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Interim Decision #3443

*Vacated, 23 I&N Dec. 179 (BIA 2001)

In re Robin Juraine CRAMMOND, Respondent

File A41 925 300 - San Pedro

Decided March 22, 2001

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A conviction for “murder, rape, or sexual abuse of a 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 Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

(2) In determining whether a state conviction is for a felony offense for immigration

purposes, the Board of Immigration Appeals applies the federal definition of a felony set

forth at 18 U.S.C. § 3559(a)(5) (1994).

FOR RESPONDENT: Laurack D. Bray, Esquire, Ventura, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Lori Bass, Assistant

District Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; HOLMES, VILLAGELIU,

GUENDELSBERGER, MOSCATO, BRENNAN, ESPENOZA, and OSUNA,

Board Members.

Concurring Opinions:

FILPPU, Board Member;

ROSENBERG, Board Member, joined by MILLER, Board Member.

Dissenting Opinion: GRANT, Board Member, joined by DUNNE, Vice

Chairman; SCIALABBA, Vice Chairman; HEILMAN, HURWITZ, COLE,

MATHON, JONES, and OHLSON, Board Members.

GUENDELSBERGER, Board Member:

This matter was last before us on November 4, 1999, when we dismissed the

respondent’s appeal of an Immigration Judge’s April 1, 1999, decision finding

him subject to removal as charged and statutorily ineligible for the relief

requested. On February 1, 2000, the respondent filed a motion to reopen with

the Board. The motion will be granted and the record will be remanded to the

Immigration Judge for further proceedings. The request for oral argument is

denied. See 8 C.F.R. § 3.2(h) (2000).

I. FACTS AND PROCEDURAL HISTORY

The respondent is a native and citizen of Belize who entered the United States

as a lawful permanent resident on March 7, 1988. The record reflects that the

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Interim Decision #3443

respondent was convicted on March 23, 1998, in the Superior Court of

California, Ventura County, of two separate crimes: (1) residential burglary, in

violation of section 459 of the California Penal Code, for which he was

sentenced to 210 days in jail and 3 years of probation; and (2) unlawful sexual

intercourse, in violation of section 261.5(c) of the California Penal Code, for

which he was sentenced to 90 days in jail, to run consecutive to his sentence for

the burglary conviction, and 3 years of probation.

The respondent’s motion to reopen relates solely to our November 4, 1999,

determination that his conviction for unlawful sexual intercourse was for an

“aggravated felony” within the meaning of section 101(a)(43)(A) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999), and

that he was consequently removable under section 237(a)(2)(A)(iii) of the Act,

8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. V 1999), and ineligible for certain forms

of relief as a result of that aggravated felony conviction. See generally 8 C.F.R.

§ 3.2(c)(1).

Specifically, the respondent argues that his March 23, 1998, conviction for

“unlawful sexual intercourse” can no longer be considered a conviction for an

“aggravated felony” under section 101(a)(43)(A) of the Act, because the state

court reduced the offense from a felony to a misdemeanor. Consequently, he

argues that he should be allowed to pursue relief from removal because he is not

an “aggravated felon.” In support of his motion, he has submitted a copy of a

computer printout reflecting docket entries for October 21, 1999, in the

Ventura County Superior Court, which indicate that the respondent’s offense

was reduced to a misdemeanor.1

II. ISSUE

The issue in this case is whether the respondent has been convicted of an

“aggravated felony” under section 101(a)(43)(A) of the Act. This determination

turns on whether that section includes a conviction for a misdemeanor, as

opposed to a felony, and whether the misdemeanor/felony distinction is

governed by state or federal law.

The issue we decide here concerns only the interpretation of section

101(a)(43)(A). Our examination of other sections is for the purpose of

determining whether their language or structure may shed light on the intended

scope of section 101(a)(43)(A). See, e.g., Matter of Vasquez-Muniz, Interim

Decision 3440 (BIA 2000) (determining the meaning of “described in” under

section 101(a)(43)(E) of the Act after reviewing use of the same or similar

language in other provisions of the Act).

The Service has not challenged the respondent’s contention that his crime was reduced

from a felony to a misdemeanor under state law.

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Interim Decision #3443

III. ANALYSIS

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

Section 101(a)(43) of the Act defines the categories of offenses that

Congress has determined merit treatment as “aggravated felonies” under the

immigration laws. Section 101(a)(43)(A) includes the crime of “sexual abuse

of a minor” within the definition of an aggravated felony. Specifically, the

statute provides, in pertinent part, as follows:

The term “aggravated felony” means—

(A) murder, rape, or sexual abuse of a minor; 2

....

The term applies to an offense described in this paragraph whether in violation of Federal

or State law . . . .

Section 101(a)(43)(A) of the Act. The issue before us is whether the language

of the statute mandates that an offense described in section 101(a)(43)(A) be

a “felony” offense.

Interpretation of statutory language begins with the terms of the statute itself,

and if those terms, on their face, constitute a plain expression of congressional

intent, they must be given effect. Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984). The legislative purpose

is presumed to be expressed by the ordinary meaning of the words used. INS v.

Phinpathya, 464 U.S. 183, 189 (1984). In discerning congressional intent, the

words of a statute must be read in their context and with a view to their place in

the overall statutory scheme, as the meaning (or the ambiguity) of certain words

or phrases may only become evident when placed in context. See Food and

Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132

(2000).

We do not find a clear expression of congressional intent in the plain

language of section 101(a)(43) of the Act. The choice of the term “aggravated

felony,” as opposed to more generic terms such as “aggravated offense” or

“aggravated crime,” does suggest that Congress intended to restrict the listed

offenses to felonies. On the other hand, there is no explicit reference in section

101(a)(43)(A) requiring that the crimes included there be felonies.

Looking beyond section 101(a)(43)(A), some of the other aggravated felony

provisions refer to other federal statutes, or they require minimum sentences

or minimum monetary loss amounts for an offense to qualify as an aggravated

felony. Specifically, section 101(a)(43)(B) requires, by reference to federal

statutes regarding illicit trafficking in a controlled substance at 21 U.S.C. § 802

The current version of section 101(a)(43)(A) results from the addition of the offenses of

rape and sexual abuse of a minor by section 321(a)(1) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546, 3009-627 (“IIRIRA”).

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and drug trafficking at 18 U.S.C. § 924(c), that an offense be punishable as a

felony. See section 101(a)(43)(B) of the Act; Matter of K-V-D-, Interim

Decision 3422 (BIA 1999) (affirming Matter of L-G-, 21 I&N Dec. 89 (BIA

1995), and concluding that an alien convicted in Texas of simple possession of

a controlled substance, which would be a felony under Texas law but a

misdemeanor under federal law, is not convicted of an aggravated felony within

the meaning of section 101(a)(43)(B) of the Act); see also United States v.

Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998); United States v. GarciaOlmeda, 112 F.3d 399 (9th Cir. 1997).

Section 101(a)(43)(F) of the Act refers specifically to the federal definition

of a “crime of violence” in 18 U.S.C. § 16, which requires that any crime falling

within § 16(b) be a felony but contains no such requirement for offenses falling

within § 16(a). It further provides a specific minimum sentence of “at least

1 year” for the offense. Thus, this section has been found to include crimes that

are not “felonies” within the federal definition of that term.3 See United States

v. Pacheco, 225 F.3d 148 (2d Cir. 2000) (finding, for sentence enhancement

purposes, that a misdemeanor offense for which the alien had been sentenced to

a 1-year suspended sentence was an aggravated felony within the meaning of the

Act); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000) (finding that the plain

language of section 101(a)(43)(F) contains no requirement that the offense have

been a felony, and concluding that the alien’s misdemeanor conviction for

sexual battery was for an aggravated felony). Section 101(a)(43)(G) also

defines as aggravated felonies theft or burglary offenses for which the sentence

is “at least 1 year,” without further qualification. See section 101(a)(43)(G) of

the Act; see also United States v. Pacheco, supra; United States v. Graham,

169 F.3d 787 (3d Cir.) (finding, for sentence enhancement purposes, that a

misdemeanor theft conviction for which the term of imprisonment is 1 year is

an aggravated felony conviction under section 101(a)(43)(G)),cert. denied, 528

U.S. 845 (1999).

As indicated by the separate opinions in this case, the language of section

101(a)(43) of the Act can be read to support competing reasonable

interpretations of whether an offense under subparagraph (A) must be a felony.

These differing views are expressed in the concurring opinions of Board

Members Filppu and Rosenberg, who agree that a subparagraph (A) offense must

be a felony in order to meet the definition of an “aggravated felony,” and in the

dissenting opinion of Board Member Grant, who concludes that such offenses

need not be felonies.

Where the language of the statute is ambiguous, we turn to traditional tools

of statutory construction, such as the legislative history or other statutes where

Congress may have spoken subsequently and more specifically regarding the

issue at hand. See Food and Drug Admin. v. Brown & Williamson Tobacco

Corp., supra, at 133. Although legislative statements have less force than the

The federal definition of a “felony” requires that the minimum term of imprisonment be

“more than 1 year.” 18 U.S.C. § 3559(a)(5) (1994).

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Interim Decision #3443

plain language of the statute, such statements are helpful to corroborate and

underscore a reasonable interpretation of the statute. See generally, e.g.,

Weinberger v. Rossi, 456 U.S. 25, 32 (1982). There is little indication in other

sections of the Act or in the overall statutory scheme of Congress’ intentions

concerning the offenses listed in section 101(a)(43)(A). However, the addition

of section 237(a)(2)(E) of the Act as a ground of removability,4 which includes

such crimes against children as child abuse, child neglect, and child

abandonment, suggests that Congress intended “sexual abuse of a minor”

offenses under section 101(a)(43)(A) to be limited to felony offenses. This is

indicated by the fact that lesser sexual abuse offenses would be covered under

section 237(a)(2)(E).

