SMALL

Cite as 23 I&N Dec. 448 (BIA 2002) Interim Decision #3476

In re Anderson David Justin SMALL, Respondent

File A22 525 186 - Oakdale

Decided June 4, 2002

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony under

section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A)

(2000).

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 section

237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(A)(iii) (2000). The Service timely appealed the Immigration

Judge’s decision. The appeal will be sustained and the record will be

remanded to the Immigration Judge.

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

of 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 section

130.60(2) of the New York Penal Law, for which he was sentenced to serve

1 year in prison. The section of New York law under which he was convicted

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states that a “person is guilty of sexual abuse in the second degree when he

subjects another person to sexual contact and when such other person is . . .

(2) [l]ess than fourteen years old.” N.Y. Penal Law § 130.60 (McKinney

2000). The term “sexual contact” is defined as the “touching of the sexual or

other intimate parts of a person . . . for the purpose of gratifying sexual desire

of either party.” N.Y. Penal Law § 130.00(3) (McKinney 2000). As the

indictment in this case reveals, the victim was only 11 years old and was

subjected to sexual contact by the respondent. An offense under this section

of law is a class A misdemeanor, which is punishable by imprisonment for

1 year or less. N.Y. Penal Law § 70.15 (McKinney 2000).

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 sections 101(a)(43)(A) and (F) of the Act, 8 U.S.C. §§ 1101(a)(43)(A) and

(F) (2000). We agree. Although we concur with the Immigration Judge that

the respondent’s conviction was not for a crime of violence under section

101(a)(43)(F),1 we conclude that the offense, although a misdemeanor, meets

the definition of an “aggravated felony” in section 101(a)(43)(A) of the Act,

as an offense of “sexual abuse of a minor.”

This is not the first time we have addressed the issue whether the definition

of an aggravated felony set forth in section 101(a)(43)(A) encompasses

misdemeanor crimes of rape or sexual abuse. In Matter of Crammond,

23 I&N Dec. 9 (BIA 2001), a closely divided Board determined that

misdemeanor offenses are not included in this section of the Act. 2 We

subsequently vacated Matter of Crammond upon learning that the alien in

that case had departed the United States prior to the issuance of our decision.

Matter of Crammond, 23 I&N Dec. 179 (2001); see also 8 C.F.R. § 3.2(d)

(2001).

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).

1

Because the respondent’s crime is a misdemeanor, it does not come within the definition of

a “crime of violence” in 18 U.S.C. § 16(b) (2000), which covers only felony offenses.

Moreover, as the respondent’s offense does not involve as an element the use of violent or

destructive physical force, it also does not qualify as a crime of violence pursuant to 18 U.S.C.

§ 16(a) under the law of the United States Court of Appeals for the Fifth Circuit, in whose

jurisdiction this case arises. See United States v. Landeros-Gonzalez, 262 F.3d 424, 426 (5th

Cir. 2001).

2

Four opinions were rendered, none of which commanded adherence by a majority of Board

Members.

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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 conforms to the federal definition [of that term] found

in 8 U.S.C. § 1101(a)(43),” thus signaling its possible agreement with the

result reached by its three sister circuits. United States v. Robles-Rodriguez,

281 F.3d 900, 903 (9th Cir. 2002). Moreover, to our knowledge no federal

court has concluded that section 101(a)(43)(A) of the Act pertains only to

felony offenses.

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.

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.

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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 section

101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(43)(A) (2000), as is reflected in the various opinions in Matter of

Crammond, 23 I&N Dec. 9 (BIA), vacated, 23 I&N Dec. 179 (BIA 2001).

We properly reexamine that question because Crammond no longer stands as

precedent, because several courts of appeals have rejected the conclusion we

reached in Crammond, and because we have a long-standing concern over

nationwide uniformity in the application of the statute.

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” appears 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 18 U.S.C.

§ 924(c)(2) (2000)). In the end, then, I would not defer to the judicial

construction of the term “aggravated felony” in circuits that have not spoken

on the question at hand, unless I viewed the particular construction as

reflecting the better interpretation of the statutory language.

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,

1

See section 276(b) of the Act, 8 U.S.C. § 1326(b) (2000) (criminal provisions referencing

the term “aggravated felony”).

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I understand the term “aggravated felony” to refer to felony convictions,

except where the literal language of a particular subparagraph of section

101(a)(43) of the Act otherwise specifies. The literal language of section

101(a)(43)(A) does not direct us to include misdemeanor convictions. Thus,

the respondent’s state misdemeanor conviction should not be treated as an

aggravated felony.

