Criminal Defense of Immigrants


§ 19.9 (B)

Skip to § 19.

For more text, click "Next Page>"

(B)  The BIA’s Treatment of the Issue.  The Board of Immigration Appeals appears somewhat reluctant to adopt a clear definition of these generic terms in every case.  In a dissenting opinion, Board Member Rosenberg argued that the BIA should establish a “generic” definition of aggravated felony offenses to which individual state offenses could be compared.[45]  The majority of the Board did not agree with the need for a consistent, “generic” definition of common-law aggravated felony offenses.  Even more problematic, however, the Board in some cases has failed to engage in any thorough analysis of the definition of an aggravated felony “common law” offense, based on authoritative criminal law sources.


                An example of how the BIA’s lack of such standards leads to bad law, and a striking contrast to the Supreme Court’s careful review in Taylor, is the BIA’s decision in Matter of Batista-Hernandez.[46]  In Batista-Hernandez, the BIA considered the offense of accessory after the fact, which is the act of assisting a principal offender to escape arrest.  The Board properly held that accessory after the fact is not a drug offense even if the principal offense involved drugs.  However, it then went on summarily to conclude that accessory after the fact constitutes “obstruction of justice” for purposes of the aggravated felony definition, and hence is an aggravated felony if a one-year sentence has been imposed.  The BIA conducted almost no analysis to reach this conclusion, merely commenting that accessory after the fact “inherently relates to obstruction of justice . . . .”[47]  The Board did not discuss the federal statutory offense of obstruction of justice, or the fact that the U.S. Supreme Court had recently issued an opinion on obstruction of justice that made clear that accessory after the fact would not be included in the federal criminal offense.[48]  Neither did it consider or discuss definitions of obstruction of justice provided in common law, the Model Penal Code, the law of the various states, or the writings of legal scholars.


                A telling postscript to the Batista-Hernandez case is the BIA’s decision two years later in Matter of Espinoza,[49] in which the BIA did undertake a more thorough review in considering whether a conviction of misprision of felony constitutes an aggravated felony under the theory that it relates to obstruction of justice.[50]  The Board looked at the federal misprision statute, the discussion of the federal statutory definition of “obstruction of justice,” and other factors to support its decision that misprision did not constitute an offense relating to obstruction of justice.  If the Board had applied this same analysis objectively to the offense of accessory after the fact, it is likely that it would not have found that accessory after the fact triggers deportation as an aggravated felony obstruction of justice offense.[51]


                The Board in fact has begun to discuss “generic” definitions of certain aggravated felonies.  However, the Board is inconsistent in the sources it uses for such definitions, sometimes relying on obscure or unusual definitions.[52]  Likewise, the federal courts are crafting standardized definitions that do not rely solely on the federal criminal statutes, but convey the “ordinary meaning” of the provision as determined by reference to different sources.[53]

[45] Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA 1998) (Rosenberg dissent).  See also Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (concurring/dissenting opinion by Board Members Schmidt and Rosenberg).

[46] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).  See also Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999).  There, the majority of a deeply divided Board held that conviction of a completed offense, insurance fraud with no actual monetary loss, was the equivalent of a conviction for attempt to commit insurance fraud for a monetary loss, meeting the aggravated felony requirement of a loss to the victim(s) in excess of $10,000.  As the minority pointed out, this violated canons of criminal law and immigration interpretation of criminal law.

[47] Ibid.  The BIA cited dictum from United States v. Barlow, 470 F.2d 1245 (D.C. Cir. 1972), in which the court stated that the “gist” of being an accessory after the fact “lies essentially in obstructing justice by rendering assistance to hinder or prevent the arrest of the offender after he has committed the crime.”  Ibid., 470 F.2d at 1252-53, cited in Batista-Hernandez at 11, n.5.  In Barlow, the court made this comment only as part of a discussion emphasizing that for accessory after the fact to occur, the underlying offense must already have been completed.  The Barlow case stands for that proposition, and in no way purports to enunciate a definition of accessory after the fact as relating to obstruction of justice.

[48] United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357 (1995) (obstruction of justice must involve intent to influence specific existing judicial or grand jury proceedings; consequently giving false statements to an FBI agent who might or might not testify before a grand jury is not sufficient to constitute an obstruction of justice violation).

[49] Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999).

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

[51] See Board Member Rosenberg’s dissenting and concurring opinion.

[52] See, e.g., Matter of VZS, 22 I. & N. Dec. 1338 (BIA 2000) (BIA defines theft to include temporary takings of property such as the offense of “joyriding,” ignoring basic common law and Model Penal Code definitions that would exclude these offenses).

[53] See United States v. Baron-Medina, supra (defining sexual abuse of a minor not by the basic federal criminal statutes but according to the ordinary meaning of the words); Castro-Baez v. Reno, supra (same for rape); Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) (finding that if the state conviction falls within one of the listed federal statutes, it meets the common sense definition of sexual abuse of a minor).




Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("If that language constitutes a plain expression of congressional intent, it must be given effect. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 842-43. When Congress's intent is not plainly expressed, however, it is our duty to resolve any ambiguities and fill any statutory gaps in a reasonable manner, at least insofar as they pertain to portions of the statute that fall within the scope of our expertise. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-33 (1999) (following Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843-44). In doing so, we bear in mind that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).").

Sixth 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

Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (where the aggravated felony definition uses a phrase used elsewhere in federal law, the court will first look at a statute defining that phrase as a federal criminal offense).