The language in former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994),

also supports the position that aggravated felony crimes are necessarily felony

offenses. That section barred relief to an alien who was “convicted of one or

more aggravated felonies and has served for such felony or felonies a term of

imprisonment of at least 5 years.”5 The reference to “such felony” suggests that,

at least at the time this amendment was enacted, aggravated felonies were

considered felony offenses. Similarly, as discussed in Board Member Filppu’s

concurring opinion, the IIRIRA left intact at least one provision in the Act in

which the term “such felon” is used in reference to a person convicted of an

aggravated felony.

The legislative history of section 101(a)(43) of the Act indicates that

Congress intended to include only the most serious offenses within the

aggravated felony definition. The term “aggravated felony” was first introduced

to the Act by section 7342 of the Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, 102 Stat. 4181, 4469 (“ADAA”). As stated in the House Conference

Report accompanying S. 358, which resulted in amendments to the aggravated

felony definition by section 501 of the Immigration Act of 1990, Pub. L. No.

101-649, 104 Stat. 4978, 5048, the intent of the 1990 amendments was to

“broaden[] the list of serious crimes, conviction of which results in various

disabilities and preclusion of benefits under the Immigration and Nationality

Act.” H.R. Conf. Rep. No. 101-955 (1990), reprinted in 1990 U.S.C.C.A.N.

6784, 6797.

Since the ADAA first used and defined the term aggravated felony in 1988,

Congress has expanded the definition on several occasions, signaling its growing

concern over criminal aliens. See Matter of Truong, Interim Decision 3416

(BIA 1999); see also Immigration and Nationality Technical Corrections Act

of 1994, Pub. L. No. 103-416, § 222(a), 108 Stat. 4305, 4320. One of the bills

containing amendments to the aggravated felony definition proposed limiting

Section 237(a)(2)(E) of the Act was added by section 350 of the IIRIRA, 110 Stat. at

3009-640.

This language was added to former section 212(c) by section 511 of the Immigration Act

of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5052. Section 212(c) was repealed by section

304(b) of the IIRIRA, 110 Stat. at 3009-597.

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Interim Decision #3443

aggravated felonies to those crimes that would have a base offense level of 12

or more under the United States Sentencing Guidelines (“U.S.S.G.”). See H.R.

22, 104th Cong. (1995). According to chapter 5, Part A, Zone D of the U.S.S.G.

Sentencing Table, a base offense level of 12 provides, with one exception, for

a minimum term of imprisonment of 12 to 18 months. See 18 U.S.C.A. ch. 5,

pt. A (West 1996).

In the legislative history accompanying the bill that set forth the proposed

amendments to section 101(a)(43)(A) of the Act that were eventually enacted

in the IIRIRA, the Committee on the Judiciary referred to the offenses under

that section as felonies. Specifically, in discussing the amendments precluding

an alien convicted of an aggravated felony from applying for adjustment of

status, the Committee noted that “[b]ecause of the expanded definition of

‘aggravated felony’ provided by sec. 161 of the bill, aliens who have been

convicted of most felonies, if sentenced to at least 1 year in prison, will be

ineligible for this relief.” S. Rep. No. 104-249, at 40 (1996) (emphasis added).

Overall, the legislative history and other interpretive aids provide less than

clear guidance as to whether Congress intended that offenses falling within the

aggravated felony definition at section 101(a)(43)(A) should be limited to

felony offenses.

It is not evident from the language of the statute or from the legislative

history whether Congress intended that an offense listed in section

101(a)(43)(A) must be a felony in order to be considered an aggravated felony.

We therefore turn to the “longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the alien.” See INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (citing INS v. Errico, 385 U.S.

214, 225 (1966); Costello v. INS, 376 U.S. 120, 128 (1964); Fong Haw Tan

v. Phelan, 333 U.S. 6, 10 (1948)). The consequences of a finding that a crime

is an “aggravated felony” are severe. Congress has specifically noted its

intention that aliens convicted of such crimes should be subjected to various

disabilities under the immigration laws and precluded from nearly all forms of

relief. In light of these harsh consequences, we resolve the ambiguity presented

by this case in favor of the respondent. Thus, we find that if an alien has been

convicted of an offense of “murder, rape, or sexual abuse of a minor,” that

conviction must be for a “felony” in order for the crime to be considered an

“aggravated felony” under section 101(a)(43)(A) of the Act.

We recognize that the United States Court of Appeals for the Seventh Circuit

has recently determined that section 101(a)(43)(A) of the Act encompasses

state misdemeanor convictions for sexual abuse of a minor. See GuerreroPerez v. INS, 2001 WL 210186 (7th Cir. 2001). The court in Guerrero-Perez

noted that, although it would ordinarily defer to the Board’s interpretation of

immigration law, the Board’s decision in the case before it was “silent with

regard to the issue of whether Guerrero’s misdemeanor conviction can be

deemed an aggravated felony.” Id. at *2. Therefore, the court addressed the

issue as a matter of first impression. After examining the structure and

evolution of section 101(a)(43), the court concluded that “Congress, since it did

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not specifically articulate that aggravated felonies cannot be misdemeanors,

intended to have the term aggravated felony apply to the broad range of crimes

listed in the statute, even if these include misdemeanors.” Id. at *9.

In Guerrero-Perez, the Seventh Circuit focused primarily upon two factors

in reaching its conclusion. First, it found that the grouping of sexual abuse of

a minor with murder and rape in section 101(a)(43)(A) was “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. Id. at 8. Second, it emphasized the word “means” in the definition of

aggravated felony. We find it difficult to accept these factors as dispositive. As

to the first factor, the grouping of sexual abuse of a minor with murder and rape,

crimes almost universally classified as felonies, appears to cut both ways, if not

to provide greater support for the argument that Congress intended to cover only

felony sexual abuse of a minor offenses. The second factor, the focus upon the

term “means,” does not necessarily resolve the issue of the significance of

Congress’ choice of the term “aggravated felony” to describe the overall

category of offenses.

The Seventh Circuit confines its examination of the statute to section

101(a)(43) and does not address the use of the term “aggravated felony” in other

sections of the Act. As discussed above, the term is used in other sections of

the Act in contexts that suggest a focus on felony offenses. The Seventh Circuit

does not address our decision and analysis in Matter of Davis, 20 I&N Dec.

536, 542-43 (BIA 1992), which emphasizes the importance, for purposes of

uniformity, of a felony offense in order to have an aggravated felony under

section 101(a)(43)(B) of the Act. Finally, the Seventh Circuit does not fully

address the interpretive principle that we resolve doubts in favor of the more

narrow construction of deportation statutes. For these reasons, after taking into

account the analysis set forth in Guerrero-Perez v. INS, supra, we nevertheless

conclude that an aggravated felony under section 101(a)(43)(A) of the Act must

be a felony offense.

B. Respondent’s Conviction

We have determined that an offense under section 101(a)(43)(A) of the Act

must be a felony offense. The question remains whether the respondent’s

offense is a felony. Where a state criminal conviction is at issue, this

determination turns on whether the state or the federal definition of a “felony”

controls.

Important policy considerations favor applying a uniform federal standard in

adjudicating removability and determining the immigration consequences of a

conviction under the Act. The states use a variety of approaches in defining the

term “felony.”6 To assure uniform treatment under the immigration laws, unless

For example, California does not differentiate between felony and misdemeanor offenses

(continued...)

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Interim Decision #3443

otherwise directed, we turn to the federal definition of a felony in applying the

terms of the aggravated felony provision. We have followed this approach in

many recent decisions that interpret the Act. See Matter of K-V-D-, supra;

Matter of Punu, Interim Decision 3364 (BIA 1998); Matter of L-G-, supra;

Matter of Davis, supra. This system of classification provides a uniform

benchmark against which to assess the immigration consequences of individual

state convictions, and it frees us from the necessity of relying on “‘the vagaries

of state law.’” Matter of K-V-D-, supra, at 7 (quoting Matter of A-F-, 8 I&N

Dec. 429, 446 (BIA, A.G. 1959)). Thus, we find it appropriate to apply the

federal definition of a felony in determining whether a state offense is a felony

for immigration purposes.

Under federal law, an offense is defined as a felony if it is one for which the

maximum term of imprisonment authorized is, at a minimum, “more than

1 year.” 18 U.S.C. § 3559(a)(5) (1994). An offense is classified as a

misdemeanor if the maximum authorized term of imprisonment is “one year or

less,” and the minimum authorized term of imprisonment is 5 days. 18 U.S.C.

§§ 3559(a)(6)-(8).

At the time of our November 4, 1999, decision, the conviction documents

in the record indicated that the respondent had been convicted of a “felony

charge” under section 261.5(c) of the California Penal Code and that he had

entered a plea with the understanding that he could be sentenced to a maximum

penalty of 3 years in prison for the offense.

In conjunction with his motion, however, the respondent has presented new

evidence indicating that his offense has been reduced to a “misdemeanor.” The

pertinent language of the state statute at issue in this case provides as follows:

Any person who engages in an act of unlawful sexual intercourse with a minor who is

more than three years younger than the perpetrator is guilty of either a misdemeanor or

a felony, and shall be punished by imprisonment in a county jail not exceeding one year,

or by imprisonment in the state prison.

