Article, Breadth and Narrowness of the Phrase "Relating to" in Removal Grounds



     In United States v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. May 29, 2008), the Eighth Circuit held that Iowa conviction for possession of false document required to legally enter, remain, or work in this country with intent to perpetrate fraud or with knowledge that possession was facilitating fraud, in violation of Iowa Code 715A.2(1)(d) and 715A.2(2)(a)(4), was an "offense related to forgery" aggravated felony under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R), for purposes of imposing an eight-level sentencing enhancement under USSG 2L1.2(b)(1)(C) for illegal reentry after deportation. In doing so, it stated:



The words "relating to" make it apparent that many crimes that are not specifically listed in 8 U.S.C. 1101(a)(43)(R) will constitute an aggravated felony as long as they are related to the crimes listed."), citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992); Richards v. Ashcroft, 400 F.3d 125, 129 (2d Cir. 2005). Id. at ___.



     The phrase "relating to" occurs in a number of grounds of removal, including in many aggravated felony definitions. See N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 4.37 n.349 (2006). Most of the time, it occurs within parentheses. For example, in the ransom offense aggravated felony definition, the statute lists "an offense described in [18 U.S.C. 875, etc.] (relating to the demand for or receipt of ransom". INA 101(a)(43)(H), 8 U.S.C. 1101(a)(43)(H). The majority rule, however, is that language in parentheticals was included by Congress as a handy label, rather than as operative language limiting the meaning of the aggravated felony definition. See N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 4.38 (2006). If the parenthetical language cannot restrict the scope of the definition, it cannot expand it. There is a strong argument, therefore, that the phrase "relating to" does not expand the sweep of those aggravated felony definitions included within parentheticals.



     If there is any reasonable doubt on this point, the rule of lenity or doctrine of strict construction in removal cases should require the court to come down in favor of the noncitizen. See 4.41, infra. See also Rosenberg, Benefit Of The Doubt: The Survival Of The Principle Of Narrow Construction And Its Current Applications, 8 BENDER'S IMMIGR. BULL. 1553 (2003).



     The only removal grounds, therefore, in which the argument that the phrase "relating to" expands the definition has force are those in which the phrase does not occur within parentheses. This includes both the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and the controlled substances ground of deportation. INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i). It also includes the following aggravated felony definitions contained in INA 101(a)(43), 8 U.S.C. 1101(a)(43):



     (K) "an offense that - (i) relates to the owning, controlling, managing, or supervising of a prostitution business;"



     (Q) "an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;"



     (R) "an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;"



     (S) "an offense relating to obstruction of justice, perjury or suborniation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;" and



     (T) "an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed . . . ."



     It is also possible to argue, in some cases, that the phrase "relating to" has limits if to interpret it broadly would render other language in the statute meaningless. See N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 367 (2006). In addition, some courts have found that a statute contained in a different area of the law does not "relate to" a controlled substance because it was not intended to address controlled substances offenses. See Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003). See also Castaneda de Esper v. INS, 557 F.2d 79, 83-84 (6th Cir. 1977) (false imprisonment not "related to" a controlled substance offense); Matter of Carrillo, 16 I. & N. Dec. 625, 626 (BIA 1978) ("[W]hen a criminal statute does not by its language indicate [that] it was contemplated to be a narcotic law and historically has constituted a criminal offense separate and distinct from the [underlying] felony, such a statute is not a law relating to [a controlled substance].") (internal citations and quotations omitted).