Some of the aggravated felony sections include the phrase “relating to.”[348]  For example, INA § 101(a)(43)(R) defines aggravated felony to include “an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification number of which have been altered for which the term of imprisonment is at least one year.” (Emphasis supplied.)  This “relating to” language sometimes appears where the definition is not by reference to a federal statute, but also frequently appears in parentheticals, describing aggravated felonies defined by federal statute.[349]  See discussion in § 4.38, infra.  The courts generally construe the “relating to” language broadly, but there are some limits.

 

            The Ninth Circuit held that a conviction under 18 U.S.C. § 472 for felony possession of counterfeit U.S. obligations is an aggravated felony as an offense “relating to . . . counterfeiting.”[350]  While possession of a counterfeit instrument is not the same act as counterfeiting (manufacturing or altering) one, the court stated that the phrase “relating to” means that the aggravated felony definition “necessarily covers a range of activities beyond those of counterfeiting or forgery itself.”  The federal statutory definition of counterfeiting at 18 U.S.C. § 471 punishes anyone who “with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States.”  The court noted that to be guilty of a violation of 18 U.S.C. § 472, the offense at issue, the defendant had to have passed or possessed the bill knowing it was counterfeit and intending to defraud.  It found that the “requisite knowledge and intent to defraud was sufficient to make a conviction under 18 U.S.C. § 472 one that is ‘related to’ the act of counterfeiting itself.”[351]

 

            In Luu-Le v. INS, the Ninth Circuit found that an Arizona conviction for possession of paraphernalia was “related to” a controlled substances offense because that statute “is plainly intended to criminalize behavior involving the production or use of drugs . . . .  The statute makes abundantly clear that an object is not drug paraphernalia unless it is in some way linked to drugs.”[352]

 

            On the other hand the Ninth Circuit found, in Lara-Chacon v. Ashcroft,[353] that a conviction for conspiracy to commit money laundering, in violation of Arizona law, was not an offense “related to” a controlled substances, even though the offense in fact involved proceeds from drug trafficking, and even though the Arizona definition of money laundering included proceeds derived from controlled substances.[354]  The court found that the money laundering statute described a crime distinct from controlled substances, because the conviction does not require any proof of the underlying offense.  “Because racketeering statutes are not intended to be a vehicle to redress aliens’ controlled substance violations, the Arizona statute does not qualify as one ‘relating to’ a controlled substance.”[355]

 

            In the context of non-substantive offenses, the Ninth Circuit limited the “related to” language “where to read it broadly would render meaningless other words in the statutory language.”[356]  To read the “related to” language in the definition of offenses relating to failure to appear,[357] for example, to include aiding and abetting offenses would render meaningless the “conspiracy or attempt” language applicable to all aggravated felonies,[358] since conspiracy or attempt to commit an aggravated felony offense would certainly be “related to” the aggravated felony offense as well.  If the generic offenses of conspiracy and attempt were automatically included as offenses “related to” an aggravated felony offense, there would have been no need for Congress specifically to add to the aggravated felony ground of deportation the language “an attempt or conspiracy to commit an offense described in this paragraph.”[359]

           

            If faced with “relating to” language in a specific ground of removal, counsel is advised to look for cases that define the “related to” language as it has been applied to that specific ground.  Beyond that, however, if the government is arguing the "relating to" language within a parenthetical in the definition means Congress intended to sweep more broadly than the words of the non-parenthetical statute denote, counsel can argue Congress meant no such thing; Congress was merely giving a meaningless parenthetical label to the statute listed in the aggravated felony definition, and cite the cases that hold the parenthetical language does not restrict or limit the meaning of the statute.  If the parenthetical cannot restrict, it cannot enlarge the meaning of the statute.  See § 4.38, infra.

[348] See INA § § 101(a)(43)(K)(i), (Q), (S), (T), 8 U.S.C. § § 1101(a)(43)(K)(i), (Q), (S), (T)

[349] This language also appears in other grounds of removal, such as INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substances conviction).  The analysis should be the same regardless of the ground involved.

[350] Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000).  See also Richards v. Ashcroft, 400 F.3d 125 (2d Cir. Mar. 3, 2005) (Connecticut conviction of possession of a forged document with intent to defraud, deceive, or injure, in violation of Conn. Gen. Stat. § 53a-139, is “an offense relating to ... forgery” within the meaning of INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), and is therefore an aggravated felony for deportation purposes under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)).

