In re Anderson David Justin SMALL, Respondent
File A22 525 186 - Oakdale
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided June 4, 2002
23 I&N Dec. 448 (BIA 2002)
Interim Decision #3476
FOR RESPONDENT: Leo Jerome Lahey, Esquire, Lafayette, Louisiana
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Yon Alberdi, Assistant District Counsel
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, COLE, GUENDELSBERGER, MILLER, BRENNAN, OSUNA, OHLSON, HESS, and PAULEY, Board Members. Concurring Opinion: GRANT, Board Member. Dissenting Opinions: FILPPU, Board Member, joined by MOSCATO, Board Member; ROSENBERG, Board Member, joined by ESPENOZA, Board Member.
PAULEY, Board Member:
On September 12, 2001, an Immigration Judge terminated proceedings based on his finding that the Immigration and Naturalization Service failed to sustain the charge of removability against the respondent under
The respondent, a 43-year-old native and citizen of Trinidad and Tobago, was admitted to the United States in 1967 as a nonimmigrant attendant, servant, or personal employee of a representative, officer, or employee of an international organization. On April 24, 1979, he adjusted his status to that оf a lawful permanent resident of the United States. He was convicted on August 22, 2000, in the County Court of the State of New York, County of Orange, of sexual abuse in the second degree, in violation of
On appeal, the Service argues that the Immigration Judge erred in finding that the respondent‘s conviction was not for an aggravated felony as defined in
This is not the first time we have addressed the issue whether the definition of an aggravated felony set forth in
At the time we initially considered Crammond, the question it presented was essentially one of first impression, as only one federal circuit court had decided the issue. In a decision handed down shortly before our opinion was published, the United States Court of Appeals for the Seventh Circuit issued a ruling that was at variance with the result reached in Crammond. Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001).
Since our initial decision in Matter of Crammond, the legal landscape relating to this question has significantly changed. After considering the issue anew in light of our opinion, the Seventh Circuit declined to modify its position and denied a petition for rehearing with a further opinion. Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001). In addition, two other circuits, the Sixth and the Eleventh, employed similar reasoning in aligning themselves with the Seventh Circuit. United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir. 2001); United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir.), cert. denied, 122 S. Ct. 317 (2001). Most recently, the Ninth Circuit, citing United States v. Marin-Navarette, supra, determined that “an offense classified by state law as a misdemeanor can be an ‘aggravated felony’ . . . if the offense otherwise cоnforms to the federal definition [of that term] found in
In light of these developments, we have reconsidered the issue and conclude that the prevailing appellate court view should be adopted for the reasons set forth in the above-cited opinions of the Sixth, Seventh, and Eleventh Circuits. We consider it appropriate at this juncture to accede to the weight of appellate court authority in the interest of uniform application of the immigration laws.
Accordingly, the Service‘s appeal will be sustained and the record will be remanded to the Immigration Judge.
ORDER: The appeal of the Immigration and Naturalization Service is sustained.
FURTHER ORDER: The decision of the Immigration Judge is vacated and the record is remanded for further proceedings consistent with the foregoing opinion.
In re Anderson David Justin SMALL, Respondent
CONCURRING OPINION: Edward R. Grant, Board Member
I concur fully in the result and reasoning of the majority opinion. I further incorporate by reference, in response to any suggestion that the Board has failed to engage in an independent analysis of the issue at stake, my separate opinion in Matter of Crammond, 23 I&N Dec. 9 (BIA), vacated, 23 I&N Dec. 179 (BIA 2001).
Respectfully submitted.
In re Anderson David Justin SMALL, Respondent
DISSENTING OPINION: Lauri Steven Filppu, Board Member, in which Anthony C. Moscato, Board Member, joined
I respectfully dissent.
There is substantial room for disagreement on the question whether a misdemeanor may constitute an “aggravated felony” under
The majority accedes to circuit court precedent because of “the interest of uniform application of the immigration laws.” Matter of Small, 23 I&N Dec. 448, 450 (BIA 2002). I fully respect that view in the present context, especially because the term “aggravated felony” appeаrs in both the civil and criminal1 provisions of the Act, arguably giving both this Board and the federal criminal courts independent grounds for resolving statutory ambiguities and leaving uncertain the question of which interpretation is owed deference. Compare INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (explaining that courts owe deference to the Board‘s construction of ambiguous language in the statute administered by the Board), with Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) (explaining that deference does not extend to an agency‘s interpretation of a judicially enforceable portion of a statute).
