Immigrants should receive the benefit of all reasonable doubts, both of fact and law, as to whether the government has satisfactorily shown them to be deportable, because of their status as immigrants and the drastic, penal consequences of deportation.

 

            The United States Supreme Court has reaffirmed this core principle of immigration law in Leocal v. Ashcroft, [69] in which it unanimously concluded that a Florida conviction of driving under the influence causing serious bodily injury,[70]  did not constitute an aggravated felony as a crime of violence,[71] for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of use of force in the commission of the offense under 18 U.S.C. § 16(a) or (b).  The Court, citing United States v. Thompson/Center Arms Co.,[72] applied the criminal rule of lenity, that all reasonable doubts favor the defendant, in the immigration context, to the extent that a court handling an immigration case must interpret a criminal statute.[73]  This decision unanimously reaffirmed the rule of lenity as applied to interpretation of immigration deportation statutes.

 

            Mr. Justice Douglas, speaking for a unanimous court in reversing a decision of the Court of Appeals for the Ninth Circuit, in another deportation case, said:

                

We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10 (92 L.Ed. 17).  It is the forfeiture for misconduct of a residence in this country.  Such a forfeiture is a penalty.  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.[74]

 

Reiterating this principle, Chief Justice Warren has written, “Although not penal in character, deportation statutes as a practical matter may inflict ‘the equivalent of banishment or exile,’ . . . and should be strictly construed.”[75]  The Court of Appeal for the Ninth Circuit expressed awareness of this principle in Garcia‑Gonzales, saying, “We are aware, too, that matters of doubt should be resolved in favor of the alien in deportation proceedings, because of the severity of the remedy invoked.”[76]

[69] Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 73 USLW 4001 (November 9, 2004).

[70] Florida Stats. Ann. § 316.193(3)(c).

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

[72] United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518 (1992) (applying rule of lenity to a tax statute, in a civil setting, where the statute had criminal applications and thus had to be interpreted consistently with its criminal applications).

[73] Id., at 384 n. 8. 

[74] Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376 (1948).

[75] Barder v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825 (1954).

[76] Garcia‑Gonzales  v. INS, 344 F.2d 804 (9th Cir. 1965).

STATUTORY INTERPRETATION - RULE OF LENITY - AMBIGUITIES SHOULD BE INTERPRETED IN FAVOR OF THE IMMIGRANT
Carachuri-Rosendo v. Holder, 130 S.Ct 2577 (Jun. 14, 2010) ("Finally, as we noted in Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), ambiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen's favor. And here the critical language appears in a criminal statute, 18 U.S.C. 924(c)(2).")

STATUTORY INTERPRETATION - RULE OF LENITY
United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079 (Feb. 24, 2009) ("'[T]he touchstone of the rule of lenity is statutory ambiguity.' Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (internal quotation marks omitted). We apply the rule 'only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.' United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). Section 921(a)(33)(A)'s definition of 'misdemeanor crime of domestic violence,' we acknowledge, is not a model of the careful drafter's art. See Barnes, 295 F.3d, at 1356. But neither is it 'grievous[ly] ambigu[ous].' Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974). The text, context, purpose, and what little there is of drafting history all point in the same direction . . . .").

STATUTORY INTERPRETATION - RULE OF LENITY - LIMITATION TO AMBIGUOUS STATUTES
Burgess v. United States, ___ U.S. ___, ___ (Apr. 16, 2008) ("Burgess urges us to apply the rule of lenity in determining whether the term "felony drug offense" incorporates [21 U.S.C.] 802(13)'s definition of "felony." "[T]he touchstone of the rule of lenity is statutory ambiguity." Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (internal quotation marks omitted). "The rule comes into operation at the end of the process of construing what Congress has expressed," Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961), and "applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute," United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). Here, Congress expressly defined the term "felony drug offense." The definition is coherent, complete, and by all signs exclusive. Accordingly, there is no ambiguity for the rule of lenity to resolve.").

