Velazquez-Herrera v. Gonzales

466 F.3d 781

9th Cir.

2006

Check Treatment

Docket

Victor Ramon VELAZQUEZ-HERRERA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-72417

United States Court of Appeals, Ninth Circuit

Filed Oct. 19, 2006

Argued and Submitted July 28, 2006.

466 F.3d 781

penalties imposed by the [Commission] shall be referred to the Attorney General for recovery in a federal district court action.”

Id. at 771 (citing 7 U.S.C. § 9a). We rejected Lawrence‘s claim, holding that referral to the Justice Department was not intended to be the Commission‘s “exclusive remedy for violation of its orders to pay fines.” . Despite OFAC‘s multiple citations to it, is inapposite. The alternative remedy taken by the Commission, suspension of Lawrence‘s registration, was explicitly articulated in the same statute, whereas nothing in the Iraqi Sanctions regulations mentions administrative collection. Furthermore, as we recognized in , suspension of the license and referral to the Justice Department were not mutually exclusive remedies. See . The court was not required to reach the question of whether the agency could collect the penalty using means other than Justice Department referral because suspension of his registration was a different punishment altogether.

Rather than adopt OFAC‘s troublesome “rule of the silent disjunctive,” we hold that the plain language of the regulation authorizes no other methods for the collection of unpaid penalties. Because the regulation is clear, no deference is owed to OFAC‘s questionable interpretation. See

Thomas Jefferson Univ., 512 U.S. at 512, . If OFAC wishes to collect the $10,000 penalty from Sacks, it may do so by referring the matter to the Department of Justice for the filing of a civil suit in federal district court as its own regulation mandates.

VI. CONCLUSION

Sacks lacks standing to challenge the Medicine Restrictions, and his challenge to the Travel Ban fails because OFAC‘s power to promulgate it was authorized by the UNPA and not limited by any other statute. Therefore, the penalty against Sacks is valid. However, OFAC is precluded by its own then-operative regulations from utilizing the Ocwen Federal Bank or any private third-party entity to collect the $10,000 penalty from Sacks. Therefore, we AFFIRM the district court‘s order dismissing Sacks‘s complaint for declaratory relief. We also AFFIRM the district court‘s order enjoining OFAC from collecting the penalty from Sacks in a manner inconsistent with the then-effective version of 31 C.F.R. § 575.705.

AFFIRMED.

Matthew B. Weber, Weber & Marks, PLLC, Seattle, WA, for the petitioner.

Susan K. Houser and Leslie McKay (argued), Attorneys, Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent.

Before WALLACE, WARDLAW and FISHER, Circuit Judges.

PER CURIAM.

Victor Ramon Velazquez-Herrera petitions for review of the decision of the Board of Immigration Appeals (BIA) adopting and affirming the decision of the Immigration Judge (IJ), who determined that petitioner‘s conviction under Washington‘s fourth degree assault statute, Wash. Rev.Code § 9A.36.041, constituted a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i), thereby making petitioner removable and ineligible for discretionary relief. We grant the petition and remand to the BIA so that it may issue a precedential decision defining what constitutes a crime of child abuse for purposes of § 1227(a)(2)(E)(i) and apply that definition to petitioner‘s conviction in accordance with

Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

We have jurisdiction to review questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D).

The Immigration and Nationality Act does not define the term “child abuse” in 8 U.S.C. § 1227(a)(2)(E)(i) (“Any alien who at any time after admission is convicted of a crime of child abuse ... is deportable.“), nor has our case law defined the term as it is used in that statute. The BIA has described child abuse in another context as “[a]ny form of cruelty to a child‘s physical, moral or mental well-being,” relying on Black‘s Law Dictionary. See

In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999) (alteration in original). This language, however, was dictum not essential to the Board‘s holding, which concerned the definition of “sexual abuse of a minor.”

The IJ in the case before us found that “assault on a child is abuse, even if it is only a minor touching, as comprehended by the statute, because of the unfair advantage that an adult has over a child ....” The IJ never mentioned

Rodriguez-Rodriguez in his decision. The BIA, in a short, nonprecedential decision, “adopt[ed] and affirm[ed] the decision of the Immigration Judge.”

The

Rodriguez-Rodriguez definition of child abuse—“cruelty to a child‘s physical, moral or mental well-being“—and the definition the IJ and the BIA adopted in this case are not entirely consistent. The source consulted, Black‘s Law Dictionary 405 (8th ed.2004), defines “cruelty” as “[t]he intentional and malicious infliction of mental or physical suffering on a living creature.” Under Washington law, fourth degree assault includes conduct such as nonconsensual, offensive touching or spitting. See (en banc); . Therefore, Washington‘s fourth degree assault statute criminalizes conduct that falls short of the “cruelty” standard in .¹ In contrast, the IJ‘s definition of child abuse that the BIA approved in this case is broader and would categorically classify all assaults against children as child abuse. So long as the victim is a child, a conviction under Washington‘s fourth degree assault statute would therefore fall within this second definition.

We decline to reach the question whether either of these two definitions (or any other definition) is a permissible construction of 8 U.S.C. § 1227(a)(2)(E)(i) because neither the dictum in

Rodriguez-Rodriguez nor the definition the BIA adopted in this case constitutes “a statutory interpretation that carries the ‘force of law.‘” (discussing ); see generally (“We review de novo an agency‘s construction of a statute that it administers, subject to established principles of deference.“). Given that the Board has twice touched upon the issue of child abuse without authoritatively defining the term, and that the Board‘s two definitions are not consistent with each other, we think it prudent to allow the BIA in the first instance to settle upon a definition of child abuse in a precedential opinion.

Accordingly, we GRANT the petition for review and REMAND this case to the BIA to allow it an opportunity to issue a precedential opinion regarding the definition of “child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i). Cf.

INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). We also REMAND so that the BIA may determine whether the full range of conduct proscribed by Washington‘s fourth degree assault statute falls within the definition of “child abuse” and, if necessary, may apply that definition to the conviction record in this case. See , ; (“Under the modified categorical approach, the IJ [and the BIA] could look only to the record of conviction ..., not to the underlying facts.“).

PETITION GRANTED; REMANDED.

Notes

However, the definition of “child abuse” in the most recent Black‘s Law Dictionary does not use the term “cruelty.” See Black‘s Law Dictionary 10 (8th ed.2004) (defining “child abuse” as “[i]ntentional or neglectful physical or emotional harm inflicted on a child, including child molestation” or alternatively as “[a]n act or failure to act that presents an imminent risk of serious harm to a child“).