Criminal Defense of Immigrants


§ 16.36 (A)

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(A)  Generally.  Some grounds of removal include the phrase “relating to.”[406]  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.  See discussion in § 16.37, 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.”[407]  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.”[408]


                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.”[409] 


                On the other hand the Ninth Circuit found, in Lara-Chacon v. Ashcroft,[410] that a conviction for conspiracy to commit money laundering, in violation of Arizona law, was not an offense “related to” a controlled substance, even though the offense in fact involved proceeds from drug trafficking, and even though the Arizona definition of money laundering included proceeds derived from sale of controlled substances.[411]  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.”[412]


                The BIA has similarly held that a federal conviction for unlawfully carrying a firearm during commission of a felony was not “related to” a drug offense even when the underlying drug felony was identified in the record of conviction.  The BIA noted that the firearms offense was “not by its terms a ‘narcotics law’” and could be based on any felonious act.  It held “[t]herefore, notwithstanding the fact that the underlying felony may, in a particular case, be a narcotic-related offense, we find that 18 USC 924(c) itself is not” a law relating to a controlled substance.[413]

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 § 16.37, infra.

[406] See, e.g., INA § § 101(a)(43)(K)(i), (Q), (S), (T), 212(a)(2)(A)(i)(II), 237(a)(2)(B), 237(a)(2)(D)(i); 8 U.S.C. § § 1101(a)(43)(K)(i), (Q), (S), (T); 1182(a)(2)(A)(i)(II), 1227(a)(2)(B), 1227(a)(2)(D)(i).

[407] 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)).

[408] Id. at 1073.

[409] Luu-Le v. INS, 224 F.3d 911, 915 (9th Cir. Aug. 3, 2000).  See also Urena-Ramirez v. Ashcroft, 341 F.3d 51 (1st Cir. Aug. 22, 2003) (federal conviction under the Travel Act for promoting an unlawful activity involving controlled substances constitutes a controlled substance conviction, rendering noncitizen ineligible for adjustment of status).

[410] 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).

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

[412] Id. at 1156.

[413] Matter of Carrillo, 16 I. & N. Dec. 625, 626-627 (BIA 1978).




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).

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).

Seventh Circuit

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

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).
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).").