Cal. Penal Code § 261.5(c) (West 1998). As this language indicates, the statute

is divisible, in that persons may be charged and convicted either for a crime

punishable as a misdemeanor (with a maximum term of imprisonment in a

county jail not exceeding 1 year) or for a crime punishable as a felony (by

(...continued)

with respect to the maximum authorized term of imprisonment. Rather, a felony is defined

as “a crime which is punishable with death or by imprisonment in the state prison,” and all

other offenses are considered misdemeanors or infractions. Cal. Penal Code § 17(a) (West

2000). California law provides that an offense is a misdemeanor under various

circumstances when discretion is left to the state court to determine whether the offense

shall be punished by imprisonment in the state prison, by a fine, or by imprisonment in the

county jail. See Cal. Penal Code § 17(b). Other states have similarly vague categorizations

of crimes that are not necessarily tied to the maximum authorized term of imprisonment.

See, e.g., Mass. Gen. Laws Ann. ch. 274, § 1 (West 2000).

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imprisonment in the state prison, if the term of imprisonment exceeds 1 year).

Given the reduction of the respondent’s crime to a “misdemeanor,” we find that

his conviction falls within that portion of the statute punishing misdemeanor

offenses. The maximum term of imprisonment for the misdemeanor portion of

section 261.5(c) of the California Penal Code is “imprisonment in a county jail

not exceeding one year.” Because the federal definition of a felony requires

that the term of imprisonment be for “more than one year,” 18 U.S.C.

§ 3559(a)(5), the respondent’s conviction—if modified as indicated in the

motion to reopen—would not be for an offense falling within the federal

definition of a felony.

IV. CONCLUSION

In light of our determination that the new evidence presented by the

respondent in conjunction with his motion constitutes prima facie evidence that

the offense of which he was convicted, unlawful sexual intercourse, does not

fall within the federal definition of a felony, we conclude that it is not an

aggravated felony under section 101(a)(43)(A) of the Act. The new evidence is

therefore material to the respondent’s case, as the conviction would no longer

appear to support a finding of removability under section 237(a)(2)(A)(iii) of

the Act. Nor would it preclude him from seeking certain forms of relief from

removal, for which he was previously found statutorily ineligible as a result of

his conviction for an aggravated felony.

Accordingly, we find it appropriate to grant the respondent’s motion to

reopen and to remand this matter to the Immigration Judge for further

proceedings. The following orders will be entered.

ORDER: The motion to reopen is granted.

FURTHER ORDER: The proceedings are reopened and the record is

remanded to the Immigration Judge for further proceedings consistent with the

foregoing opinion and for the entry of a new decision.

CONCURRING OPINION: Lauri Steven Filppu, Board Member

I respectfully concur.

I agree with the majority that current subparagraph (A) of the “aggravated

felony” definition is limited to felony convictions and that we should apply the

federal “felony” definition for convictions falling within this subparagraph. See

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

§ 1101(a)(43)(A) (Supp. V 1999). Unlike the majority, however, I do not find

this to be a case in which we must invoke the rule of lenity. The ordinary

approach to questions of statutory construction provides an answer.

Section 101(a)(43)(A) of the Act provides that “[t]he term ‘aggravated

felony’ means— (A) murder, rape, or sexual abuse of a minor.” The

respondent’s unlawful sexual intercourse offense has been reduced from a

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felony to a misdemeanor. We must determine whether it is an “aggravated

felony.” The plain or natural reading of the word “felony” would not include

misdemeanors.

The statutory context in which the term “aggravated felony” was introduced

confirms for me that it then applied only to felonies. This term had its origin

in section 7342 of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 100

Stat. 4181, 4469 (“ADAA”), and was restricted to murder, drug trafficking

crimes, illicit trafficking in firearms or destructive devices, and any attempts or

conspiracies to commit such acts. These are obviously serious offenses. They

are likely to be felonies, but perhaps not necessarily so.

Importantly, the ADAA also made other changes showing that the legislation

was aimed at “felons.” The ADAA revised the custody provisions of former

section 242(a) of the Act, 8 U.S.C. § 1252(a) (1988), to require the Attorney

General to take custody of “any alien convicted of an aggravated felony” and

then directed that “the Attorney General shall not release such felon from

custody.” ADAA § 7343(a)(4), 102 Stat. at 4470 (emphasis added). The ADAA

further added a new section 242A to the Act, which was designed to expedite the

deportation of aliens convicted of aggravated felonies. See section 242A of the

Act, 8 U.S.C. § 1252a (1994). New section 242A(b) provided in relevant part

as follows:

With respect to an alien convicted of an aggravated felony who is taken into custody by

the Attorney General . . . , the Attorney General shall, to the maximum extent

practicable, detain any such felon at a facility at which other such aliens are detained.

ADAA § 7347(a), 102 Stat. at 4471, 4472 (emphasis added). This provision

currently appears as section 238(a)(2) of the Act, 8 U.S.C. § 1228(a)(2) (Supp.

V 1999). The natural meaning of the term “aggravated felony” and these related

statutory references to “such felon,” which were part of the original enactment,

seem to foreclose any reasonable argument that the term then was meant

generally to include misdemeanors.

The analysis we used in Matter of Davis, 20 I&N Dec. 536 (BIA 1992),

confirms the “felony” focus of the statutory phrase, even though the alien in

Davis had been convicted under a state law misdemeanor provision of

conspiracy to distribute a controlled substance. We found this state

misdemeanor to be an aggravated felony, in significant part, because it was

analogous to a federal felony and fit within our reading of what constituted a

felony “drug trafficking crime.” We explained that

we would not conclude, based solely on the common definitions of “traffic” or

“trafficking,” and considering that the ultimate term in question is “aggravated felony,”

that an offense that is not a felony and/or an offense which lacks a sufficient nexus to

the trade or dealing of controlled substances constitutes “illicit trafficking” in a controlled

substance within the meaning of section 101(a)(43) of the Act.

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Matter of Davis, supra, at 541. We followed our historical approach with

respect to the “conspiracy” aspect of the alien’s conviction by looking to the

underlying offense. In Davis, we found that the “underlying offense is a felony,”

id. at 545, and consequently found the alien deportable for having been

convicted of an “aggravated felony.” Regardless of whether Davis reflects a

correct understanding of the criminal law meaning of a “drug trafficking crime,”

see Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001), we were mindful in our

analysis that the term in question looked to a “felony.” Indeed, much of that

analysis would seem to have been unnecessary if we understood an “aggravated

felony” to routinely include misdemeanor convictions.

That does not end the matter, however. The “aggravated felony” definition

has undergone a series of amendments. Rape and sexual abuse of a minor were

added to section 101(a)(43)(A) of the Act by section 321(a)(1) of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C of

Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627 (“IIRIRA”). New

legislation, of course, may alter the character or meaning of existing statutory

language. Importantly, in this respect, the IIRIRA also amended other

subparagraphs of the “aggravated felony” definition such that a literal reading of

several subparagraphs would cover certain misdemeanor convictions in addition

to felony convictions. See, e.g., section 101(a)(43)(G) of the Act (providing

that theft or burglary offenses are aggravated felonies if the term of

imprisonment is at least 1 year).

The IIRIRA’s inclusion of language covering certain misdemeanors within

various subparagraphs of the “aggravated felony” definition creates uncertainty

as to whether the IIRIRA fundamentally changed the original meaning of the

term. Consequently, we must look beyond the use of the word “felony” in the

original enactment to determine whether misdemeanor convictions fall within

subparagraph (A), as amended by the IIRIRA.

The United States Supreme Court directs us to look at a statute as a whole

when construing language that appears to be ambiguous. See Food and Drug

Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000);

John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94

95 (1993). The first place to look is in the IIRIRA itself, because the basic

question to be resolved is whether the design of the IIRIRA effected a change

in the prior meaning of the term “aggravated felony.”

I find little guidance in section 321 or in section 322(a)(2) of the IIRIRA.

See IIRIRA §§ 321, 322, 110 Stat. at 3009-627, 3009-629. These sections

made the amendments to the aggravated felony definition. But no

comprehensive design or pattern emerges to suggest that misdemeanor

convictions were in general to be treated as “aggravated felon[ies].” Rather,

sections 321 and 322(a)(2) of the IIRIRA extended the “aggravated felony”

definition to some misdemeanors mainly by reducing the periods of

imprisonment necessary for certain crimes to be treated as aggravated felonies.

For example, prior to the IIRIRA, section 101(a)(43)(G) required the

imposition of a 5-year sentence in order for a theft or burglary offense to be an

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aggravated felony. After enactment of the IIRIRA, the term of imprisonment

was reduced to “at least one year,” literally covering only those misdemeanors

receiving the maximum sentence. See section 101(a)(43)(G) of the Act.

The phrase “aggravated felony” is a term of art. It does not mandate that the

crimes actually be felonies when the literal language of a particular subparagraph

includes offenses that are misdemeanors. See United States v. Christopher,

239 F.3d 1191 (11th Cir. 2001); United States v. Pacheco, 225 F.3d 148 (2d

Cir. 2000); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000); United States v.

Graham, 169 F.3d 787 (3d Cir.), cert. denied, 528 U.S. 845 (1999). Further,

there is room to argue that the term “aggravated felony” must generally bear a

different meaning after enactment of the IIRIRA in order to give effect to the

literal language of those subparagraphs that now include misdemeanors. See

Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998). Indeed, one

court has ruled that misdemeanor convictions are encompassed within section

101(a)(43)(A), but I agree with the majority that the court did so without the

benefit of the analysis we provide today. Guerrero-Perez v. INS, 2001 WL

210186 (7th Cir. 2001).

