no [implied repeal] where, by creating minor exceptions to later-enacted statutes based on earlier ones, both statutes can be preserved.” Lujan-Armendariz, 222 F.3d at 744. In Donaldson v. United States, 653 F.2d 414, 418 (9th Cir. 1981), for example, we characterized as a “small puncture in a broad shield” the relationship between an earlier statute regarding resort owners’ liability and a later statute that applied to all real property owners. Id. at 418. Although the two statutes conflicted on their face, we reconciled them by allowing the earlier statute to serve as a narrow exception to the later one.
Similarly, Lujan-Armendariz preserved a provision in the Federal First Offender Act (FFOA) as an exception to a later law that defined the term “conviction” for immigration purposes. The FFOA provision allowed courts “to sentence the defendant in a manner that prevents him from suffering any disability imposed by law on account of the finding of guilt.” 222 F.3d at 735. The immigration law would otherwise have conflicted with the FFOA. But we held that the earlier statute was not “irreconcilable” with the latter—and thus not impliedly repealed—beсause to resolve the conflict between the two, “[w]e need[ed] only construe the later-enacted immigration law as subject to the minor exception required by the provisions of the earlier-enacted [FFOA].” Id. at 745; see also
Applying these precepts, ADAA § 7344 and IMMAct § 602(c) meet neither implied repeal standard.
i. IMMAct § 602(c)
[10] It is quite evident that IMMAct § 602(c) is a more general statutory provision than ADAA § 7344(b). IMMAct § 602(c) directs generally that revised INA § 241 applies without regard to whether “the facts, by reason of which an alien is described as removable in [INA § 241],” occurred prior to IMMAct‘s enactment. But it does not specifically cover the impact of convictions for crimes generally, or the impact of pre-1988 convictions in particular. ADAA § 7344(b), in contrast, narrowly and expressly covered both of these considerations, and, even more narrowly, did so with regard to the aggravated felony ground of deportation only.
[11] True, when applied after 1990 to pre-ADAA aggravated felony convictions, the affirmative provision of IMMAct § 602(c), which covers all of INA § 241, could, read literally, “produce [a] differing result when applied to the same factual situation” as ADAA § 7344(b). Radzanower, 426 U.S. at 155. That is, with the “except” clause out of the picture, IMMAct § 602(c), on its face, could be read to allow deportation for such convictions, while ADAA § 7344(b) would not. But, as Radzanower teaches, “that . . . states the [implied repeal] problem” but does not resolve it. Id. at 155. To resolve the problem, Radzanower and its progeny inform us, we must consider whether, like the preexisting narrow statutes at issue in Lujan-Armendariz and other cases, the earlier and narrower statutory provision here—ADAA § 7344(b)—must be construed as a minor exception to the very general language of the later statutory provision—IMMAct § 602(c). We determine that it must, for several reasons.
[12] Second, nothing in the text of the IMMAct indicates a “clear intention,” Radzanower, 426 U.S. at 153, to apply the broad language of
Third, when
Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a) of this section, notwithstanding (1) that any such alien entered the United States prior to June 27, 1952, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a) of this section, occurred prior to June 27, 1952.
At the time of its enactment,
[13] Fourth, the legislative history of
[14] Fifth and finally, when other provisions of the IMMAct are taken into account, it becomes apparent that Congress did not intend to repeal
The peculiar outcome we must strive to avoid would result from the interaction of
Moreover, if
[15] This division would make no sense. Instead, in light of
The dissent argues that the BIA read
First, the BIA stated in Lettman that its reading of
[16] Second, even taking the BIA‘s decision “on its own terms” as the dissent suggests we should and presuming that the BIA regarded
Posadas v. National City Bank, 296 U.S. 497 (1936) explains:
The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication — (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act[.]
Id. at 503 (emphasis added). As we have shown extensively, IMMAct was by no means clearly intended to repeal the ADAA generally, and the dissent fails to identify any “clear and manifest” congressional intent to do so. Instead, the dissent is forced to “infer[ ]” a repeal, see Dissent at 20520, contrary to the Supreme Court‘s directive not to “infer a statutory repeal unless the later statute expressly contradicts the original act or unless such a construction is absolutely necessary . . . in order that the words of the later statute shall have any meaning at all.” Nat‘l Ass‘n of Home Builders, 551 U.S. at 662 (internal quotation marks and alterations omitted). Boardmember Rosenberg, dissenting from the majority decision in Matter of Lettman, showed at length why the IMMAct did not replace the aggravated felony provisions of the ADAA, but only redesignated them. 22 I. & N. Dec. at 389-93, 396-97 (Rosenberg, dissenting).16 Moreover, Matter of Lettman does
Third, Chevron does not apply here in the first place. As explained above, because the presumptions against retroactivity and against implied repeals remove any potential ambiguity that an agency might otherwise resolve, Chevron deference has no role to play. See St. Cyr, 533 U.S. at 320 n.45; Lujan-Armendariz, 222 F.3d at 749.
