OPPEDISANO

Cite as 26 I&N Dec. 202 (BIA 2013) Interim Decision #3793

Matter of Rocco OPPEDISANO, Respondent

Decided October 25, 2013

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The offense of unlawful possession of ammunition by a convicted felon in violation of

18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).

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, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien

convicted of an aggravated felony under section 101(a)(43)(E)(ii) of the

Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2006). She therefore denied his

motion to terminate the proceedings and ordered him removed from the

United States. The respondent has appealed from that decision. The

Department of Homeland Security has filed a brief in opposition to the

appeal. The appeal will be dismissed.

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 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

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(2006).1 The respondent was sentenced to a term of probation for 5 years

and was fined $15,000.

The Immigration Judge determined that the respondent’s conviction for

unlawful possession of ammunition in violation of 18 U.S.C. § 922(g) is for

an aggravated felony under the Act. The respondent contends that the

Immigration Judge erred in reaching this conclusion without making an

independent analysis of section 101(a)(43)(E)(ii) of the Act and that she

deprived him of due process because she gave no rational explanation for

her decision. The respondent also argues that the Immigration Judge erred

in not applying the rule of lenity in interpreting the statute.

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

1

According to 18 U.S.C. § 922(g)(1), it is unlawful for any person

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 18 U.S.C. § 924(a)(2), the penalty for a conviction under § 922(g) is a fine,

imprisonment for not more than 10 years, or both.

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extent of the offenses referenced.” Id. We therefore concluded that rather

than limiting the “range of . . . offenses that may be regarded as an

aggravated felony,” the parentheticals “simply provide a generic point of

reference.” Id. at 490. By that general observation, we did not, however,

intend to obviate the need for a section-by-section analysis of the

parentheticals in section 101(a)(43) to determine whether the language in

each is descriptive or limiting.

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

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intends a limiting effect underscores the descriptive character of the

‘relating to’ parenthetical.”); United States v. Galindo-Gallegos, 244 F.3d

728, 734 (9th Cir. 2001) (stating that Congress has “used a perfectly clear

approach to articulate a limiting rather than descriptive parenthetical”).

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 18 U.S.C. § 922(g), the statute under which the

respondent was convicted, as well as several others that also criminalize

acts involving both firearms and ammunition. 18 U.S.C. §§ 922(j), (n),

924(b). If the parenthetical was meant to limit the aggravated felony

definition, Congress could have drafted it to state that it included “only

firearms offenses” or “firearms but not ammunition offenses.” See

Gourche, 663 F.3d at 886 (noting that the “absence of limiting language in

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the parenthetical description of [section 237(a)(3)(B)(iii) of the Act] shows

that Congress intended the parenthetical as a descriptive shorthand”); Patel,

294 F.3d at 472 (stating that “Congress used restrictive or limiting language

where it intended a parenthetical to limit or refine a given provision”). A

common sense reading of the Act therefore leads us to conclude that the

“relating to” parenthetical in section 101(a)(43)(E)(ii) simply provides a

“shorthand description” of the offenses included in the aggravated felony

definition, rather than confining it to firearms offenses to the exclusion of

offenses involving only ammunition. Matter of Ruiz-Romero, 22 I&N Dec.

at 489.

Finally, we point out that the possession of ammunition is integrally

associated with firearms and their use. See 18 U.S.C. § 921(a)(17)(A)

(2006) (stating that the “term ‘ammunition’ means ammunition or cartridge

cases, primers, bullets, or propellent powder designed for use in any

firearm”). This interconnection between ammunition and firearms supports

our conclusion that a crime involving ammunition is one “relating to

firearms offenses.” Cf. Patel, 294 F.3d at 473 (finding it “obvious” that the

“offense of ‘harboring an alien’ does relate to alien smuggling”);

Monjaras-Castaneda, 190 F.3d at 330.

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

§ 922(g), rather than a limitation that excludes ammunition offenses from

the aggravated felony definition.

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.

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Patel, 294 F.3d at 473 n.9 (stating that the “rule only applies if there is a

‘grievous ambiguity or uncertainty in the statute’” (quoting Muscarello

v. United States, 542 U.S.125, 138 (1998))); Ruiz-Almanzar v. Ridge, 485

F.3d 193, 198 (2d Cir. 2007); see also Matter of Rotimi, 24 I&N Dec. 567,

576 n.5 (BIA 2008).

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.

2

The respondent also argues that he was deprived of due process because of the manner

in which the Immigration Judge decided whether the parenthetical “relating to firearms

offenses” is descriptive or limiting in nature. We find this argument to be without merit.

The Immigration Judge gave the respondent ample opportunity, through counsel, to argue

the question, both orally and in writing. To the extent that the respondent contends that

the Immigration Judge did not decide, in the first instance, how to characterize the section

101(a)(43)(E)(ii) parenthetical, he has suffered no prejudice because, upon our de novo

review of this legal issue, we find that the parenthetical is descriptive.

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