Category Archives: Aggravated Felony

BIA Holds That The Term “Prostitution” Is Not Limited to Crimes Involving Sexual Intercourse

BIA Holds That The Term “Prostitution” As Used In INA §101(a)(43)(K)(i), Which Provides That An Offense Relating To Owning, Controlling, Managing, or Supervising A Prostitution Business Is An Aggravated Felony, Is Not Limited to Crimes Involving Sexual Intercourse But Is Defined As Engaging In, Or Agreeing Or Offering To Engage In, Sexual Conduct For Anything Of Value. Therefore The Offense Of Keeping A Place Of Prostitution In Violation of §944.34(1) Of The Wisconsin Statutes Is Categorically An Aggravated Felony Per §101(a)(43)(K)(i).

On May 21, 2018, the Board of Immigration Appeals (BIA or Board), in a 2-1 precedent decision, upheld a DHS appeal of an Immigration Judge (IJ) order terminating proceedings and finding respondent not removable as an aggravated felon under INA §101(a)(43)(K)(i). Respondent, a lawful permanent resident, had been convicted of violating Wisconsin Statutes §944.34(1), which provides that one who intentionally keeps a place of prostitution is guilty of a felony. The IJ had relied on prior BIA precedent, Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), which found that for purposes of INA §212(a)(2)(I)(ii), the term “prostitution” means “engaging in promiscuous sexual intercourse for hire,” a definition he found limited the term to acts involving sexual intercourse. Because the Wisconsin law included additional sex acts in its definition of “prostitution,” the IJ concluded it is overbroad relative to §101(a)(43)(K)(i), citing Second Circuit case law.

In its initial analysis, the Board noted that the DHS appeal “pointed out that only a handful of States limited the definition of prostitution to acts involving sexual intercourse” in 1994, when this aggravated felony section was enacted; the majority of States employed a definition including broad terms and/or listed multiple specific sex acts. The decision thus disagreed with the IJ and the case law he relied upon, claiming that the term “prostitution” as used in §101(a)(43)(K)(i) “does not necessarily have the same meaning as it does in the inadmissibility provision” at INA §212(a)(2)(D)(ii). Additionally, noted the BIA, Congress may have intended the term as used in §212(a) to have a “narrower scope” than when used in §101(a)(43)(K)(i), in that the former applies to those potential entrants who engage in prostitution or procure or import prostitutes while the latter applies to those convicted of an offense that relates to the operation of “a prostitution business.”

The Board then held that §101(a)(43)(K)(i) “should not be so narrowly construed as to exclude most States’ statutes proscribing the operation of a prostitution business from serving as predicates for removal.” The opinion went on to announce that “prostitution” is not generally limited to offenses involving sexual intercourse but is now defined as “engaging in, or agreeing or offering to engage in sexual conduct for anything of value.” As §101(a)(43)(K)(i) does not proscribe merely engaging in prostitution, it necessarily reaches “offenses of a commercial nature” relating to the owning, controlling, managing or supervising of a prostitution business. Therefore, concluded the Board, respondent’s conviction is categorically for an aggravated felony and she is removable. The decision of the IJ was vacated and the record remanded for further proceedings and entry of a new decision.

In a dissenting opinion, Board Member Cole agreed with the IJ that respondent’s conviction is not for an aggravated felony “under the existing Federal definition” of prostitution. She noted that Gonzalez-Zoquiapan limits “prostitution” to acts involving sexual intercourse. Where the majority found that the difference between the inadmissibility and aggravated felony removability grounds supported its conclusion that a different definition of prostitution is unwarranted here, Board Member Cole found this distinction to be insufficient to create a different definition for purposes of §101(a)(43)(K)(i). Moreover, she concluded, the IJ properly applied the canon of statutory interpretation employed in the Seventh Circuit (where this case arose), namely, the presumption that identical words used in different parts of the same statute should carry the same meaning – a rule followed by the Second Circuit as well. The dissent agreed with respondent that Congress should provide any new definition of “prostitution” because “neither the legislative history of the term nor the aggravated felony ground” supports the new definition. Matter of Ding, 27 I&N Dec. 295 (BIA 2018).

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BIA Holds That The Offense Of Attempted Voluntary Manslaughter Under California Penal Code Sections 192(A) And 664, Which Requires The Specific Intent To Cause Another Person’s Death, Is Categorically An Aggravated Felony Crime Of Violence Per INA § 101(A)(43)(F), Despite The Fact That The Completed Offense Of Voluntary Manslaughter Itself Is Not Such An Aggravated Felony.

On March 15, 2018 the Board of Immigration Appeals (BIA or Board), sustained the appeal of a decision of the Immigration Judge (IJ) terminating removal proceedings on the ground that the respondent is not deportable under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony.  Respondent had been convicted of both voluntary manslaughter in violation of California Penal Code (CPC) section 192(a) and attempted voluntary manslaughter under CPC sections 192(a) and 664. The initial Notice to Appear (NTA) charged him with removability under INA § 237(a)(2)(A)(iii) on the basis of her CPC section 192(a) conviction, claiming that offense constitutes an aggravated felony per INA § 101(a)(43)(F).  

However, as the Board explained, “DHS subsequently conceded that voluntary manslaughter under California law is not a crime of violence and lodged an additional charge that the respondent’s conviction for attempted voluntary manslaughter in violation of sections 192(a) and 664 is a conviction for a crime of violence (COV) under sections 101(a)(43)(F) and an attempt to commit an aggravated felony under section 101(a)(43)(U).”