In the end, I find the inclusion of some “top-end” misdemeanors and a few

others (e.g., section 101(a)(43)(N) covers certain misdemeanor alien smuggling

first offenses) to be scant evidence of a general design or objective to effect a

significant departure from the meaning previously assigned to the term

“aggravated felony.” I would expect to find some mention of such a design in

the legislative history of the IIRIRA.

Most importantly, the IIRIRA did not alter the term itself or make

systematic changes to how the term is used elsewhere in the Act. The IIRIRA

left it as an aggravated “felony.” Had there been a broader intent to change the

term’s overall character, I would expect the term itself to have been amended in

keeping with that intent, such that it might now be labeled an “aggravated crime”

or an “aggravated offense.”

The IIRIRA did amend former section 242A of the Act, dealing with

expedited removal of aliens convicted of aggravated felonies, but the relevant

changes were simply amendments to redesignate it as section 238 and to

conform the cross-references to the new numbering system. See IIRIRA

§§ 308(b)(5), (c)(1), 110 Stat. at 3009-615. The reference in redesignated

section 238(a)(2) to “such felon” in relation to “an alien convicted of an

aggravated felony” was unchanged. I would expect the IIRIRA to have revised

the “such felon” reference if the IIRIRA had been attempting to fundamentally

alter the character of the term “aggravated felony” to routinely include

misdemeanor convictions.

Simply put, the overall design of the IIRIRA does not reflect any intent to

change the original meaning of the term “aggravated felony” in general. The fact

that the literal language of some subparagraphs would extend to a few

misdemeanors is not a basis for concluding that all of the subparagraphs now

cover misdemeanors too. The isolated inclusion by new legislation of a few

misdemeanors within a lengthy catalogue of crimes does not, in my opinion,

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signal a legislative shift in the meaning of the principal term being defined,

particularly when the new enactment, as a whole, fails to reflect any overall

effort to change the natural meaning of the words used in that term.

It is a “fair assumption that Congress is unlikely to intend any radical

departures from past practice without making a point of saying so.” Jones v.

United States, 526 U.S. 227, 234 (1999); see Green v. Bock Laundry Machine

Co., 490 U.S. 504, 521 (1989) (stating that a “party contending that legislative

action changed settled law has the burden of showing that the legislature

intended such a change”). The literal language of a few subparagraphs reflects

a departure, but the structure and design of the IIRIRA as a whole do not.

Consequently, I believe we must continue to give effect to the original design

of section 101(a)(43) of the Act, except where the literal language of a

particular subparagraph requires otherwise.

Current subparagraph (A) does not contain any explicit language overriding

the original felony character of the definition. Thus, I conclude that an offense

under subparagraph (A) must be a felony in order to qualify as an “aggravated

felony.”

CONCURRING OPINION: Lory Diana Rosenberg, Board Member, in

which Neil P. Miller, Board Member, joined

I respectfully concur.

I agree with the majority that the respondent’s 1998 misdemeanor conviction

for unlawful sexual intercourse is not a conviction for an aggravated felony.

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

§ 1101(a)(43)(A) (Supp. V 1999). Specifically, I agree that the term “aggravated

felony” in subparagraph (A) includes only a felony conviction for murder, rape,

or sexual abuse of a minor, and that the accepted federal definition of a “felony”

under 18 U.S.C. § 3559(a) (1994) applies in determining whether the

respondent’s state conviction constitutes a felony. Therefore, I concur in the

result reached by the majority.

However, I find that the statutory language and legislative history pertaining

to the term “aggravated felony” in general, and to subparagraph (A) in particular,

provides a sound and reasoned basis for these conclusions. While I agree that

the term “aggravated felony” and the specific language of subparagraph (A) may

not be altogether plain, the majority’s own opinion belies its conclusion that

“[t]here is little indication in other sections of the Act or in the overall statutory

scheme of Congress’ intentions concerning the offenses listed in section

101(a)(43)(A) .” Matter of Crammond, 23 I&N Dec. 9, 13 (BIA 2001). In

particular, I cannot agree that “[o]verall, the legislative history and other

interpretive aids provide less than clear guidance as to whether Congress

intended [to limit the offenses covered by subparagraph (A)] to felony

offenses.” Id. at 14. Similarly, I cannot agree that the language of the statute can

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be read to support “competing reasonable interpretations,” as though the

dissenting opinion provides but another equally tenable view we simply have

chosen not to adopt. Id. at 12.

To the contrary, I conclude that there is a significant expression of

congressional intent favoring the conclusion reached by the majority and that a

narrow construction of the statute limiting the reach of the aggravated felony

provision is appropriate. Therefore, I write separately.

I. STATUTORY CONSTRUCTION OF

SECTION 101(a)(43)(A) OF THE ACT

Section 101(a)(43)(A) of the Act provides that “[t]he term ‘aggravated

felony’ means— (A) murder, rape, or sexual abuse of a minor.” (Emphasis

added.) Presumably, Congress’ intent is communicated by the language it

employs. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-43 (1984) (focusing first on the language of the statute to

determine what Congress meant or intended); see also Norfolk and W. Ry. Co.

v. American Train Dispatchers’ Ass’n, 499 U.S. 117, 128 (1991) (emphasizing

that statutory construction must begin with the language of the statute). In INS

v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Supreme Court addressed

section 101(a)(42), another definitional provision of the Act, stating 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.’”’” Id. at 432 (quoting INS v. Phinpathya, 464 U.S.

183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68

(1982) (quoting Richards v. United States, 369 U.S. 1, 9 (1962)))) (emphasis

added).

Term of art or not, the principle that “‘[a] definition which declares what a

term “means” . . . excludes any meaning that is not stated’” as readily—and more

rationally—supports reading the term “aggravated felony” to exclude

misdemeanors where Congress has not specifically stated their inclusion in the

definition, than it does reading the term overinclusively to include

misdemeanors because Congress did not affirmatively specify “misdemeanors

not included.” Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 2615

(2000) (quoting Colautti v. Franklin, 439 U.S. 379, 393 n.10 (1979) (quoting

2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp.

1978))); see Matter of Crammond, supra, at 33 (Grant, dissenting). The

ambiguity created by Congress’ silence in subparagraph (A) as to whether the

covered convictions are limited to felony offenses, and Congress’ inclusion of

particular minimum sentence requirements and minimum fine provisions in

other subparagraphs of section 101(a)(43), gives rise to questions regarding the

scope of the term “aggravated felony.” Accordingly, I agree that an examination

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of the statutory language and the legislative history accompanying the enactment

and modification of the term “aggravated felony” and the crimes it covers is

warranted.

A. Statutory Language

The absence of language specifying the degrees of offenses Congress

intended to cover in articulating what “aggravated felony” means for purposes

of subparagraph (A) leaves a gap which it is our role to fill. Chevron , U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., supra, at 843. In interpreting

statutes, we begin with the language of the statute itself. Aragon-Ayon v. INS,

206 F.3d 847, 851 (9th Cir. 2000). With respect to the provision before us,

Congress used the words “aggravated” and “felony” prominently in the

principal clause of the definition, referring to convictions for certain types of

offenses included in the subparagraphs of the section. Since introducing it in

1988 to identify more serious offenses warranting more severe immigration

consequences, Congress has not modified the term “aggravated felony.” See

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7342, 102 Stat. 4181,

4469; cf. Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Division C of Pub. L. No. 104-208, § 321(a)(1), 110 Stat. 3009-546,

3009-627 (“IIRIRA”).

The commonly understood meaning of the word “felony” is plain: it refers

to a degree of crime that is serious and that does not include misdemeanors.

See United States v. Graham, 169 F.3d 787, 792-93 (3d Cir.) (acknowledging

a uniformly accepted federal standard for differentiating between felonies and

misdemeanors), cert. denied, 528 U.S. 845 (1999); see also United States v.

Pacheco, 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.”). The term “felony” is also uniformly distinguished in the United

States Sentencing Guidelines in U.S.S.G. § 2L1.2 cmt. 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, it modifies another word and means a situation that is worse,

enhanced, or more severe in some manner. 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.’” United

States v. Pacheco, supra, at 157 (Straub, J., dissenting) (“Common sense and

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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.”).

Commonly understood terms mean what they appear to mean. See United

States v. Pacheco, supra, at 157 (Straub, J., dissenting) (“[I]t is a well-settled

maxim of statutory construction that ‘[w]here Congress uses terms that have

accumulated settled meaning under . . . the common law, a court must infer,

unless the statute otherwise dictates, that Congress means to incorporate the

established meaning of these terms.’” (emphasis added) (quoting 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 . . . .”).

In addition, courts routinely look to legislative history and canons of

construction to determine the meaning of statutory language, even when such

language, standing alone, may appear to be plain. INS v. Cardoza-Fonseca,

supra, at 432; see also id. at 448 (“‘If a court, employing traditional tools of

statutory construction, ascertains that Congress had an intention on the precise

question at issue, that intention is the law and must be given effect.’” (emphasis

added) (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., supra, at 843 n.9)). Reference to the statute and to legislative history

reflects Congress’ intent that subparagraph (A) cover only felony convictions.