Nonetheless, we face a question that is fundamentally an issue of civil immigration law, involving a term defined in the Immigration and Nationality Act and used extensively in its civil provisions, even if there is a criminal law overlap. Further, the issue does not involve a provision borrowed and cross-referenced from federal criminal law, where I believe we clearly owe deference to judicial rulings. See Matter of Yanez, 23 I&N Dec. 390 (BIA 2002) (deferring to circuit court precedent on the meaning of
The record reflects that the respondent committed a reprehensible crime. The state, however, convicted him only of a misdemeanor. For the reasons set forth at length in my concurring opinion in Matter of Crammond, supra,
In re Anderson David Justin SMALL, Respondent
DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in which Cecelia M. Espenoza, Board Member, joined
Despite an “array of authority,” I am convinced that the construction of the aggravated felony provision relied on by the majority to arrive at the result reached in this case is еrroneous. See United States v. Ibarra-Galindo, 206 F.3d 1337, 1341 (9th Cir. 2000) (Canby, J., dissenting) (recognizing it to be a “daunting exercise to conclude that the majority has reached an incorrect result when six other circuits agree with it“), cert. denied, 531 U.S. 1102 (2001). To coin a phrase, “[t]his case is a perfect example why.” Id.
The respondent was convicted of a state misdemeanor. See
Therefore, the respondent has been convicted of an aggravated felony, as charged, only if he has been convicted of “murder, rape, or sexual abuse of a minor” under
I continue to agree with the interpretation we reached in Matter of Crammond, 23 I&N Dec. 9 (BIA), vacated, 23 I&N Dec. 179 (BIA 2001). There, we recognized that in the absence of any qualifying language, the statute provided that a conviction for “murder, rape, or sexual abuse of a
First, the words “felony” and “aggravated” have a uniform and unequivocal meaning, both in common usage and under federal law. In INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987), the Supreme Court recognized that “[w]ith regard to this very statutory scheme, we have considered ourselves bound to ‘“assume ‘that the legislative purpose is expressed by the ordinary meaning of the words used.‘“’ INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982), in turn quoting Richards v. United States, 369 U.S. 1, 9 (1962))” (citations omitted).
As I noted in my concurring opinion in Matter of Crammond, supra, at 23 (Rosenberg, concurring), the commonly understood meaning of the word “felony” refers to a degree of crime that is especially serious and that does not include misdemeanors. See United States v. Graham, 169 F.3d 787, 792-93 (3d Cir.), cert. denied, 528 U.S. 845 (1999) (acknowledging a uniformly accepted federal standard for differentiating between felonies and misdemeanors); see also Pacheco v. INS, 225 F.3d 148, 156 (2d Cir. 2000) (Straub, J., dissenting) (“[T]here can be little argument that the word ‘felony’ is commonly understood—and statutorily defined—to include crimes punishable by prison terms of greater than one year.“), cert. denied, 533 U.S. 904 (2001); Matter of Crammond, supra, at 18 (Filppu, concurring) (“The plain or natural reading of the word ‘felony’ would not include misdemeanors.“). The term “felony” also is uniformly distinguished in the United States Sentencing Guidelines Manual § 2L1.2, cmt. n.1; in Black‘s Law Dictionary 633 (7th ed. 1999); and in Webster‘s Third New Int‘l Dictionary 836 (1993). In addition, the word “aggravated” has a commonly accepted meaning, typically modifying another word to describe a situation that is worse, enhanced, or more severe in some way. See, e.g., Black‘s Law Dictionary, supra, at 65 (defining the word “aggravated,” when used to describe a crime, as “made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime“); Webster‘s Third New Int‘l Dictionary, supra, аt 41 (defining the verb to “aggravate” to mean “to make worse, more serious, or more severe“). Moreover, “it is quite clear that ‘aggravated felony’ defines a subset of the broader category ‘felony.‘” Pacheco v. INS, supra, at 157 (Straub, J., dissenting) (“Common sense and standard English grammar dictate that when an adjective—such as ‘aggravated‘—modifies a noun—such as ‘felony‘—the combination of the terms delineates a subset of the noun.“).
It is well settled that “[w]here Congress uses terms that have accumulated settled meaning . . . a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981); see also United States v. United States Gypsum Co., 438 U.S. 422, 437 (1978) (“Congress will be presumed to have legislated against the background of our traditional legal concepts . . . .“). The majority opinion offers no justification for concluding that, since оur decision in Matter of Crammond, supra, the settled meaning of the terms has changed or a different meaning of the terms is warranted.
