Crimes of Moral Turpitude
§ 6.7 C. All Reasonable Doubts Favor the Noncitizen
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The rules of statutory construction, in immigration cases, require the court to grant immigrants the benefit of all reasonable doubts, both of fact and law, in interpretation of the immigration statutes and regulations,[134] because of the drastic, penal consequences of deportation.[135] 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.[3]
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.”[136] The Ninth Circuit expressed awareness of this principle, 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.”[137]
The courts must narrowly construe deportation statutes in favor of the noncitizen.[138] If the statute and judicial decisions defining the offense leave its nature ambiguous,[139] all reasonable doubts must be construed in favor of the noncitizen.[140] However, the courts have viewed the applicability of the rule of lenity narrowly:
Lisbey also asks us to conclude that § 16 is ambiguous and to apply the rule of lenity to construe the ambiguities in favor of the petitioner. See Leocal, 125 S.Ct. at 384. Courts should not deem a statute “ambiguous” for purposes of lenity merely because it is possible to articulate a construction more narrow than that urged by the Government. Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L. Ed.2d 449 (1990). Instead, courts have “reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” Id. (citation and internal quotation marks omitted). This is not such a case. The meaning of this statute is clear.[141]
The United States Supreme Court has recently suggested that the rule of lenity as applied to criminal proceedings should also apply to the immigration context when the issue concerns the interpretation of a criminal statute:
Even if § 16 lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner’s favor. Although here we deal with § 16 in the deportation context, § 16 is a criminal statute, and it has both criminal and noncriminal applications. Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies. Cf. United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518, 112 S.Ct. 2102, 119 L. Ed.2d 308 (1992) (plurality opinion) (applying the rule of lenity to a tax statute, in a civil setting, because the statute had criminal applications and thus had to be interpreted consistently with its criminal applications).[142]
Therefore, the noncitizen faced with a question of whether his or her conviction triggers removal as an aggravated felony should have the benefit of both the immigration and criminal rules of lenity.
[143] Esponda v. U.S. Att’y Gen., 453 F.3d 1319 (11th Cir. Jun. 28, 2006) (conflicting regulations should be resolved in the noncitizen’s favor).
[134] Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376 (1948).
[135] Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L. Ed. 433 (1948).
[136] Barber v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825 (1954).
[137] Garcia-Gonzales v. INS, 344 F.2d 804 (9th Cir. 1965).
[138] Rosenberg v. Fleuti, 374 U.S. 449, 459 (1963); Bonetti v. Rogers, 356 U.S. 691, 699 (1958); Barber v. Gonzalez, 347 U.S. 637, 642-643 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975); Matter of Chartier, 16 I. & N. Dec. 284, 287 (BIA 1977).
[139] John F. Decker, Addressing Vagueness: Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denver U. L. Rev. 241 (2002).
[140] Matter of H, 7 I. & N. Dec. 616 (BIA 1957). See also United States v. Orellana, 405 F.3d 360 (5th Cir. Apr. 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.”); Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957).
[141] Lisby v. Gonzalez, 420 F.3d 930 (9th Cir. 2005). See also Puello v. BCIS, 511 F.3d 324, 334 (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 Puello’s interpretation, we need not resort to the rule of lenity."); Ruiz-Almanzar v. Ridge, 485 F.3d 193 (2d Cir. May 8, 2007) (rule of lenity in interpreting immigration statutes is a last resort, used only when the other rules of statutory construction leave a statute ambiguous; Chevron rule of deference can be used to interpret an ambiguous provision prior to using the rule of lenity).