[17] For all these reasons, we conclude that
ii. IMMAct § 602(d)
The “effective date” provision in the following subsection,
iii. Summary
[18] In sum, application of the implied repeal doctrine demands that we interpret
4. Hovsepian and Yacoubian
[19] We previously considered
[20] Because of the similarity between the ADAA tempo
The IMMAct continued the ADAA‘s distinct structural treatment of the aggravated felony and firearm categories of deportable offenses. Like the ADAA, the IMMAct amended the “aggravated felony” definition in
These two related structural distinctions between the aggravated felony and firearms categories of offenses are critical here. Combined, they explain why the implied repeal question in Hovsepian and Yacoubian was fundamentally different from the one we decide today:
First, because there is no IMMAct provision applicable to firearms offenses that is parallel to
Second,
In contrast,
To summarize: For pre-ADAA aggravated felonies, our implied repeal analysis is informed by considerations quite different from those relevant to pre-ADAA firearms offenses. We hold that unlike
B. IIRIRA
[21] To complete the saga of
[22] We cannot agree. As we have clarified, “it is settled law that the . . . definitional statute,
[23] There has been no suggestion that any provision in IIRIRA other than
IV. CONCLUSION
[24] Ledezma-Galicia is not removable by reason of being an aggravated felon, because
No. 03-73648: PETITION FOR REVIEW GRANTED; REMANDED.
BYBEE, Circuit Judge, dissenting:
There is no polite way to say this: The statutory scheme we are required to parse in this case is a mess. It is a model of ambiguity and misdirection. That fact, of course, does not give us license to impose our own reading on the statute, but means that we must accept an agency‘s construction of the statute so long as it is reasonable. Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). The majority declines to accept the BIA‘s reading and imposes its own interpretation based on what it calls “the plain language of the statutеs.” Maj. Op. at 20482. Whether the majority has improved on the BIA‘s analysis is debatable—although for the reasons I explain, I quite doubt it—but we do not have to be confident of our analysis, we only have to be confident that the BIA‘s is reasonable. And of that, I am 100 percent confident. Indeed, so twisted and complex are the provisions at issue here that—short of spitting in a bucket—the BIA could have concluded almost anything in this case and been reasonable. There is nothing “plain” about these statutes. If Chevron means anything, this is a classic case for deferring to the agency.
In September 1988, an Oregon state court convicted Ramon Ledezma-Galicia of sodomy for sexually molesting a minor. The crime for which he was convicted constitutes “sexual abuse of a minor,” which is an aggravated felony under current law, see
The majority disagrees. Arguing that “the presumptions against retroactivity and against implied repeals remove any potential ambiguity,” the majority finds that ”Chevron deference has no role to play.” Maj. Op. at 20496 (citing INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001)). As a result, the majority concludes, “we must decide it ourselves.” Id. at 20481. Applying de novo review, it then holds that Ledezma cannot be removed because the law making aliens convicted of aggravated felonies deportable does not apply to aliens convicted of aggravated felonies prior to November 18, 1988. Id. at 20471. The majority admits that this creates “a ‘small puncture in a broad shield‘” because aliens are depоrtable for any number of offenses committed prior to 1988. Id. at 20488 (citation omitted). According to the majority‘s decision, Congress intended to create this “minor exception[ ],” id., and as a result, aliens who sexually abuse minors will not be subject to deportation so long as they committed the crime before 1988.
In the process of discarding the BIA‘s considered decision, the majority not only takes issue with the agency, but it also creates a clear split with the Fourth and Eleventh Circuits, which recognized that the statutes are ambiguous and have held that the BIA‘s construction of the INA in Lettman is reasonable. Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000) (opinion per Goodwin, J.); Lewis v. INS, 194 F.3d 539 (4th Cir. 1999). Furthermore, the majority‘s decision flies in the teeth of our en banc decision in United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004). In Hovsepian we approved the same reasoning the BIA employed in this case as applied to a parallel section of the same act. Indeed, were the issue to
I respectfully dissent.