Consequently, it is incorrect to say, as the dissent claims, that “[t]he majority

identifies no clear evidence that Congress has ever intended the term ‘felony’

to impose such a limiting construction.” Matter of Crammond, supra, at 35

(Grant, dissenting) (emphasis added).

I know of no rule of construction that requires Congress to have

affirmatively specified that in using the self-evident, commonly understood

word “felony,” it meant “only a felony offense,” and not offenses of all levels.

Put another way, I know of no rule of law or logic holding that the absence of a

particular designation means the presence of a different designation.1 “Not X”

does not mean “Y,” or even “possibly Y.” This is a classic logical fallacy.

We have acknowledged that “[o]ur task is not to improve on the statute or to

question the wisdom of it, but rather to interpret the language that was enacted

as law.” Matter of Campos-Torres, Interim Decision 3428, at 6 (BIA 2000)

(citing Richards v. United States, supra, at 10 (asserting that courts “are bound

to operate within the framework of the words chosen by Congress and not to

question the wisdom of the latter in the process of construction”)). As the

opinions of the majority and my concurring colleague note, even when Congress

amended the Act in 1990, 1994, and 1996 to expand the range of offenses

Incredibly, the dissent appears to attempt to invoke a “plain language” analysis to argue

in favor of such a conclusion. Matter of Crammond, supra, at 35-36 n.7 (Grant, dissenting);

see also id. at 37 (arguing that “the proper rule—that there is no overarching requirement

that a crime . . . under section 101(a)(43) be a felony—[is] inherent in the text of the

statute”); cf. Guerrero-Perez v. INS, 2001 WL 210186 (7th Cir. 2001).

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included within the aggravated felony definition, Congress did not amend the

term “aggravated felony” to a more generic term, such as “aggravated offense,”

or make systematic changes to how the term is used elsewhere in the Act. See

Matter of Crammond, supra, at 11; id. at 20 (Filppu, concurring); see also

United States v. Pacheco, supra, at 158 (Straub, J., dissenting).

The content of subparagraph (A) must be read together with the principal

phrase, “The term ‘aggravated felony’ means–,” as this term is applicable to all

subparagraphs in the section. Section 101(a)(43) of the Act.2 It is reasonable

to expect Congress to have revised the references to “aggravated felony” or

“such felon” if it intended to fundamentally alter the character of the term

“aggravated felony” so as to routinely include misdemeanor convictions.

Similarly, it is difficult to conceive of Congress using the word “aggravated”

other than to restrict the categories of felony offenses covered by the term

“aggravated felony.” Therefore, I conclude that Congress’ continued use of the

words “felony” and “aggravated” in the term “aggravated felony” is a powerful

indication that the term continues to refer to a certain category of

offenses—felony offenses.

B. Legislative History

Not only does the overall statutory language support the conclusion reached

by the majority, but relevant legislative history supports the conclusion that

Congress has consistently intended the term “aggravated felony” to refer to

felony convictions. See INS v. Cardoza-Fonseca, supra, at 432 n.12 (looking

to the statutory language and legislative history to determine whether a “‘clearly

expressed legislative intention’” requires questioning the strong presumption

that Congress expresses its intent through the language it chooses (quoting

Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980))). None of the amendments made to the Act since the term “aggravated

felony” was introduced have expressly modified the term, and no legislation has

altered a reasonable interpretation of the statutory language as reflecting

Congress’ intent that the covered offenses encompass only felony convictions.

Id.

For example, as early as 1993, Congressman Bill McCollum proposed

adding three additional substantive categories of “alien felons” to the definition

of aggravated felony. 139 Cong. Rec. E749-50 (1993) (emphasis added)

(proposing to add felons who have committed serious immigration-related

crimes, participated in serious criminal activities and enterprises, and

The suggestion of the United States Court of Appeals for the Seventh Circuit that

statutory language following the word “means,” in a provision defining terms used in the

statute, is not subject to further examination is not supported by the Supreme Court’s,

interpretation of other definitional provisions of the Act. See INS v. Cardoza-Fonseca,

supra (interpreting “the term ‘refugee’ means” at section 101(a)(42) of the Act); cf.

Guerrero-Perez v. INS, supra.

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committed serious white-collar crimes). At the same time, Congressman

McCollum proposed increasing penalties from 15 years to 20 years for

aggravated felons who reenter the United States. Id. As for “an alien convicted

of a felony other than an aggravated felony,” he proposed increasing the

maximum sentence to 10 years, and extending this penalty also to “aliens

convicted of three or more misdemeanors.” Id. (emphasis added).

In 1994, Congress expanded the aggravated felony definition to cover these

additional classes of “alien felons.” Immigration and Nationality Technical

Corrections Act of 1994, Pub. L. No. 103-416, § 222(a), 108 Stat. 4305, 4320.

Congress also enacted the increased penalties for illegal reentry after

deportation based on whether the prior deportation was subsequent to a

conviction for (1) an aggravated felony, (2) a felony other than an aggravated

felony, or (3) three or more misdemeanors. Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, § 130001(b), 108 Stat. 1796,

2023. The language and legislative history of these amendments show that

Congress used the term “aggravated felony” to identify a group of serious felony

offenses distinguishable from other felony offenses, and from misdemeanor

offenses.

Furthermore, major proponents of the 1996 criminal alien amendments to

the Act, such as Senator Spencer Abraham and Senator William Roth,

specifically referred to the proposed provisions in the IIRIRA as covering

“felonious acts,” “convicted felons,” and “serious felonies,” in addition to

“aggravated felonies” and “aggravated felons.” 142 Cong. Rec. S. 4598-4600

(1996). In a floor exchange 6 months later, Senator Hatch explained to Senator

Abraham that a partial restoration of discretionary relief to aliens who had not

been convicted of an aggravated felony was meant to alleviate earlier

restrictions in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 1214, which had eliminated former section 212(c)

relief “for virtually any alien who had been convicted of any crime, including

some misdemeanors.” 142 Cong. Rec. S12295 (1996) (emphasis added).

II. REASONABLE BOARD INTERPRETATION OF

AGGRAVATED FELONY

As I agree with the majority that we are only deciding the meaning of section

101(a)(43)(A) of the Act, I do not see the need to contrast subparagraph (A)

with any of the other subparagraphs in section 101(a)(43) in order to determine

its meaning.3 Perhaps the majority only means to support its conclusion that the

terminology in subparagraph (A) is ambiguous. Nevertheless, the majority’s

“[l]ooking beyond” subparagraph (A) to decisions addressing other

subparagraphs of section 101(a)(43) of the Act in the sentence enhancement

context suggests that it may view other paragraphs as encompassing

Notably, the majority expressly eschews interpreting the other subparagraphs of section

101(a)(43) of the Act in deciding the issue before us. Matter of Crammond, supra, at 10.

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misdemeanor convictions. See Matter of Crammond, supra, at 11; cf. id. at

35-36 (Grant, dissenting).

Even assuming that the majority draws no distinction between the language

in subparagraph (A) and other subparagraphs of section 101(a)(43) of the Act,

my concurring and dissenting colleagues exercise no such restraint. Both

presume that certain subparagraphs of section 101(a)(43) of the Act, such as

those referring to a sentence of “at least one year,” necessarily encompass

misdemeanor convictions. See, e.g., sections 101(a)(43)(F), (G) of the Act;

see also Matter of Crammond, supra, at 20 (Filppu, concurring) (referring to

“top-end” misdemeanors); id. at 33, 34 (Grant, dissenting).

I take issue with such conclusions, as there is no need to differentiate certain

other subparagraphs of section 101(a)(43) as encompassing misdemeanor

convictions in order to reach a reasonable interpretation of the scope of

subparagraph (A). See Matter of Devison, Interim Decision 3435, at 21 (BIA

2000, 2001) (“We decide those issues that lead to the resolution of the cases

before us.”). To do so improperly predetermines matters not at issue without

giving the interested parties notice or an opportunity to be heard on those issues.

See Matter of Perez, Interim Decision 3432 (BIA 2000) (limiting our holding

to matters at issue and avoiding matters not briefed or argued); see also Cohens

v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall, C.J.) (“It is a maxim

. . . that general expressions . . . are to be taken in connection with the case in

which those expressions are used. . . . [They] ought not to control the judgment

in a subsequent suit when the very point is presented for decision.”); Singh v.

INS, 213 F.3d 1050, 1053 (9th Cir. 2000) (criticizing the Board for applying a

new standard that went beyond the terms of the regulation without giving the

respondent notice or an opportunity to comply).

Although we are not deciding such issues today, the dissent raises some

points regarding the construction of other subparagraphs of section 101(a)(43)

of the Act that warrant a preliminary response. Principally, it is important to

note that there are alternate readings of the 1996 amendments to certain

subsections of the aggravated felony definition that are more than reasonable

—and more reasonable than the construction posited by the dissent. Simply put,

there is no reason to conclude that Congress meant for both misdemeanor and

felony convictions to be included in the “aggravated felony” definition simply

because Congress reduced the sentence requirement associated with felony

convictions covered in certain subparagraphs from 5 years to 1 year.

For example, merely because the amendment to section 101(a)(43)(G) of

the Act “‘[l]owers fine and imprisonment thresholds in the definition (from

5 years to 1 year . . .), thereby broadening the coverage of . . . theft . . . .’ S.Rep.

