Criminal Defense of Immigrants


§ 16.37 C. Parentheticals

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Parentheticals are common in the various grounds of removal.  A number of the aggravated felony definitions, for example, are of the form, “an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) . . . .”[419]  In assessing whether the immigration authorities will consider a specific offense to fall within a ground of removal, obviously the words of the statute are a prime consideration.  This raises the question whether Congress meant to restrict the grounds of removal to the specific offenses listed in the parentheticals, or meant to include all offenses whatsoever falling within the statute, in which case the parenthetical label was included in the statute only as a general aid to the reader indicating the general nature of the statute listed in the definition.  The BIA and the circuit courts have taken the position that the various parentheticals present the INA cannot all be treated in the same way.


                The BIA has 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[420] constituted an aggravated felony, even though there was no alien smuggling in the traditional sense of transportation of noncitizens across a border.[421]  This decision, in dictum, explicitly refers to other parentheticals in the aggravated felony definition statute, such as “relating to child pornography,”[422] and therefore suggests that the Board may ignore the meaning of the words used in other parentheticals as well throughout the statute.[423]


                The Board fails to explain why it considers some parentheticals, such as “(relating to alien smuggling)” in INA § 101(a)(43)(N)[424] to be meaningless surplusage in the statute, whereas others, such as “(as defined in section 102 of the Controlled Substances Act)”[425] in (B) must obviously be given their full significance.[426]


                In United States v. Monjaras-Castaneda,[427] the Fifth Circuit applied rules of statutory construction and grammar[428] to determine that the parenthetical in INA § 101(a)(43)(N) was merely descriptive:


An examination of this language reveals that the parenthetical, “(relating to alien smuggling)” refers to “paragraph (1)(A) or (2) of section 1324(a) of this title,” not “offense.” The conventional rules of grammar demonstrate this. See Norman J. Singer, 2A Sutherland Statutory Construction § 45.13, at 78 (5th ed.1992) (“[L]egislators can be presumed to rely on conventional language usage.”).  If the parenthetical referred to “offense,” it would have been placed directly after that word. The parenthetical instead has been placed in the prepositional phrase introduced by “in,” of which “paragraph” is the subject. See John E. Warriner and Francis Griffith, English Grammar and Composition 37-40 (Heritage ed., Harcourt Brace Jovanovich 1977) (discussing prepositional phrases).  This examination indicates that the parenthetical is more reasonably interpreted as descriptive rather than limiting. If the parenthetical referred to “offenses,” then the statute would effectively read: “offense[s] (relating to alien smuggling) described in paragraph (1)(A) or (2) of section 1324(a) of this title,” which obviously would be a very different proposition that would clearly favor Monjaras’s interpretation. But, alas, that is not the way the statute is written.


However, the Second Circuit rejected this analysis, noting that this analysis fails when applied to some parentheticals in the aggravated felony definition that are clearly supposed to limit the scope of the definition.[429]


                The Monjaras-Castaneda court also suggested that a parenthetical should be taken as descriptive unless the language in the parenthetical clearly indicates that the language is meant to be limiting:


Section 1101(a)(43) contains a long list of aggravated felonies that it references by section number. Without any descriptions of what this “litany of numbers” referred to, determining whether an offense qualified as an aggravated felony would be a long and arduous process. One would need to look up each section number in the Code to get to the right one. The parentheticals here provide an “aid to identification” only.


The government makes a strong structural argument by pointing to parentheticals in § 1101(a)(43) that are indeed expressly limiting. One example is § 1101(a)(43)(F), which reads “a crime of violence (as defined in § 16 of Title 18, but not including a purely political offense) for which a term of imprisonment is at least one year.” (Emphasis added.) Another is § 1101(a)(43)(J): “an offense described ··· in section 1084 ( if it is a second or subsequent offense).” (Emphasis added.)


Congress thus clearly demonstrated its ability to exclude some specific offenses from those listed in the more general sections.[430]


This suggests that the courts will read a parenthetical as a general descriptor, rather than limiting, unless an argument can be made that Congress obviously meant the language in parentheses to be given its full effect.