I
My objections to the majority‘s analysis begin with the familiar Chevron two-step. 467 U.S. at 842-43. First, the reviewing court must determine whether the statute is ambiguous: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. If, however, the statute is silent or ambiguous then the reviewing court “does not impose its own construction of the statute, but rather it decides ‘whether the agency‘s answer is based on a permissible construction of the statute.‘” Gonzales v. Dep‘t of Homeland Sec., 508 F.3d 1227, 1235 (9th Cir. 2007) (quoting Chevron, 467 U.S. at 843). The agency‘s interpretation is entitled to deference “unless that interpretation is contrary to the plain and sensible meaning of the statute.” Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). If a court concludes that an agency‘s decision “was based, at least in part, on ambiguity in the applicable statutes” then the court “must give deference to the agency‘s resolution of these ambiguities.” Gonzales, 508 F.3d at 1235.
The majority discards Chevron from the outset because “a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prоspective, [and] there is, for Chevron purposes, no ambiguity in such a statute to resolve.” St. Cyr, 533 U.S. at 320-21 n.45 (citing Landgraf v. USI Film Products, 511 U.S. 244, 264 (1994)); see Maj. Op. at 20480-81, 20496. The majority‘s reliance on the presumption against retroactivity is misplaced here, for two reasons. First, as I will discuss in the greater detail in the next sections, the BIA was quite clear in Lettman that it was not merely construing a retroactivity provision; its
Our reading comports with our understanding that the purpose of [§ 602 of the IMMAct] was to completely revise the deportation grounds. With this in mind, we find it difficult to believe that Congress intended to revise the deportation grounds, but still have the former Act ultimately determine deportability. In other words, it makes no sense to enact a whole new provision, yet keep the former version perpetually intact.
Id. at 372. BIA‘s view of the effect of the IMMAct on the comprehensive immigration scheme in the INA is plainly worthy of deference.
Second, the Court‘s retroactivity concerns in St. Cyr do not apply here. In St. Cyr, the Court invoked the Landgraf presumption against retroactivity because the government‘s argument for retroactive repeal of § 212 rights rested on structural arguments about IIRIRA, an effective date for IIRIRA, and a savings provision, none of which actually said anything specific about retroactivity. See St. Cyr, 533 U.S. at 317-18. By contrast, the Court pointed to a number of provisions in IIRIRA that “indicate[d] unambiguously its intention to apply specific provisions retroactively.” Id. at 318-19 & n.43. Exhibit 1 for the Court was
For these reasons, I would afford Chevron deference to the BIA‘s construction of the INA, as amended by these statutes. In any event, I do not think this case ultimately turns on whether we defer to the BIA‘s views, because the BIA‘s quite reasonable reading of the statutes is also the best reading of those statutes. I now turn to these complicated acts to put in context the BIA‘s construction.
II
A
Congress first created the category of crimes denominated “aggravated felonies” in the
The provision adding aggravated felony as a ground for deportation was immediately followed by an applicability clause:
(b) APPLICABILITY. — The amendments made by subsection (a) shall apply to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony.
B
In 1990, Congress passed the
(c) SAVINGS PROVISION — Notwithstanding the amendments made by this section, any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraphs (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that (1) any such alien entered the United States before the date of thе enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act.
The meaning of the first sentence is clear: any alien who could have been deported for certain acts before the passage of the IMMAct can still be deported.
The second sentence is a nightmare. The sentence begins “[e]xcept as otherwise specifically provided in such section and subsection (d).” It is unclear what “such section” means. One possibility (favoring Ledezma) is that “such section” refers to
Except as otherwise specifically provided by former INA § 241(a), INA § 241(a), as amended by IMMACT § 602(a), shall apply to all aliens described in section INA § 241(a) notwithstanding that (1) any such alien entered the United States before the date of the enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the IMMAct.
If the second interpretation prevailed, we would read
Except as otherwise specifically provided, INA § 241(a), as amended by IMMAct § 602(a), shall apply to all aliens described in section INA § 241(a) notwithstanding that (1) any such alien entered the United States before the date of the enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the IMMAct.
In my view, the latter reading is consistent with the overall theme of
C
In the
EFFECTIVE DATE OF DEFINITION. — Section 101(a)(43) (8 U.S.C. 1101(A)(43)) is amended by adding at the end the following new sentence: “Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph.”
Additionally, Congress provided that “[t]he amendments made by this section shall apply to actions taken on or after the date of the еnactment of this Act, regardless of when the conviction occurred.”
To summarize, in 1988, Congress made aliens convicted of an aggravated felony deportable.