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 erroneous. 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 N.Y. Penal

Law § 130.60(2) (McKinney 2000). There is no dispute that the respondent’s

conviction is not for a crime of violence as defined in section 101(a)(43)(F)

of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000),

which, in turn, relies on the definition of a “crime of violence” that Congress

provided at 18 U.S.C. § 16 (2000). First, the use of physical force is not an

element of the offense, as defined under 18 U.S.C. § 16(a); second, the

offense is not a felony, as required under § 16(b). A conviction must be for

a felony offense under the law of the jurisdiction in which the conviction

occurs in order to constitute a crime of violence under § 16(b). Francis v.

Reno, 269 F.3d 162, 169 (3d Cir. 2001) (“Labeling a particular offense as a

misdemeanor should end the matter for the purposes of § 16(b).”). But see

United States v. Urias-Escobar, 281 F.3d 165, 167-68 (5th Cir. 2002).

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 section 101(a)(43)(A) of the Act. Section 101(a)(43)(A) has

not been expanded to encompass offenses for which a particular sentence is

imposed. Cf. section 101(a)(43)(F) of the Act. Accordingly, the

determination whether the respondent was convicted of an aggravated felony

as charged depends on whether the term “aggravated felony” encompasses not

just felony offenses, but also misdemeanor offenses. The majority concludes

that it does. I disagree.

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

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minor” must be for a felony offense in order for the crime to be considered

an aggravated felony under section 101(a)(43)(A) of the Act. 1 This

reasonable conclusion rests on two principal grounds.

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, at 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.”).

1

We vacated that decision on jurisdictional grounds upon learning that the respondent had

departed the United States prior to our order, but we did not reconsider or vacate the decision

on the merits.

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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 our 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 section 101(a)(43)(A) is not plain. Id. (“We do not find a

clear expression of congressional intent in the plain language of section

101(a)(43) of the Act.”). At the very least, given our disparate interpretations

in less than a 2-year period, the language appears to be ambiguous in the

practical sense. See Matter of Small, 23 I&N Dec. 448, 451 (Filppu,

dissenting) (“There is substantial room for disagreement on the question

whether a misdemeanor may constitute an ‘aggravated felony’ under section

101(a)(43)(A) . . . .”).

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 “deportation 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 deportation 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

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should be considered a felony if the offense sounds like one that is articulated

under the aggravated felony definition.

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 the 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 section 101(a)(43)(B) of the Act from section 101(a)(43)(F),

under which an offense with a sentence of at least 1 year is an aggravated

felony).

The existing circuit court rulings that address section 101(a)(43)(A) of the

Act are questionable and do not mandate our adoption of a nationwide rule.

For example, in Guerrero-Perez v. INS, 242 F.3d 727, 736 (7th Cir.), reh’g

denied, 256 F.3d 546 (7th Cir. 2001), the Seventh Circuit pointed to

Congress’ grouping of the crime of sexual abuse of a minor with the crimes

of murder and rape in subparagraph (A) of section 101(a)(43) as “a fairly

strong indication, albeit a limited one . . . , that Congress intended both

misdemeanor and felony convictions for sexual abuse of a minor to be

considered aggravated felonies.” However, the grouping of sexual abuse of

a minor with murder and rape, crimes almost universally classified as

felonies, appears to provide greater support for the argument that Congress

intended to cover only felony offenses involving sexual abuse of a minor.

Similarly, the reasoning of the Eleventh Circuit was 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).

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However, there is no basis for reading “including a misdemeanor” into the

aggravated felony offenses defined in section 101(a)(43)(A) of the Act.

When Congress wished to expand the scope of the aggravated felony

classification to encompass offenses that would otherwise be considered

misdemeanors, it did so expressly. See, e.g., sections 101(a)(43)(F), (G) of

the Act (imposing a sentence requirement of “at least one year” that

encompasses misdemeanor offenses in which a sentence of 1 year may be

imposed); United States v. Graham, supra, at 792 (finding that the term

“includes certain misdemeanants who receive a sentence of one year”

(emphasis added)). It is well settled that where language is included in one

section of a provision and omitted in another section, the disparate inclusion

or exclusion is presumed to be intentional. INS v. Cardoza-Fonseca, supra,

at 432 (citing Russello v. United States, 464 U.S. 16, 23 (1983) (citing United

States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))).

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, supra, at 792.

Furthermore, we have only recently found it inappropriate 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 section 101(a)(48)(A) of the Act, we have no authority to

make such an exception” where Congress did not provide one). Given this

authority, I conclude that each subparagraph of section 101(a)(43) of the Act

must be read and interpreted according to its own terms.

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 section

101(a)(43)(A) of the Act is no exception. INS v. Aguirre-Aguirre, 526 U.S.

415, 424-25 (1999). Nothing about this case suggests that we should defer

to a particular decision of one or two circuit courts in exercising our

authority, and to do so simply begs the question.

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, admittedly, 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

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aside, I believe that the majority has reached an erroneous conclusion as a

matter of law. Therefore, I dissent.

457