Safe Havens

 

(B)  The Limiting Effect of Parentheticals.  It is possible to argue that an offense, falling within the statute specifically listed in an aggravated felony category, is not included within the category if it falls outside the limiting language of a parenthetical describing the offenses within the statute that are included in the definition.  If this argument is accepted, such a conviction would constitute a partial safe haven with respect to that aggravated felony category.

 

            In assessing whether the immigration authorities will consider a specific offense to fall within an aggravated felony definition, obviously the words of the statute are a prime consideration.  A number of the aggravated felony definitions are of the form, “an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) . . . .”[134]  This raises the question whether Congress meant to restrict the aggravated felony definition to only those specific offenses, falling within the statute, that involved money laundering, on the one hand; or meant to include all offenses whatsoever falling within the statute, even if they were not “relating to laundering of monetary instruments,” and used the parenthetical label only as a general aid to the reader indicating the general nature of the statute listed in the definition.

 

            The argument that Congress meant what it said, and that each word counts, is much stronger than has been recognized in the judicial decisions.  Consider the disclosure of sensitive information aggravated felony category that includes in the definition:

 

(L) an offense described in--

. . .

(ii) section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); or

(iii) section 421 of Title 50 (relating to protecting the identity of undercover agents);[135]

Congress obviously meant every word in these parentheticals to have significance, since it referred to the same statute, with two parentheticals listing different types of agents.  It is impossible for Congress to have meant the parenthetical just to be a label for the statute, or it would not have needed to include two separate subdivisions each referring to a different portion of the same statute.

 

            The BIA held that the wording of at least some of the parentheticals included in the aggravated felony definition does not restrict the definition of included offenses.  Therefore, a conviction of transportation of undocumented noncitizens within the United States[136] constituted an aggravated felony, even though there was no alien smuggling in the traditional sense of transportation of noncitizens across a border.[137]  

 

            This decision, in dictum, explicitly refers to other parentheticals in the aggravated felony definition statute, such as “relating to child pornography,”[138] and therefore suggests that the Board may ignore the meaning of the words used in other parentheticals throughout the statute.[139]

 

            The Board fails to explain why it considers some parentheticals, such as “(relating to alien smuggling)” in (N) to be meaningless surplusage in the statute, whereas others, such as “(as defined in section 102 of the Controlled Substances Act)” in (B) must obviously be given their full significance.[140]  In these latter cases, Congress obviously meant the language in parentheses to be given its full effect.  No reason appears in the Board’s decision why this should not also be true for parentheticals like “(relating to alien smuggling)”.  See also the dissent by Board Member Rosenberg, detailing the canons of statutory construction violated by the Board’s interpretation of the statute.

The federal courts generally agree that a conviction of harboring constitutes an aggravated felony, despite the parenthetical.[141]  In at least one unpublished decision, the BIA distinguished “(relating to alien smuggling)” from another “relating to” parenthetical in a deportation ground and held that the second phrase did limit the definition of the offense.[142]

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

[135] INA § § 101(a)(43)(L)(ii), (iii), 8 U.S.C. § § 1101(a)(43)(L)(ii), (iii) (emphasis supplied).

[136] INA § 274(a)(1)(A)(ii), 8 U.S.C. § 1324(a)(1)(A)(ii).

[137] Matter of Ruiz-Romero, 22 I. & N. Dec. 486 (BIA 1999).

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

[139] See INA § § 101, 8 U.S.C. § § 1101(a)(43)(B), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), (M), (N), (P), and the unnumbered second-to-last paragraph of the subsection.

[140] See also “a crime of violence (as defined in section 16 of title 18 of United States Code, but not including a purely political offense)” in (F), “a theft offense (including receipt of stolen property)” in (G), “an offense described in section 1084 (if it is a second or subsequent offense)” in (J), “for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 12 months” in (P), and “Notwithstanding any other provision of law (including any effective date)” in the second-to-last paragraph of 8 U.S.C. § 1101(a)(43).

[141] Patel v. Ashcroft, 294 F.3d 465 (3d Cir. June 20, 2002) (conviction of harboring an alien in violation of INA § 274(a)(1)(A)(iii), 8 U.S.C. § 1324(a)(1)(A)(iii), constituted an aggravated felony, because “the parenthetical ‘relating to alien smuggling’” in INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N) is descriptive and not restrictive.  The phrase is nothing more than a short-hand description of all of the offenses listed in INA § 274(a)(1)(A), 8 U.S.C. § 1324(a)(1)(A).  Congress did not intend it to be a substantive restriction limiting which of the several offenses specified in § 274(a)(1)(A) applies to § 101(a)(43)(N)), accord Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. 2002); Castro-Espinosa v. Ashcroft, 257 F.3d 1130 (9th Cir. 2001); United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001); United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir. 2001); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000); United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. 1999). But see Gavilan-Cuate v. Yetter, 94 F.Supp.2d 1039 (D.C.Minn. 2000) (conviction of transporting is not an aggravated felony).

[142] In an unpublished opinion, the Board found that the parenthetical phrase “relating to fraud and misuse of visas, permits and other entry documents” in the deportation ground INA § 237(a)(3)(A)(iii), 8 U.S.C. § 1227(a)(3)(A)(iii) (based on conviction of certain document fraud offenses) was limiting and was not merely descriptive.  Matter of VG, A92 593 325 (BIA 3/22/99).  It distinguished Matter of Ruiz-Romero by stating that (a) because this was a deportation ground and not an aggravated felony, it was less possible to assume that the language was merely descriptive, and (b) the actual parenthetical language had its origins in the heading of the offense prior to a 1986 amendment, yet the parenthetical language in the deportation ground was not changed when the heading of the offense was changed in 1986.  The BIA cannot presume that this was an oversight.  See further discussion in K. BRADY, California Criminal Law And Immigration § 6.8 (2004).  In considering appellate arguments, see in particular the extensive dissent in Ruiz-Romero by Board Member Rosenberg.