III
A
In a lengthy decision in In re Lettman, the BIA reviewed these acts, the legislative history, prior judicial decisions, and the arguments on both sides. It then held that an alien is subject to deportation regardless of the date of conviction if his crime fits within the definition of aggravated felony. 22 I. & N. Dec. 365, 366 (BIA 1998) (en banc). The BIA concluded that the language of
The BIA began from the premise that
The Board then turned to the effect of
The Eleventh Circuit reviewed the BIA‘s decision in Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000), and agreed with its analysis. In an opinion by our own Judge Goodwin, the court held that “INA section 241(a)(2)(A)(iii) authorizes the deportation of aliens convicted of aggravated felonies at any time after entry.” Id. at 1369. As the court explained the problem:
Our decision . . . turns on whether, as the BIA held, the aggravated felony deportation ground applies “notwithstanding . . . that the facts . . . occurred before the date of this Act.”
IMMACT § 602(c) . The question depends largely on the application of “such section” in section 602(c). If “such section” refers to thе aggravated felony ground with the date restriction intact, as enacted by the ADAA in 1988 (prior to IMMACT), then the language stating “[e]xcept as otherwise specifically provided in such section” would remove the aggravated felony ground from the ambit of [§ 602(c)]. On the other hand, as the Government argues, if “such section” refers to the aggravated felony ground without the date restriction, as enacted by IMMACT (which did not expressly reenact the date restriction), then[§ 602(c)] survives to effect deportability, unaffected by [ADAA § 7344(b)].
Id. at 1371 (parentheticals omitted). The court concluded that the “BIA reasonably interpreted ‘such section’ to refer to the aggravated felony ground without the ADAA date restriction.” Id.
The Fourth Circuit arrived at the same conclusion in Lewis v. INS, 194 F.3d 539 (4th Cir. 1999). The court acknowledged the ambiguity of the statute, stating it “cannot conclude that congressional intent is clear and unequivocal here.” Id. at 545. The court concluded that “the Board‘s interpretation is certainly reasonable—indeed, we would likely reach the same conclusion.” Id.2
B
The majority opinion has not improved on the BIA‘s reasoning. Indeed, it falls well short of demonstrating that the BIA‘s construction of a badly written set of statutes is not only a permissible one, but the best one.
1
The majority argues that because
There are essentially two problems with the majority‘s theory. First, the majority is wrong because
Second, if the majority were correct, and
In sum, the BIA reasonably concluded
2
The majority makes at least two errors in its statutory interpretation analysis. First, even if this case involved an implied repeal—which, as explained below, I believe it does not—the BIA did not err in concluding that IMMAct repealed the retroactivity provision in
With this in mind, we find it difficult to believe that Congress intended to revise the deportation grounds, but still have the former Act ultimately determine deportability. In other words, it makes no sense to enact a whole new provision, yet keep the former version perpetually intact.
Id. at 372.
A 1991 House Committee report supports the BIA‘s interpretation, describing the statute in the following terms:
The [IMMAct] substantially revised the immigration law of the United States. In fact, the Act constituted the most comprehensive re-write of immigration law in 66 years. Every major area of the law, with the one exception of refugee matters, was amended.
H. Rep. No. 102-383, at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 1372, 1372. Indeed, even today‘s majority notes that “Congress overhauled deportation law by passing the IMMAct.” Maj. Op. at 20475. The BIA can hardly be faulted for coming to the same conclusion.
A repeal through a wholesale revision of the section is not the sort of implied repeal that is discouraged by our presumption. A statutory repeal may be properly inferred “where the latter Act covers the whole subject of the earlier one and is clearly intended as a substitute.” Nat‘l Ass‘n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 663 (2007) (internal quotation marks omitted) (quoting Branch v. Smith, 538 U.S. 254, 273 (2003)).4 The BIA‘s construction of
The majority takes consolation in the fact that its decision today places only “a small puncture in a broad shield.” Maj. Op. at 20488 (quotation marks and citation omitted). I dis-
Second, instead of applying a statutory canon and explaining why it resolves any ambiguity, the mаjority skips straight to analyzing whether or not Congress impliedly repealed
The majority acts as if Congress has simply redesignated the amendments made by
I would defer to the BIA‘s reasonable interpretation of these ambiguous statutes.