The IJ found section 192(a) indivisible and overbroad relative to 101(a)(43)(F), concluding that attempted manslaughter is not an aggravated felony COV or an attempt offense under 101(a)(43)(U), that respondent was therefore not removable as charged, and terminated proceedings.  On appeal, DHS contended that a conviction under 192(a) and 664 is an aggravated felony COV, even if the completed offense of voluntary manslaughter under § 192(a) is not.

The BIA began its analysis by stating that in determining whether one is removable under § 237(a)(2)(A)(iii), it uses the categorical approach, focusing on the elements of the crime, not the case’ s particular facts; this approach asks whether the state statute of conviction fits within the generic federal definition of a corresponding aggravated felony.  As a result, the Board must compare the elements of CPC 192(a) and 664 with the Federal generic definition of a COV found at § 101(a)(43)(F). If the elements of the state crime are the same or narrower than those of the Federal offense, noted the opinion, “the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony.”

In finding that California manslaughter is not a categorical COV, the IJ relied on a Ninth Circuit case, Quijado-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015), which held that because one may be convicted under section 192(a) for reckless conduct, a conviction is not a categorical COV under the applicable Federal law, 18 U.S.C. § 16(a), which requires the intentional use of force.

The BIA then found that section 192(a) is not a categorical COV “because it encompasses both intentional and reckless acts”, but concluded that the offense of attempted voluntary manslaughter under the CPC “is not similarly overboard relative to § 16(a)”.  In fact, one who violates sections 192(a) and 664 must act with “the specific intent to kill another person.” The Board thus held that, unlike voluntary manslaughter, the attempted crime under sections 192(a) and 664 requires a specific intent to kill, necessarily involving the volitional “use” of force required by § 16(a).

Finally, held the decision, although counterintuitive, respondent’s conviction for attempted voluntary manslaughter under 192(a) and 664 is categorically a COV under § 16(a), under the completed crime of a voluntary manslaughter, which encompasses reckless conduct and is therefore not a categorical COV under Ninth Circuit law.  The appeal was sustained, the IJ’s decision vacated and removal proceedings reinstated with the record remanded to the Immigration Court. Matter of Cervantez Nunez, 27 I&N Dec.238 (BIA 2018).

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BIA Holds That In Deciding Whether A State Offense Is Punishable As A Felony Under The Federal Controlled Substances Act (CSA) And Is Thus An Aggravated Felony Drug Trafficking Crime Per INA §101(A)(43)(B), IJ’s Need Not Look Solely To The CSA Provision Most Similar To The State Statute Of Conviction.  Respondent’s Conviction Under §2C:35-7 Of The New Jersey Statutes For Possession With Intent To Distribute Cocaine Within 1,000 Feet Of School Property Is An Aggravated Felony Drug Trafficking Crime Because The State Offense Satisfies All Of The Elements Of 21 U.S.C. §841(A)(1) Of The CSA And Would Be Punishable Under That Provision.

On March 14, 2018, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an Immigration Judge (IJ) finding that respondent was not removable per INA §237(a)(2)(A)(ii) as one convicted of an aggravated felony drug trafficking crime under INA §101(a)(43)(B), granting his application for cancellation of removal.  DHS argued that the IJ erroneously granted the application as respondent’s violation of New Jersey Statutes §2C:35-7 constitutes an aggravated felony per (a)(43)(B). Whether a state drug offense qualifies as an aggravated felony is a question of law reviewed de novo, held the opinion.  

The BIA’s analysis began with the decision noting that, as an “aggravated felony” under §101(a)(43)(B) encompasses illicit trafficking in a controlled substance and the term “drug trafficking crime” means any felony punishable under the CSA, a state drug conviction constitutes an aggravated felony drug trafficking crime if it would be punishable under the CSA.  Further, stated that the Board, because an offense can be an aggravated felony if it is punishable as a felony under any provision of the CSA, DHS correctly argued on appeal that the crime defined by §2C:35-7 “is punishable as a felony under 21 U.S.C. §841(a)(1)(2012), which is also an appropriate Federal analogue to the State statute”.

In turn, the decision agreed with DHS that this approach is allowable and that §884(a)(1) is “an appropriate Federal analogue” to §2C:35-7, finding that the IJ’s conclusion that respondent’s state offense was not an aggravated felony drug trafficking crime because it would not be punished as a felony under 21 U.S.C. §860(2012) was “unreasonably limited”.  The Board further concluded that the only difference between §2C:35-7 and §841 is that the New Jersey offense criminalizes a narrower subset of controlled substance offenses within the border universe of those encompassed by §841.

Clearly, held the Board, finding that §860 is the only appropriate analogue to §2C:35-7 would lead to absurd results, i.e., a holding that possession of cocaine with the intent to dispense it is a §101(a)(43)(B) aggravated felony but the same crime committed within proximity to a school is not.  The BIA therefore concluded that respondent’s conviction for possession with intent to distribute cocaine within 1,000 feet of school property is an aggravated felony drug trafficking crime because it satisfies all the elements of §841(a)(1) and would be punishable as a felony under that provision.  The Government’s appeal was sustained and the IJ’s cancellation grant vacated; respondent was ordered removed.

In a concurring opinion, Board Member O’Connor noted what he termed “the absurdity of the legal manipulations we must go through to reach this common sense conclusion, which seems to be a reoccurring sentiment expressed by adjudicators everywhere”.  He found that the “proper inquiry” was whether all violations of §2C:35-7 are punished as felonies under the CSA as a whole.  By looking at the law in its entirety, he wrote, “we see that all violations of section 2C:35-7 would be punished as felonies under that Federal law”.  Matter of Rosa, 27 I&N Dec. 228 (BIA 2018).

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