Second Circuit

NATURE OF CONVICTION - RULE OF LENITY
Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) ("The rule of lenity, however, "only comes into play when a court after looking at all aids to legislative meaning can do no more than guess as to what Congress intended." United States v. Cullen, 499 F.3d 157, 164 (2d Cir. 2007) (quoting Muscarello v. United States, 524 U.S. 125, 138 (1998)). See also United States v. Hescorp,Heavy Equip. Sales Corp., 801 F.2d 70, 77 (2d Cir. 1986) (noting that the rule of lenity "is a doctrine of last resort, to be used only after the traditional means of interpreting authoritative texts have failed to dispel any ambiguities"). Because we have already determined that the plain meaning of the statute precludes Puellos interpretation, we need not resort to the rule of lenity.").

Fifth Circuit

STATUTORY INTERPRETATION
Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Section 16 has both criminal and noncriminal applications, and thus, the rule of lenity applies. We therefore are constrained to interpret any ambiguity in the statute in [Rodriguez's] favor.) (footnotes omitted); quoting Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

STATUTORY INTERPRETATION -- RULE OF LENITY
Martinez v. Mukasey, 519 F.3d 532 (5th Cir. Mar. 11, 2008) ("Here, defining "admitted", as used in 212(h), to exclude adjustment to LPR status subsequent to entry, as was done by Martinez, is bolstered by the "longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien". Cardoza-Fonseca, 480 U.S. at 449, 107 S.Ct. 1207 (citations omitted). This canon of construction, comparable to the rule of lenity in criminal cases, is based on the drastic nature of removal. "We will not assume that Congress meant to trench on [the alien's] freedom beyond that which is required by the narrowest of several possible meanings of the words used." Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948). Therefore, this rule of narrow construction provides an additional basis to construe 212(h) in favor of Martinez being able to seek a waiver of inadmissibility.").

RULE OF LENITY
United States v. Orellana, ___ F.3d ___ , 2005 U.S. App. LEXIS 5436 (5th Cir. April 5, 2005) ("Because we conclude that it is uncertain whether Congress intended to criminalize the possession of firearms by aliens in receipt of lawful temporary protected status, we apply the rule of lenity and reverse.").  

Ninth Circuit

STATUTORY INTERPRETATION - RULE OF LENITY
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) ("We would add, however, that if we were to view the statute as ambiguous, we would think it our duty to resolve the ambiguity favorably to the alien, pursuant to the principle of lenity applicable with respect to the gravity of removal. See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Lara-Cazares v. Gonzales, 408 F.3d 1217, 1221 (9th Cir.2005). Removal is a harsh sanction, and profoundly so when, as here, the alien came to America as a small child and has spent almost two decades in this country.").

Tenth Circuit

CONVICTION - FINALITY - ILLEGAL REENTRY CONTEXT
United States v. Saenz-Gomez, 472 F.3d 791 (10th Cir. Jan. 2, 2007) (rejecting claim that district court erred in enhancing sentence under 8 U.S.C. 1326(b)(2) and U.S.S.G. 2L1.2(b)(1)(B) because his 2003 state conviction for heroin trafficking was not final at the time of removal, and affirming sentence for illegal reentry after removal following a conviction for an aggravated felony). http://laws.lp.findlaw.com/10th/062148.html

Eleventh Circuit

ANALYSIS - CONFLICTING REGULATIONS SHOULD BE RESOLVED IN FAVOR OF FOREIGN NATIONAL
Esponda v. U.S. Atty Gen., __ F.3d __ (11th Cir. Jun. 28, 2006) (conflicting regulations should be resolved in the alien's favor). http://caselaw.lp.findlaw.com/data2/circs/11th/0513875p.pdf

Other

RULE OF LENITY
The rule of lenity applies in criminal proceedings, while the "rule of narrow construction" applies in immigration proceedings. Each relates to construction of statutory provisions, and applies at different stages of the proceedings. See Benefit of the Lori Rosenberg, Doubt: The Survival of the Principle of Narrow Construction and its Current Applications, 8 BENDER'S IMMIGR. BULL. 1553 (Oct. 1, 2003).

STATUTORY INTERPRETATION - RULE OF LENITY -- BIBLIOGRAPHY
Rosenberg, Benefit Of The Doubt: The Survival Of The Principle Of Narrow Construction And Its Current Applications, 8 BENDER'S IMMIGR. BULL. 1553 (2003).