No. 249, 104th Cong., 1996 WL 180026,” does not mean that Congress

intended to include misdemeanors in that category. United States v. Graham,

supra, at 792 (alteration in original); see also section 101(a)(43)(F) of the Act

(imposing an imprisonment threshold of 1 year). In particular, section 162 of

Senate bill S. 1664 succinctly states: “Because of the expanded definition of

‘aggravated felony’ provided by sec. 161 of the bill, aliens who have been

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convicted of most felonies, if sentenced to at least 1 year in prison, will be

ineligible” for relief barred by conviction for an aggravated felony. S. 1664,

104th Cong., § 162 (1996) (emphasis added); S. Rep. No. 104-249, at 17

(1996); see also H.R. Conf. Rep. No. 104-828, at 223 (1996) (House recedes

to Senate amendment section 161). This language suggests that the Senate was

concerned only with the range of sentences that would make a felony conviction

an “aggravated felony.”4 There is no suggestion that crimes classified as

misdemeanors are to be transformed into “aggravated felonies” merely because

of the sentence imposed. As the Graham court emphasized, “There is no

evidence that Congress noticed that it was breaking the time-honored line

between felonies and misdemeanors.” United States v. Graham, supra, at 792.

My dissenting colleague completely misconstrues the import of our holding

in Matter of Davis, 20 I&N Dec. 536 (BIA 1992). It is not that we “had no

difficulty concluding that a misdemeanor offense was included within” the

scope of section 101(a)(43) of the Act. Matter of Crammond, supra, at 35

(Grant, dissenting) (citing Matter of Davis, supra). It is that in Davis, we found

that the statute required the conviction to be for a felony and adopted a federal

standard as to whether an offense is a felony regardless of the label used by the

state. In following this standard, some state misdemeanors have been treated as

felonies and some state felonies have been treated as misdemeanors. See

Matter of K-V-D-, Interim Decision 3422 (BIA 1999). In Davis, we found that

a state misdemeanor was an aggravated felony because it qualified under the

federal definition as a felony.

The question posited here is whether an offense that qualifies as a

misdemeanor according to a federal standard can be an aggravated felony. See

United States v. Pacheco, supra, at 158 (Straub, J., dissenting) (“If a felony is

a crime punishable by more than one year, how, then, can an ‘aggravated’

felony include crimes punishable by just one year?” (emphasis added)). I

could not agree more with Judge Straub’s view that “[t]o include misdemeanors

within the definition of ‘aggravated felony’ turns the plain meaning of the word

‘aggravated’ entirely on its head, since in addition to not being felonies in the

first place, misdemeanors are conventionally understood as being less severe

than felonies, as well.” Id.

It is entirely consistent with the meaning of the word “aggravated” and the

meaning of the word “felony” to conclude that Congress meant only for persons

who are convicted of a felony and sentenced for that felony to at least 1 year in

prison to be affected by the definition. As Judge Straub emphasizes, one would

never suggest that by adding the adjective “blue” to the noun “car,” one could be

Although the Graham court ultimately concluded that a conviction for theft in which the

sentence imposed is 1 year’s imprisonment amounts to an aggravated felony whether the

underlying crime is a misdemeanor or a felony, the court observed that “it is still possible for

a felon to avoid being an aggravated felon if he or she receives a six-month sentence for a

theft crime with a maximum possible sentence over one year.” United States v. Graham,

supra, at 792.

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attempting to define items that are not, in the first instance, cars. See United

States v. Pacheco, supra, at 157 (Straub, J., dissenting). It makes far more

sense to conclude that any felony conviction for murder, rape, or a crime

involving sexual abuse of a minor qualifies as an “aggravated felony” conviction,

even if the actual sentence imposed is less than 1 year. By contrast, it is

reasonable that in decreasing the maximum sentences from 5 years to 1 year for

offenses such as shoplifting or assault, Congress intended only for a felony

conviction in these categories that is serious enough to result in at least a 1-year

sentence to be classified as an aggravated felony conviction.5

The Board’s role is to interpret and apply the provisions of the Act narrowly,

not expansively. The edict of the Supreme Court in Fong Haw Tan v. Phelan,

333 U.S. 6 (1948), is no less applicable and no less binding today than it was 53

years ago when first pronounced: “We resolve the doubts in favor of that

[more narrow] construction because deportation is a drastic measure and at

times the equivalent of banishment or exile[.]” Id. at 10 (citing Delgadillo v.

Carmichael, 332 U.S. 388 (1947)). Thus, given a choice of constructions, we

are obliged to opt for the more narrow reading—the one that will less often

result in deportation or removal.

The Supreme Court in Fong Haw Tan v. Phelan, supra, did not reach this

conclusion as a last resort because the legislative history was unclear or because

application of the ordinary canons of construction failed to clarify the

ambiguities in the statutory language. See Matter of Crammond, supra, at 14;

id. at 19 (Filppu, concurring). Rather, the Court explained that

to construe this statutory provision less generously to the alien might find support in logic.

But since the stakes are considerable for the individual, we will not assume that

Congress meant to trench on his freedom beyond that which is required by the

narrowest of several possible meanings of the words used.

Fong Haw Tan v. Phelan, supra, at 10 (emphasis added); see also Costello v.

INS, 376 U.S. 120, 128 (1964) (“If, however, despite the impact of § 241(b)(2),

Despite the fact that United States Courts of Appeals for the Second, Third, Fourth, and

Eleventh Circuits have reached a different result than the one I posit here, I note that the

opinions of the Second and Third Circuits each addressed issues arising in criminal

prosecutions and involved the United States Sentencing Guidelines. See Matter of K-V-D-,

supra; see also United States v. Ibarra-Galindo, 206 F.3d 137 (9th Cir. 2000)

(differentiating a construction of the aggravated felony provision for purposes of sentence

enhancement). In addition, neither the opinion of the Third Circuit in United States v.

Graham, supra, which struggled with the seeming incongruence between the federal

definition of a felony under 18 U.S.C. § 3559 and the presumed aggravated felony definition

under the Act, nor that of the Second Circuit in United States v. Pacheco, supra, which

was subject to a comprehensive dissent, reflects a level of certainty that would foreclose

further discussion of the issue. I note, in addition, that the recent opinion of the Eleventh

Circuit in United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001), merely adopts the

position of the Graham court. See also Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000).

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it should still be thought that the language [of that section] and the absence of

legislative history continued to leave the matter in some doubt, we would

nonetheless be constrained by accepted principles of statutory construction in

this area of the law to resolve that doubt in favor of the petitioner.”). In other

words, the Court looked specifically to the nature of deportation statutes, and,

in light of the harsh consequences of deportation, specifically eschewed a

broader reading of the statutory language where more than one interpretation

might have been possible. Instead, the Court ruled that the most narrow

construction of the language used by Congress was the reading to be adopted in

interpreting deportation statutes.

This approach to interpreting deportation statutes has not been altered by the

Supreme Court’s intervening decisions in Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., supra, and its progeny. For example, in

interpreting the definitional term “refugee,” the Supreme Court considered both

the statutory language and the relevant legislative history and concluded that

“[w]e find these ordinary canons of statutory construction compelling, even

without regard to the longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the alien.” INS v. CardozaFonseca, supra, at 449 (citing INS v. Errico, 385 U.S. 214, 225 (1966);

Costello v. INS, supra, at 128; Fong Haw Tan v. Phelan, supra, at 10). Thus,

in interpreting a definitional section of the statute, the Court found not only that

the statutory language and legislative history adequately reflected congressional

intent, but acknowledged the narrow construction principle. See section

101(a)(42) of the Act.

We have recognized and applied this rule with approval in over 30 precedent

decisions issued since 1949. See, e.g., Matter of Farias, 21 I&N Dec. 269,

274 (BIA 1996; A.G., BIA 1997)); Matter of Tiwari, 19 I&N Dec. 875 (BIA

1989); Matter of Baker, 15 I&N Dec. 50 (BIA 1974); Matter of Andrade, 14

I&N Dec. 651 (BIA 1974); Matter of G-, 9 I&N Dec. 159 (BIA 1960); Matter

of K-, 3 I&N Dec. 575 (BIA 1949). In doing so, we have found consistently that

questions of deportability must be resolved in the alien’s favor. Matter of

Serna, 20 I&N Dec. 579, 586 (BIA 1992); Matter of Chartier, 16 I&N Dec.

284, 287 (BIA 1977) (expressing reluctance “to read implied restrictions into

the statute, particularly in the context of a deportation proceeding”).

The Court’s reference to the narrow construction principle in INS v.

Cardoza-Fonseca, supra, indicates that this principle is not a “last resort”

canon of construction, as my concurring colleague insists and as the majority

implies. See Matter of Crammond, supra, at 14; id. at 17 (Filppu, concurring).

Notably, neither the Fong Haw Tan v. Phelan Court nor any of the courts

subsequently invoking the narrow construction principle made any allusion to

the “rule of lenity,” a rule originating in criminal procedure. See Ladner v.

United States, 358 U.S. 169, 178 (1958) (“This policy of lenity means that the

Court will not interpret a federal criminal statute so as to increase the penalty

that it places on an individual when such an interpretation can be based on no

more than a guess as to what Congress intended.”). This is significant because

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the rule of lenity is applicable in only very limited situations.6 By contrast, the

narrow construction principle affords guidance to interpreting deportation

statutes from the beginning.

