Matter of Rocco OPPEDISANO, Respondent
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided October 25, 2013
26 I&N Dec. 202 (BIA 2013)
Interim Decision #3793
FOR RESPONDENT: Shari L. Astalos, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Timothy Maguire, Senior Attorney
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board Members.
PAULEY, Board Member:
In a decision dated March 18, 2013, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Italy who was admitted to the United States as a lawful permanent resident on September 9, 1973. He was convicted on January 6, 2012, in the United States District Court for the Eastern District of New York, of unlawful possession of ammunition by a convicted felon in violation of
The Immigration Judge determined that the respondent‘s conviction for unlawful possession of ammunition in violation of
II. ANALYSIS
Under section 101(a)(43)(E)(ii) of the Act, the definition of an “aggravated felony” includes an offense described in “section 922(g)(1) . . . of title 18, United States Code (relating to firearms offenses).” The respondent contends that the parenthetical “relating to firearms offenses” in section 101(a)(43)(E)(ii) is a limiting clause, which expressly restricts the offenses included to those involving firearms. He therefore asserts that his possession of ammunition offense is not an aggravated felony under the Act.
In Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999), we examined the parenthetical “relating to alien smuggling” in the aggravated felony definition at section 101(a)(43)(N) of the Act. Following a review of the plain statutory language, the procedural history of the provision, and the relevant case law, we concluded that the parenthetical was descriptive, rather than limiting. Id. at 489. Noting that numerous other aggravated felony provisions in section 101(a)(43) referenced statutes outside the Act, we stated that their parentheticals, including the one in section 101(a)(43)(E)(ii), provided a “shorthand description of the referenced criminal offenses” that gave the reader “guidance as to the nature and
The respondent acknowledges our decision in Matter of Ruiz-Romero but argues that it is not dispositive because our analysis in that case focused on section 101(a)(43)(N) of the Act. He contends that an analysis of section 101(a)(43)(E)(ii) is required. We agree and will examine the “relating to firearms offenses” parenthetical in that section.
When interpreting a statute, we should be guided by common sense, taking into consideration Congress’ intention to enact “a symmetrical and coherent regulatory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000); see also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771, 775 (BIA 2012). We must therefore read the parenthetical to section 101(a)(43)(E)(ii) in context and with a view to its place in the overall structure of the statute. See Gourche v. Holder, 663 F.3d 882, 885 (7th Cir. 2011) (finding that the language and structure of section 237(a)(3)(B)(iii) of the Act showed Congress’ intent that the statute‘s parenthetical would “provide a convenient shorthand description” of the removal ground); United States v. Salas-Mendoza, 237 F.3d 1246, 1247 (10th Cir. 2001) (considering the context of the parenthetical in section 101(a)(43)(N) of the Act in finding that it is descriptive rather than limiting); United States v. Monjaras-Castaneda, 190 F.3d 326, 330 (5th Cir. 1999) (same).
We note first that courts interpreting the nature of “relating to” parentheticals have found that they are “widely understood to have a descriptive import.” United States v. Harrell, 637 F.3d 1008, 1012 (9th Cir. 2011) (and cases cited therein); see also Monjaras-Castaneda, 190 F.3d at 330. “The phrase ‘relating to’ does not itself imply exclusivity; rather, it plainly reflects a descriptive character.” Harrell, 637 F.3d at 1010–11. The Board and courts of appeals “have consistently ruled that the phrase ‘relating to’ has an expansive meaning.” Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010).
By contrast, when Congress intends for a parenthetical to have a limiting effect, it generally uses language that is clear and distinct, with words such as “except,” “if,” and “but not including.” See Gourche, 663 F.3d at 885–86 (comparing such “restrictive or conditional language” to the “descriptive shorthand” of a “relating to” parenthetical); see also Harrell, 637 F.3d at 1011 (“Congress’ use of clear and distinct language when it
For example, in considering whether the parentheticals in section 101(a)(43) of the Act are descriptive or restrictive, a number of circuit courts have noted that Congress clearly demonstrated its ability to exclude some specific offenses from the aggravated felony definition with the use of restrictive or limiting language in sections 101(a)(43)(F) and (J). Patel v. Ashcroft, 294 F.3d 465, 472 (3d Cir. 2002); Galindo-Gallegos, 244 F.3d at 734; Salas-Mendoza, 237 F.3d at 1248; Monjaras-Castaneda, 190 F.3d at 330. In each of those cases, the courts concluded that the “relating to alien smuggling” parenthetical in section 101(a)(43)(N) was clearly descriptive and not restrictive, as did every other circuit court that has considered that issue. See also Guo Xing Song v. U.S. Att‘y Gen., 516 F. App‘x 894 (11th Cir. 2013); Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. 2002); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000).
