(C)  Guiding Standards.  Where the BIA refuses to adopt a firm generic definition of an offense, it may sometimes at least point to a statute that may be used as a guide.  In Matter of Rodriguez-Rodriguez,[342] the BIA was faced with the task of determining whether a Texas felony conviction of indecency with a child in violation of Texas Penal Code § 21.11(a)(2) constituted an aggravated felony of sexual abuse of a minor.[343]  The minimum statutory elements of this offense could be satisfied if the perpetrator exposed himself before a child, even if there was no physical contact with the child.

 

            The Board held that since Congress did not refer to a particular criminal statutory definition of the term “sexual abuse of a minor,” the BIA was not obliged to adopt one either, and rejected application of the clear definition of sexual abuse of a minor contained in federal criminal law, which required physical contact between perpetrator and victim.[344]  The BIA preferred another, broader federal statutory definition of sexual abuse of a minor adopted not as the definition of a criminal offense, but in the context of offering protection to child witnesses, which did not require physical contact.[345]  Even this specific standard, however, was not adopted as the definition of the aggravated felony term: “We are not adopting this statute as a definitive standard or definition but invoke it as a guide in identifying the types of crimes we would consider to be sexual abuse of a minor.”[346]

 

            In this 9-8 en banc decision, four of the dissenters believed the strict federal criminal definition should be adopted, and the other four felt a case-by-case approach should be used, but that the elements established in this non-contact offense did not arise to the level necessary to amount to an aggravated felony as sexual abuse of a minor.

 

            If the Board declines to create a generic definition of aggravated felonies, it still must carefully consider on a case-by-case basis whether a state offense meets the generally-held definition of the offense listed in the aggravated felony statute.  In this consideration the Board should consult and cite authoritative criminal law sources. 

 

[342] Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999) (en banc).

[343] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

[344] 18 U.S.C. § 2246.

[345] 18 U.S.C. § 3509(a).

[346] Matter of Rodriguez-Rodriguez, supra, 22 I. & N. Dec. at 996.

BIA

AGGRAVATED FELONY - GENERIC DEFINITION - BIA DUTY TO FILL IN AMBIGUITIES IN CONGRESSIONAL INTENT
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("If that language constitutes a plain expression of congressional intent, it must be given effect. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 842-43. When Congress's intent is not plainly expressed, however, it is our duty to resolve any ambiguities and fill any statutory gaps in a reasonable manner, at least insofar as they pertain to portions of the statute that fall within the scope of our expertise. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-33 (1999) (following Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843-44). In doing so, we bear in mind that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).").

Sixth Circuit

AGGRAVATED FELONY - GENERIC DEFINITION
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) ("Negrete is arguing that defined in and described in are synonymous. We reject this argument, primarily because it renders the distinction between the terms described in and defined in meaningless. See United States v. Michalek, 54 F.3d 325, 335-36 (7th Cir. 1995). Also, it does not follow that, because Congress has defined some crimes in general terms, it had to define all crimes in general terms in order for the offense's state law counterpart to be included within the definition of an aggravated felony. Indeed, many firearms offenses are not susceptible to being easily described in general terms, see, e.g., 18 U.S.C. 922(g)(4) (offense of possession of a firearm or ammunition by someone who has been adjudicated as a mental defective or who has been committed to a mental institution); while others are dependent on other provisions in a statutory scheme. See, e.g., 18 U.S.C. 922(o) (making it unlawful for a person to possess a "machinegun," where that term is defined elsewhere in the National Firearms Act). Congress could therefore rationally have decided to describe those offenses by reference to the statutory provision where they were located rather than conjuring up an awkward general descriptor, or having to recopy several parts of a statutory scheme.").

Ninth Circuit

AGGRAVATED FELONY - DEFINITION OF AGGRAVATED FELONY - WHERE THE AGGRAVATED FELONY DEFINITION CONTAINS A PHRASE CONGRESS HAS DEFINED UNDER FEDERAL CRIMINA LAW, THE COURT WILL FIRST LOOK TO THAT FEDERAL DEFINITION IN DEFINING THE PHRASE
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (where the aggravated felony definition uses a phrase used elsewhere in federal law, the court will first look at a statute defining that phrase as a federal criminal offense).