Although the Court did not find it necessary to invoke the narrow

construction principle in INS v. Cardoza-Fonseca, its acknowledgment that

statutory construction of the immigration provision in favor of the alien was

compelling “even without regard” to the principle reflects its view of the

principle as an interpretive guide rather than as a last resort. INS v. CardozaFonseca, supra, at 449. Similarly, in Matter of Vasquez-Muniz, Interim

Decision 3440, at 8, 11-12 n.7 (BIA 2000), even where we found the statutory

language “described in” to have an ordinary meaning in common usage, we

acknowledged the narrow construction principle. I reach the same conclusion

here: even putting aside the principle that we construe deportation statutes in

favor of the respondent, the ordinary canons of statutory interpretation provide

a compelling basis to conclude that the statutory language was intended to cover

only felony convictions.

Not too long ago, I invoked the words of the venerable President Abraham

Lincoln to illustrate the proposition that one cannot turn a thing into something

it is not. I quoted Abraham Lincoln as having once said, “If you call a tail a leg,

how many legs has a dog? Five? No; calling a tail a leg don't make it a leg.”

Bartlett’s Familiar Quotations 458 (Morley ed. 1951); see also Matter of

Nolasco, Interim Decision 3385, at 14-15 n.1 (BIA 1999) (Rosenberg,

concurring). Certainly, calling a conviction for a misdemeanor offense an

aggravated felony does not make it an aggravated felony. Accordingly, with

these additional considerations, I concur with the opinion of the majority.

DISSENTING OPINION: Edward R. Grant, Board Member, in which

Mary M. Dunne, Vice Chairman; Lori L. Scialabba, Vice Chairman;

Michael J. Heilman, Gerald S. Hurwitz, Patricia A. Cole, Lauren R.

Mathon, Philemina McNeill Jones, and Kevin A. Ohlson, Board

Members, joined

I respectfully dissent. The decision of the majority too narrowly limits the

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

The rule of lenity does not apply simply because a statute requires interpretation. See

Caron v. United States, 524 U.S. 308, 316 (1998) (stating that the rule is “not invoked by

a grammatical possibility”); Muscarello v. United States, 524 U.S. 125, 138 (1998) (stating

that the rule only applies if “‘after seizing everything from which aid can be derived,’ . . . we

can make ‘no more than a guess as to what Congress intended’” (quoting Reno v. Koray,

515 U.S. 50, 65 (1995) (quoting Smith v. United States, 508 U.S. 223, 239 (1993), and

Ladner v. United States, supra, at 178))). Thus, the rule of lenity is inapposite unless a

statutory ambiguity looms, and a statute is not ambiguous for this purpose simply because

some courts or commentators have questioned its proper interpretation. See Reno v.

Koray, supra, at 65.

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§ 1101(a)(43) (Supp. V 1999), by glossing over the contextual meaning of the

statute’s provisions, and is contrary to the holdings in several federal appellate

decisions. These decisions properly conclude that the term “aggravated felony”

is a term of art employed by Congress that encompasses both felonies and

misdemeanors. Indeed, in the very recent case ofGuerrero-Perez v. INS, 2001

WL 210186 (7th Cir. 2001), which is directly on point with the case before us,

the United States Court of Appeals for the Seventh Circuit found that a

misdemeanor conviction for criminal sexual abuse of a minor is an aggravated

felony under subparagraph(A) of section 101(a)(43). In light of these decisions,

and in light of the history and construction of the statute at issue, I would find

that the respondent’s conviction for a crime of sexual abuse of a minor is an

aggravated felony, regardless of whether it is classified by the state court as a

misdemeanor or a felony offense.

The term “aggravated felony” was first used in a much shorter version of

section 101(a)(43) of the Act in 1988. In 1996, Congress expanded the

aggravated felony definition in three significant ways: first, it expanded the list

of offenses that constitute aggravated felonies by specifically adding offenses

that were misdemeanor offenses under federal statutes;1 second, it trimmed

from 5 years to 1 year the threshold sentence upon which crimes of violence

and generic offenses such as theft and burglary may be considered aggravated

felonies (thus allowing certain misdemeanor offenses to be included based on

the sentence imposed);2 and third, it added categories of offenses—for example,

commercial bribery, counterfeiting, forgery, obstruction of justice, and

perjury—for which a sentence of 1 year in prison brings the offense within the

definition.3 See Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Division C of Pub. L. No. 104-208, §§ 321(a)(3), (4), 110 Stat. 3009

546, 3009-627 (“IIRIRA”); Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, §§ 440(e)(7), (8), 110 Stat. 1214, 1278

(“AEDPA”).

The Seventh Circuit recently held that Congress’ choice of the term to be

defined—aggravated felony—cannot trump the definition that Congress has

As amended, section 101(a)(43)(N) of the Act includes misdemeanor alien smuggling

convictions under section 274(a)(2) of the Act, 8 U.S.C. § 1324(a)(2) (1994 & Supp. V

1999), including first offenses under section 274(a)(2)(A), and only provides an exception for

those persons convicted of a first offense if the smuggling involved the alien’s spouse, child,

or parent. Thus, a person convicted of an alien smuggling first offense that does not involve

one of those specified family members has been convicted of an aggravated felony. See

Matter of Ruiz-Romero, Interim Decision 3376 (BIA 1999). In addition, section

101(a)(43)(O), as amended, provides that convictions under section 275(a) of the Act,

8 U.S.C. § 1325(a) (1994), which includes misdemeanor convictions for the first offense of

entry without inspection, are aggravated felony convictions if the alien was previously

deported as an aggravated felon.

See sections 101(a)(43)(F), (G) of the Act.

See sections 101(a)(43)(R), (S) of the Act.

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proceeded to assign to that term. Guerrero-Perez v. INS, supra, at *9. In doing

so, the court stated:

The structure of [section 101(a)(43)] reveals a desire on Congress’ part not to limit

aggravated felonies to only felony convictions. . . . The critical term in this section

of the statute [deportability] is “aggravated felony” and Congress could have

decided not to define this term, as it chose not to do so with regard to the term moral

turpitude. However, rather than leave the question of what constitutes an

aggravated felony open-ended, Congress said, “The term ‘aggravated felony’

means—. . .” and proceeded to list what crimes would be considered aggravated

felonies. It is important to note that the term aggravated felony is placed within

quotation marks and Congress then used the word “means” after this term. What

is evident from the setting aside of aggravated felony with quotation marks and the

use of the term “means” is that [section 101(a)(43)] serves as a definition section.

As a consequence, Congress had the option to use a variety of terms to reach the

crimes listed within [section 101(a)(43)]. . . . Congress had the discretion to use

whatever term it pleased and define the term as it deemed appropriate. See

Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 2615 (2000) (“When a statute

includes an explicit definition, we must follow that definition, even if it varies from

that term’s ordinary meaning.”). The statute functions like a dictionary, in that it

provides us with Congress’ definition of the term “aggravated felony.”

Id. (citation omitted). The Seventh Circuit thus rejected arguments identical to

those presented in this case—that a misdemeanor conviction for sexual abuse

of a minor cannot constitute a conviction for an “aggravated felony” because the

crime is not a felony under state law. The majority’s lean attempt to distinguish

Guerrero-Perez begs the question that is asked and answered in the text quoted

above: Congress’ choice of a term to be defined has no meaning beyond that

which is assigned by the subsequent definition, for “‘[a] definition which

declares what a term “means” . . . excludes any meaning that is not stated’.” Id.

(quoting Colautti v. Franklin, 439 U.S. 379, 393 n.10 (1979) (quoting 2A C.

Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp. 1978))).4

Other circuit courts of appeals have agreed that the term “aggravated felony”

is a definitional term of art, and that Congress is free to include any crime,

including misdemeanors, in that definition. See United States v. Christopher,

239 F.3d 1191, 1194 (11th Cir. 2001) (finding, in the sentence enhancement

context, “a clear intent in the statute to include as an ‘aggravated felony’ any

theft offense for which the term of imprisonment is at least one year” and

concluding that misdemeanors can qualify as aggravated felonies);United States

v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000) (finding, in the sentence

enhancement context, that the clear intent of Congress was to classify certain

misdemeanors as aggravated felonies, that the convictions were aggravated

The Supreme Court’s decision in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597,

2615 (2000), is particularly instructive here, for the Court rejected a state’s attempt to place

a narrowing (and saving) interpretation on a statutory provision by reference to the common

meaning of what that statutory provision defined.

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felonies under sections 101(a)(43)(F) and (G) of the Act, and that the “whole

act” rule of statutory construction favors this conclusion); Wireko v. Reno, 211

F.3d 833, 835 (4th Cir. 2000) (finding, in habeas corpus proceedings, that a

misdemeanor sexual battery offense was a crime of violence for which the alien

had been sentenced to 1 year in prison, and was an aggravated felony under

section 101(a)(43)(F) of the Act); United States v. Graham, 169 F.3d 787,

792-93 (3d Cir.) (concluding, in the sentence enhancement context, that

Congress was “defining a term of art, ‘aggravated felony,’ which in this case

includes certain misdemeanants who receive a sentence of one year” and that the

alien’s petit larceny conviction was for an aggravated felony under section

101(a)(43)(G) of the Act), cert. denied, 528 U.S. 845 (1999). All have rejected

the premise of the majority holding in this case—that the word felony in the

term “aggravated felony” places a limiting construction on any provision within

that definition.

The majority is quick to move from the language of the aggravated felony

definition itself to an attempt to discern the intent underlying the legislation.

A careful examination of the language used by Congress in this section,

however, allows us to interpret the meaning of the aggravated felony definition

through general principles of statutory construction. Section 101(a)(43) has

been, since its introduction into the Act, a single compound sentence listing a

variety of offenses, not all of which constituted felonies. The definition was

first enacted by section 7343 of the Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, 100 Stat. 4181, 4470 (“ADAA”), and included four categories of

offenses: murder; drug trafficking; illicit trafficking in firearms or destructive

devices; and any attempt or conspiracy “to commit any such act.”5 Section

501(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4798,

among other changes, added two new categories of offenses: money laundering

and crimes of violence, as defined in 18 U.S.C. § 16, for which the term of

imprisonment imposed was at least 5 years.