This conclusion was based in large part on the courts’ examination of the context in which the parenthetical appeared in the statute. As we noted in Matter of Ruiz-Romero, 22 I&N Dec. at 489, the aggravated felony provisions include numerous references to statutes that are not in the Act. Several courts agreed that “[w]ithout any descriptions of what the section numbers refer to, determining whether an offense qualifies as an aggravated felony would be a laborious process.” Salas-Mendoza, 237 F.3d at 1247; see also Galindo-Gallegos, 244 F.3d at 734 (finding that the “function of the descriptive language appears to be to make reading the statute easier”); Monjaras-Castaneda, 190 F.3d at 330. This led them to conclude that the “relating to” parentheticals in section 101(a)(43) of the Act, including the one in section 101(a)(43)(E)(ii), are descriptive and are “intended only as a general illustration of the referenced criminal statutes.” Patel, 294 F.3d at 471; see also Gourche, 663 F.3d at 885 (noting that “[t]hese descriptive parentheticals are different from other subparagraphs of the aggravated felony definition that use parentheticals explicitly to limit those offenses that may constitute an aggravated felony”).
The aggravated felony defined in section 101(a)(43)(E)(ii) of the Act specifically references
Finally, we point out that the possession of ammunition is integrally associated with firearms and their use. See
We recognize that the United States Court of Appeals for the Second Circuit, in whose jurisdiction this case arises, declined to follow the Fifth Circuit‘s reasoning in Monjaras-Castaneda for its conclusion that the parenthetical language in section 101(a)(43)(N) was descriptive rather than limiting. Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004). However, the Second Circuit was evaluating whether a different parenthetical in section 101(a)(43)(M)(ii) of the Act, “relating to tax evasion,” included the crime of “defeat” of a tax. Furthermore, the court did not find it necessary to determine whether the parenthetical had a descriptive or restrictive meaning, finding instead that “whatever differences there may be between them, ‘defeat [of a] tax’ is at least ‘relat[ed] to tax evasion.’” Id. at 151. Because the Second Circuit‘s conclusion is not inconsistent with ours, we do not consider its decision in Evangelista to be contrary authority.
Having examined the “relating to firearms offenses” parenthetical in section 101(a)(43)(E)(ii) of the Act, we conclude that Congress intended it only to be descriptive of the types of offenses that are referenced in
The respondent asserts that the Immigration Judge erred by failing to apply the rule of lenity in interpreting section 101(a)(43)(E). This rule, which provides that ambiguities in statutes must be construed in an alien‘s favor, is a doctrine of “last resort” to be employed only after traditional means of statutory interpretation have failed to resolve any ambiguities.
We have interpreted the parenthetical to section 101(a)(43)(E)(ii) as descriptive because it clearly encompasses the criminal statutory provisions that it references, which involve both firearms and ammunition offenses. Our conclusion is informed by the principles of statutory interpretation and is supported by significant case law. Because we find that the meaning of the phrase “relating to” can be sufficiently discerned to resolve this case, we conclude that the rule of lenity does not apply. See Kawashima v. Holder, 132 S. Ct. 1166, 1176 (2012); see also Evangelista, 359 F.3d at 151 (finding there was no ambiguity in the parenthetical “relating to tax evasion” in section 101(a)(43)(M)(ii) of the Act); Monjaras-Castaneda, 190 F.3d at 330 (finding use of the rule of lenity to be unwarranted because the meaning of section 101(a)(43)(N) was plain). Accordingly, the respondent‘s appeal will be dismissed.2
ORDER: The appeal is dismissed.
Notes
According to
who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
. . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Pursuant to