Second, the basis on which the majority rests its decision, coupled with our finding in Matter of Crammond, supra, at 11, leaves little doubt that the language used in
If the term “aggravated felony” is not to be interpreted literally, based on the plain and commonly understood meaning of the two words that make up the term, then the interpretation of such an apparently ambiguous term is subject to the controlling principles of statutory construction. The majority opinion neither mentions, nor observes, the foremost of the principles of construction applicable to immigration cases: “[W]e will not assume that Congress meant to trench on [the immigrant‘s] freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (emphasis added) (recognizing that “dеportation is a drastic measure and at times the equivalent of banishment or exile” (citing Delgadillo v. Carmichael, 332 U.S. 388 (1947))).
The Supreme Court‘s decision in INS v. St. Cyr, 533 U.S. 289 (2001), reflects that this rule maintains its currency today and applies even to interpretations of the plain language of the statute under the first prong of the test prescribed in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). See INS v. St. Cyr, supra, at 320 (recognizing “‘the longstanding principle of construing any lingering ambiguities in deportatiоn statutes in favor of the alien‘” (quoting INS v. Cardoza-Fonseca, supra, at 449)). Thus, we are obliged to opt for the more narrow reading, i.e., the one that will result in less harsh removal consequences. But the majority ignores this rule and does not even appear to consider it in reaching its conclusion that a misdemeanor under state law
The majority invokes the decisions of the United States Courts of Appeals for the Sixth, Seventh, and Eleventh Circuits—none of which controls the result in the respondent‘s case—to buttress the result it reaches. It reiterates the holding of the Seventh Circuit, which had already been issued at the time we decided Matter of Crammond, supra, and notes that two other circuits have reached similar interpretations. It cites to thе decision of the Ninth Circuit, which has not addressed this particular issue at all, and speculates that a state law misdemeanor might qualify as an aggravated felony in that jurisdiction. United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir. 2002) (stating that “an offense classified by state law as a misdemeanor can be an ‘aggravated felony’ . . . if the offense otherwise conforms to the federal definition of ‘aggravated felony‘“) (emphasis added)); Matter of Small, supra, at 450; see also Wireko v. Reno, 211 F.3d 833, 836 (4th Cir. 2000) (distinguishing
The existing circuit court rulings that address
Similarly, the reasoning of the Eleventh Circuit wаs that “[b]y adding sexual abuse of a minor to the definition of ‘aggravated felony’ without any reference to a term of imprisonment, Congress broadened the coverage of the ‘aggravated felony’ classification.” United States v. Marin-Navarette, 244 F.3d 1284, 1286 (11th Cir.), cert. denied, 122 S. Ct. 317 (2001). The Seventh Circuit noted that “[t]here is no explicit provision . . . directing that the term ‘aggravated felony’ is limited only to felony crimes. We therefore are constrained to conclude that Congress, since it did not specifically articulate that aggravated felonies cannot be misdemeanors, intended to have the term aggravated felony apply to the broad range of crimes . . . .” Guerrero-Perez v. INS, supra, at 737 (citation omitted); see also United States v. Gonzales-Vela, 276 F.3d 763, 766-68 (6th Cir. 2001).
However, there is no basis for reading “including a misdemeanor” into the aggravated felony offenses defined in
As the Third Circuit has noted, “An intent to broaden the coverage of the aggravated felony classification . . . is not necessarily an intent to include misdemeanors in that category.” United States v. Graham, 169 F.3d at 792. Furthermore, we have only recently found it inapprоpriate to read into a statute additional provisions that Congress did not expressly articulate. See Matter of Salazar, 23 I&N Dec. 223, 227 (BIA 2002) (ruling that “under the plain language of
I cannot agree that the appropriate exercise of the Board‘s authority in this case is to take a poll of circuit court decisions and reach a result based on one, two, or even several circuit court decisions. The Board has been recognized as having unique expertise in interpreting the complexities and substantive concerns attendant to the implementation of the immigration laws, and the meaning of the provision articulated by Congress in
Our responsibility to construe the immigration law requires deliberation, analysis, and time to grapple with the legal issues that are posed in the context of factual circumstances presented in individual appeals. It is not merely a matter of tallying circuit law interpretations. And, admittеdly, such deliberation takes longer than simply pronouncing a nationwide rule based on the most restrictive interpretation of the statutory language.
In my view, the majority has opted for a seemingly uniform result that completely skips over the critical legal issue relating to the scope of aggravated felony offenses. Even putting our interpretive responsibility