The aggravated felony definition was further amended by section 222(a) of

the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No.

103-416, 108 Stat. 4320 (“INTCA”), which completely revised section

101(a)(43) from a single paragraph listing the 5 general categories of offenses,

plus the “attempt and conspiracy” offenses, to a heterogenous compendium of

offenses catalogued in 15 subparagraphs.6 Although restructured, the offenses

Included in the original aggravated felony definition was the category of crimes “illicit

trafficking in any firearms or destructive devices,” which included no felony requirement,

either explicitly or by reference to a federal statute. Thus, that category could also

conceivably include offenses that are misdemeanors.

The INTCA added a category of firearms offenses under 18 U.S.C. § 922(n), which are

misdemeanors in that they are only punishable under 18 U.S.C. § 924(d) by forfeiture of the

goods. See section 101(a)(43)(E)(ii) of the Act. By this point in the history of section

101(a)(43), the original offenses included in the definition had been subsumed in just 4 of

(continued...)

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nevertheless remained a single sentence modified by the following introductory

phrase: “The term aggravated felony means— .”

The Supreme Court has recently concluded that it is improper to adopt a

construction of the text of a statute that attributes different meanings to the

same phrase within the same sentence. See Reno v. Bossier Parish Sch. Bd.,

528 U.S. 320, 329-30 (2000). The definition contained in section 101(a)(43)

is a single sentence that defines the term of art “aggravated felony.” Through the

various amendments over time, Congress has broadened the scope of the

definition and has included various categories of crimes within this definition,

both felonies and misdemeanors. Reading a felony limitation into the term

“aggravated felony” for some parts of the definition but not for others is

contrary to this principle of statutory construction. The term “aggravated

felony,” for our purposes, “means,” without limitation, any of the offenses listed

in the various subparagraphs of section 101(a)(43).

In 1992, prior to the more expansive amendments to the aggravated felony

definition contained in the INTCA and the 1996 amendments, the Board

examined a state misdemeanor “conspiracy” offense. Matter of Davis, 20 I&N

Dec. 536 (BIA 1992). There, the Board held that a state misdemeanor

conviction for conspiracy to distribute a controlled substance (cocaine) was an

aggravated felony conviction because the underlying substantive offense

constituted a “drug trafficking crime” under 18 U.S.C. § 924(c)(2). Id. at 545.

The Board rejected an Immigration Judge’s holding that the conspiracy offense

would qualify as an aggravated felony only if the elements of that offense were

analogous to the conspiracy provisions of the federal Controlled Substances

Act. Id. at 539, 544-45. While it is true, as noted by the concurring opinion of

Board Member Filppu, that this holding was premised on precedents dealing

with convictions for conspiracy to commit crimes involving moral turpitude, see

id. at 544-45, it is no less significant that the Board, in one of its first

precedents construing section 101(a)(43), had no difficulty concluding that a

misdemeanor offense was included within its scope.

The majority identifies no clear evidence that Congress has ever intended the

term “felony” to impose a limiting construction. Rather, it posits that such a

construction is possible due to the alleged “ambiguity” of a statute that uses the

term “felony,” but then lists myriad offenses, including ones which can be

prosecuted as misdemeanors.7 The reluctance to classify a particular offense

(...continued)

these 15 subparagraphs.

The concurrence of Board Member Filppu concludes, unlike the majority, that it was the

clear intent of Congress in originally enacting section 101(a)(43) to limit its scope to felony

offenses. Arguing from the “urtext” of the definition, which the concurrence asserts did not

specifically include misdemeanor offenses, as well as from the Act’s references to those

covered by the definition as “felons,” the concurrence concludes that this felony limitation

remains in force — but only for those subparagraphs of the current definition that do not

(continued...)

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as an aggravated felony—with all of the attendant consequences that the Act

imposes on an alien who has committed such an offense—may be

understandable, but it is inherently subjective. Notably, from the entire history

of judicial and administrative construction of this term, the majority cites no

case which finds the ambiguity it has discovered here. The majority cites as

evidence of “ambiguity” the fact that the Board has divided into four separate

opinions in this case. I submit that it is the lack of clarity in the majority’s

opinion, and not any ambiguity in the statute, which has so fractured the Board

on this occasion.

This lack of clarity is disturbing, and threatens great uncertainty in the

administrative jurisprudence. The majority appears to propose that the term

“aggravated felony” be given one meaning when applied to section

101(a)(43)(A) (i.e., that it be construed as a felony requirement), but that it be

attributed another meaning when applied to those subparagraphs that include

misdemeanor offenses, either explicitly or by reference (i.e., that it be

construed as making no such additional requirement due to the conflict with the

specific terms of the provision in question). Yet, on careful examination, the

majority stops short of a firm conclusion on this point. The majority

acknowledges a string of decisions by United States courts of appeals which find

that misdemeanor convictions can constitute aggravated felonies (all involving

offenses other than those listed in section 101(a)(43)(A) of the Act). It does

not, however, state its own agreement with this finding. Thus, the majority

decision not only improperly segregates subparagraph (A) from the rest of

section 101(a)(43), but clearly leaves open the possibility that it could construe

the term “aggravated felony” to impose a felony prerequisite with respect to all

crimes in the remaining subparagraphs of that section.

The majority thus leaves the Board on the horns of an untenable dilemma:

either it presages an ultimate determination that Congress, in enacting and

amending section 101(a)(43) of the Act, did not mean what it said when it

included offenses that may be prosecuted as misdemeanors; or it leads to a

future in which section 101(a)(43) will be interpreted by patchwork analysis, a

felony prerequisite applying to some offenses and not to others. The first

alternative is in derogation of the meaning of the Act. The second violates

principles of statutory construction, improperly adopting a construction of the

(...continued)

specifically list offenses that may be prosecuted as misdemeanors. As explained in the text,

such assignment of different meaning with the same sentence of the Act is impermissible as

a matter of statutory construction. The clear and unambiguous language of the current

statute relieves us of the need to rely on the unexpressed intent of Congress in enacting the

original version of section 101(a)(43), or to examine whether the subsequent amendments

are consistent with that “original intent.” Cf. Seatrain Shipbuilding Corp. v. Shell Oil Co.,

444 U.S. 572, 596 (1980) (providing that, while the views of subsequent Congresses cannot

override the unmistakable intent of the enacting one, such views are entitled to significant

weight when the precise intent of the enacting Congress is obscure).

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text that attributes different meanings to the same phrase within the same

sentence. The Supreme Court has rejected such statutory construction, and the

Board should do so as well. See Reno v. Bossier Parish Sch. Bd., supra.

The second alternative also carries the seeds of its own collapse. If there is

an overarching requirement, stemming from the phrase “aggravated felony,” that

certain listed offenses be felonies, that requirement should logically apply to

all listed offenses. The outcome of this decision, as adumbrated by the

concurring opinion of Board Member Rosenberg, could well lead to a

conclusion that no offense may be classified as an “aggravated felony” unless

that offense has been classified as a felony either by the convicting jurisdiction

or by reference to a federal standard. However much I disagree with that

outcome, it seems more logical than an approach that invests the phrase

“aggravated felony” with the power to limit the reach of the definition in certain

cases, e.g., convictions for sexual abuse of a minor, but not in others, e.g., a

crime of violence under 18 U.S.C. § 16(a). See sections 101(a)(43)(A), (F) of

the Act. Both sexual abuse of a minor and “§ 16(a)” crimes of violence can be

prosecuted as misdemeanors. The rule, it seems, should be consistent for both.

I find the proper rule—that there is no overarching requirement that a crime

listed or categorized under section 101(a)(43) be a felony—inherent in the text

of the statute. Without endorsing the majority’s analysis-in-isolation of

subparagraph (A), I note that this provision requires only that an offense be a

crime of “murder, rape, or sexual abuse of a minor” in order to constitute an

“aggravated felony.” The offenses of “rape” and “sexual abuse of a minor” were

added to subparagraph (A) by section 321 of the IIRIRA. See IIRIRA § 321, 110

Stat. at 3009-627. This provision contains no explicit requirement that the

offenses listed therein be felony offenses, nor reference to a federal statute

containing such a requirement. Although murder and rape were clearly felonies

under the common law, the textual proximity of “sexual abuse of a minor” in

section 101(a)(43) should not be used to infer that such is a requirement for any

crime listed in that subparagraph. We have already determined that the phrase

“sexual abuse of a minor” is to be given a broad reading, Matter of RodriguezRodriguez, Interim Decision 3411 (BIA 1999), and in doing so have recognized

the clear intent of Congress to impose severe immigration consequences on

aliens who commit offenses of this type. That is consistent with finding that

Congress intended to impose no “felony” limitation when it added this offense.

For these reasons, I would find that the new evidence the respondent seeks

to submit for consideration, indicating that his felony offense has been reduced

to a misdemeanor, is not material to our determination that his conviction was

for an aggravated felony within the meaning of section 101(a)(43)(A) of the Act.

I would find that his crime of sexual abuse of a minor is an aggravated felony

under subparagraph (A), regardless of whether it is classified as a misdemeanor

or a felony offense. Consequently, I would deny the motion to reopen.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.