3
Finally, the majority claims that interpreting
Moreover, in attempting to cure the perceived oddities in the BIA‘s construction, the majority‘s interpretation of the statute produces equally odd results. The majority recognizes (as it must) that an alien convicted of a firearm offense prior to 1988 is deportable, see Hovsepian v. United States, 359 F.3d 1144, 1156-57 (9th Cir. 2004) (en banc); Maj. Op. at 20498 (recognizing that “[d]espite [the ADAA‘s] temporal limitation, we have twice held that
IV
There is a final, compelling reason why the majority is in error. The BIA‘s reading of the interaction between the ADAA and the IMMAct explained above is not only consistent with, but is virtually compelled by, our en banc decision in Hovsepian v. United States, 359 F.3d 1144 (9th Cir. 2004). In Hovsepian, we held that
APPLICABILITY. — The amendment made by subsection (a) shall apply to any alien convicted, on or after the date of the enactment of this Act, of possessing any firearm or destructive device referred to in such subsection.
APPLICABILITY. — The amendments made by subsection (a) shall apply to any alien who has been
convicted, on or after the date of the enactment of this Act, of an aggravated felony.
I cannot see how we can possibly reconcile Hovsepian with the majority‘s decision. The majority attempts to distinguish the two provisions on the grounds that
The majority is correct about this structural distinction, but I cannot comprehend why this difference has any bearing on the post-IMMAct survival of the retroactivity provisions of the ADAA. The Eleventh Circuit considered and expressly rejected precisely this attempt to distinguish the applicability provisions for firearms offenses and aggravated felonies. In Lettman, the court explained that it had already addressed the effect of
The Eleventh Circuit‘s analysis is consistent with Hovsepian and entirely persuasive. Perhaps this distinction between the statutes might be relevant if the IMMAct amended the definition of aggravated felony in a way that encompassed Ledezma for the first time. But it was not the 1990 IMMAct that defined “aggravated felony” to include sexual abuse of a minor, but the 1996 IIRIRA, and IIRIRA could not have been clearer that its amendments applied “regardless of when the conviction occurred.”
The only question is whether IMMAct makes the general aggravated felony deportability provision retroactive and, in doing so, supersedes the ADAA applicability provision. The BIA looked carefully at that difficult question and concluded that it did. This is a reasonable conclusion worthy of deference.
* * * * *
I would deny Ledezma‘s petition for review. I respectfully dissent.
Notes
We note that some of the electronic versions of the ADAA show § 7344(b) as containing the bracketed phrase “8 U.S.C. § 1251 note” in the middle of subsection (b)‘s text, or at the very beginning. See Pub. L. No. 100-690, 102 Stat. 4181, 4470-71 (Westlaw); Pub. L. No. 100-690, 102 Stat. 4181, 4470-71 (Lexis). Both those transcriptions are erroneous. It is quite clear, if one looks at the Public Law as published in the Statutes at Large, that the reference to “8 U.S.C. § 1251 note” appears only in the margin of ADAA § 7344(b), not in the text. Pub. L. Nо. 100-690, 102 Stat. 4471. Margin notes are added by the codifiers, not by Congress. See Questions and Answers, 78 LAW LIBR. J. at 592. The decision to move the codifiers’ marginal note into the text of § 7344(b) was apparently made by the electronic databases’ transcribers in producing their unofficial online versions of the U.S. Code. Their erroneous decision to reproduce the marginal note as part of the statute itself is without any legal significance.
The Court of Appeals for the Second Circuit is the only other court to address whether ADAA § 7344(b) bars retroactive application of the aggravated felony ground of removal. In Bell v. Reno, 218 F.3d 86 (2d Cir. 2000), that court also concluded that IMMAct § 602 overrode ADAA § 7344(b), but did so based on IMMAct § 602(d), rather than § 602(c), with reasoning distinct from that of both the BIA and the analysis we develop today. In Bell, the Second Circuit did not accord Chevron deference to the BIA‘s decision in Lettman, because it concluded that the BIA failed adequately to apply the presumption against statutory retroactivity. Id. at 93-94. We discuss Bell later in this opinion.
(a) IN GENERAL.—Paragraph (43) of
(1) by aligning its left margin with the left margin of paragraph (42),
(2) by inserting “any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act), including” after “murder,”
(3) by inserting after “such title,” the following: “any offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments), or any crime of violence (as defined in section 16 of title 18, United States Code, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years,”
(4) by striking “committed within the United States,”
(5) by adding at the end the following: “Such term applies to offenses dеscribed in the previous sentence whether in violation of Federal or State law,” and
(6) by inserting before the period of the sentence added by paragraph (5) the following: “and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years.”
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall apply to offenses committed on or after the date of the enactment of this Act, except that the amendments made by paragraphs (2) and (5) of subsection (a) shall be effective as if included in the enactment of
Any alien convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part, or accessory, which is a firearm or destructive device (as defined in section 921(a) of title 18) is deportable.