[351] Id. at 1073.

[352] Luu-Le v. INS, 224 F.3d 911, 915 (9th Cir. Aug. 3, 2000).

[353] 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 contituted 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).

[354] Lara-Chacon v. Ashcroft, supra, 345 F.3d at 1155.

[355] Id. at 1156.

[356] Luu-Le v. INS, 224 F.3d 911, 916 (9th Cir. 2000), citing Leyva-Licea, supra, and Coronado-Durazo, supra.

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

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

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

BIA

AGGRAVATED FELONY " FIREARMS OFFENSES " UNLAWFUL POSSESSION OF AMMUNITION BY CONVICTED FELON " RELATING TO
Matter of Oppedisano, 26 I. & N. Dec. 202 (BIA 2013) (federal conviction of unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. 922(g), is an aggravated felony for immigration purposes; the relating to language used in the Act is does not limit the scope of the statute). http://www.justice.gov/eoir/vll/intdec/vol26/3793.pdf

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

Fifth Circuit

CONVICTION - EFFECT OF STATE LAW ON FEDERAL IMMIGRATION DECISION - IMMIGRATION CONSEQUENCES OF CONVICTIONS ARE QUESTIONS OF FEDERAL, NOT STATE, LAW
United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (federal sentence effect of state conviction is a question of federal, not state law, holding Full Faith and Credit Act, 28 U.S.C. 1738, did not require federal sentencing court to follow state law on whether it constituted a conviction to enhance a federal sentence); see United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase "have become final" in 18 U.S.C. 841(b)(1)(B) is a question of federal law, not state law).

Sixth Circuit

AGGRAVATED FELONY - "RELATING TO" LANGUAGE HAS A BROAD REACH
Nwagbo v. Holder, 571 F.3d 508, 511 (6th Cir. Jul. 13, 2009) ("'[s]ection 101(a)(43)(R) [of the INA] necessarily covers a range of activities beyond those of counterfeiting or forgery itself.' (Citation omitted.) To limit that section to cases of actual counterfeiting would be to read the phrase "relating to" out of the statute."); citing Albillo-Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir. 2000) (the "requisite knowledge and intent to defraud is sufficient to make a conviction under 18 U.S.C. 472 one that is related to the act of counterfeiting itself"); see also See Kamagate v. Ashcroft, 385 F.3d 144, 154 (2d Cir. 2004) ("the requirement that the security at issue ... be counterfeit coupled with the element of deceitful intent suffice" to make uttering or possessing counterfeit securities, in violation of 18 U.S.C. 513(a), an offense "related to" counterfeiting); Park v. Att'y Gen., 472 F.3d 66, 72 (3d Cir. 2006) ("Considering the broad reach of the term relating to, certainly [18 U.S.C. 2320,] which prohibits the knowing use of a counterfeit mark ... codifies an offense related to counterfeiting").

Seventh Circuit

STATUTORY CONSTRUCTION - DESCRIBED IN
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.").

Eighth Circuit

AGGRAVATED FELONY - FORGERY - PHRASE "RELATING TO" BROADENS SCOPE OF FORGERY DEFINITION
United States v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. May 29, 2008) ("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).

AGGRAVATED FELONY - PHRASE "RELATING TO"
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).

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

NATURE OF CONVICTION - "RELATING TO"
United States v. Sinerius, __ F.3d __, 2007 WL 2728760 (9th Cir. Sept. 20, 2007) ("The phrase relating to, as defined by the Supreme Court, means to stand in some relation to; to have bearing or concern; to pertain; refer; to bring into association with or connection with. Morales v. Trans World Airlines, 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting Black's Law Dictionary 1128 (5th ed.1979)) (construing relating to in a different statutory context). We have construed relating to language broadly in the past, see Luu-Le v. INS, 224 F.3d 911, 915-16 (interpreting the phrase relating to a controlled substance in section 241(a)(2)(B)(i) of the Immigration and Nationality Act), and the Fifth, Eighth, and Tenth Circuits have done the same when interpreting this provision and the materially indistinguishable text of 2252, see Hubbard, 480 F.3d at 347 (We must assume that Congress chose the words relating to [in 2252A(b)(1) ] for a purpose.); United States v. Weis, 487 F.3d 1148, 1152 (8th Cir.2007) (construing relating to broadly in 2252); United States v. McCutchen, 419 F.3d 1122, 1127 (10th Cir.2005) (same).").