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

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

[421] Matter of Ruiz-Romero, 22 I. & N. Dec. 486 (BIA 1999).  The federal courts generally agree that a conviction of harboring an undocumented foreign national constitutes an aggravated felony, reading the parenthetical to be descriptive, rather than limiting. 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).

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

[423] See INA § 101(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, 8 U.S.C. § § 1101(a)(43)(B), (C), etc.

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

[425] INA § § 101(a)(43)(B), 212(a)(2)(A)(i)(II), 237(a)(2)(B), 8 U.S.C. § 1101(a)(43)(B); 1182(a)(2)(A)(i)(II), 1227(a)(2)(B).

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

[427] United States v. Monjaras-Casteneda, 190 F.3d 326 (5th Cir. 1999) (transporting aliens is an offense “related to” alien smuggling).

[428] The court cited other decisions applying similar analysis to other statutes. Id. at 330, citing Quarles v. St. Clair, 711 F.2d 691, 700 n.28 (5th Cir. 1983) (concluding that parenthetical in 42 U.S.C. § 602(a)(28) was for clarification purposes only); United States v. Herring, 602 F.2d 1220, 1223 (5th Cir. 1979) (holding that parenthetical in 18 U.S.C. § 1961 was “merely to aid identification of [18 U.S.C.] § 2314 rather than to limit”); United States v. Kassouf, 144 F.3d 952, 959-60 (6th Cir. 1998) (finding parenthetical in 26 U.S.C. § 6531(6) descriptive); United States v. Garner, 837 F.2d 1404, 1419 (7th Cir. 1987) (finding parenthetical in 18 U.S.C. 1961(1)(B) “mere ‘visual aids,’ designed to guide the reader through what would otherwise be a litany of numbers”).

[429] Evangelista v. Ashcroft, 359 F.3d 145, 152-153 (2d Cir. Feb. 23, 2004) (citing INA § 101(a)(43)(L), 8 U.S.C. § 1101(a)(43)(L)).  See also INA § 101(a)(43)(K)(ii), 8 U.S.C. § 1101(a)(43)(K)(ii) (federal sexual abuse offenses “(related to transportation for the purpose of prostitution) if committed for commercial advantage . . .”).

[430] United States v. Monjaras-Casteneda, 190 F.3d at 330, citing Cabell Huntington Hospital, Inc. v. Shalala, 101 F.3d 984, 990 (4th Cir. 1996) (“A parenthetical is, after all, a parenthetical, and it cannot be used to overcome the operative terms of the statute.”).



Seventh Circuit

Gourche v. Holder, ___ F.3d ___, 2011 WL 5443657 (7th Cir. Nov. 9, 2011) (federal conviction of conspiracy to violate 18 U.S.C. 1546(a), fraud in immigration documents, categorically triggers deportation under INA 237(a)(3)(B)(iii), 8 U.S.C. 1227(a)(3)(B)(iii); the parenthetical language (relating to fraud and misuse of visas, permits, and other entry documents) is merely descriptive). NOTE: The court stated that, In ascertaining the meaning of a statute, we look to the language and the structure of the statutory provisions. Burma v. Holder, 640 F.3d 749, 751 (7th Cir.2011); United States v. Webber, 536 F.3d 584, 593 (7th Cir.2008). In this case, both the language of the parenthetical phrase and the structure of the provision demonstrate that Congress intended only to provide a convenient shorthand description of 1546 (prohibiting fraud and misuse of visas, permits, and other documents) rather than to limit the class of aliens deportable under 1227(a)(3)(B)(iii).); see Patel v. Ashcroft, 294 F.3d 465, 470"71 (3d Cir.2002), superseded on other grounds by statute, REAL ID Act of 2005, Pub.L. No. 109"13, div. B, 106, 119 Stat. 231; United States v. Galindo"Gallegos, 244 F.3d 728, 733"34 (9th Cir.2001) (as amended); United States v. Salas"Mendoza, 237 F.3d 1246, 1247"48 (10th Cir.2001); United States v. Monjaras"Castaneda, 190 F.3d 326, 330"31 (5th Cir.1999); but see Evangelista v. Ashcroft, 359 F.3d 145, 152 (2d Cir.2004) (declining to apply the Fifth Circuit's approach in Monjaras"Castaneda to analysis of 8 U.S.C. 1101(a)(43)(M)(ii)).