In Re Espinoza-Gonzalez, ...Alvarado-Alvino, and ...Sweetser: Rulings Clarify Whether Certain Convictions Constitute Aggravated Felonies

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

IN RE ESPINOZA-GONZALEZ, ...ALVARADO-ALVINO, AND ...SWEETSER: RULINGS CLARIFY WHETHER CERTAIN CONVICTIONS CONSTITUTE AGGRAVATED FELONIES
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999

The Board of Immigration Appeals has issued rulings in three separate matters addressing whether certain criminal convictions constitute "aggravated felonies," as the term is defined by the Immigration and Nationality Act. Under the INA, convictions for aggravated felonies are grounds for removal, and aliens who are found removable based on such grounds are rendered ineligible for nearly all forms of relief.

In re Espinoza-Gonzalez examined whether a conviction for misprision of a felony constitutes an aggravated felony under INA section 101(a)(43)(S), as an offense relating to the obstruction of justice. The respondent in this case had been convicted of misprision of a felony—specifically, conspiracy to possess marijuana with the intent to distribute, in violation of 18 U.S.C. section 4. As a result, the Immigration and Naturalization Service placed him in removal proceedings and charged him with removability as an alien convicted of an aggravated felony. The immigration judge, however, found that the INS had failed to establish the respondent’s removability as an aggravated felon, concluding that misprision does not fall under any of the U.S.C. sections defining obstruction of justice.

On appeal, the INS argued that misprision does not have to fall within the U.S.C. sections defining obstruction of justice because INA section 101(a)(43)(S) requires only that the offense "relate to" the obstruction of justice. Such a broad reading of the phrase is appropriate, the agency argued, in light of recent congressional actions that have expanded the definition of aggravated felony, as well as other factors. However, after a detailed examination of the elements comprising both misprision and the various definitions of obstruction of justice contained in the U.S.C., the BIA disagreed with the INS and dismissed the agency’s appeal of the IJ’s ruling.

In In re Alvarado-Alvino, the issue was whether an individual convicted of smuggling undocumented immigrants into the U.S. under INA section 275(a) can be classified as an aggravated felon. Section 101(a)(43)(O) of the INA applies the aggravated felony definition to certain offenses described in section 275(a), but only where the alien was previously deported based on an aggravated felony conviction. Since these circumstances did not apply to the respondent, he could not be considered an aggravated felon under subparagraph O.

A separate provision of INA section 101(a)(43), subparagraph N, classifies as an aggravated felony "an offense described in paragraph (1)(A) or (2) of section 274(a) (relating to alien smuggling)," with certain exceptions. Despite the language of this provision, the INS argued that it should be interpreted to encompass all offenses related to alien smuggling, including those described in section 275(a). However, the BIA rejected this contention based on the language of the statute.

Following a recapitulation of the principles of statutory interpretation, the BIA disagreed with the INS’s position and found that had Congress intended to make the INA’s definitions of aggravated felony as malleable as the INS’s reading of them, it would have done so. The BIA sustained the respondent’s appeal and remanded the case for a hearing on the merits of the respondent’s cancellation of removal application.

In re Sweetser involved the case of a legal permanent resident of British nationality who had been convicted of criminally negligent child abuse under Colorado law. Because the respondent negligently left his stepson unattended in a bath, the child drowned. His conviction resulted in a four-year prison term.

Following his conviction, the INS charged the respondent with deportability under INA section 241(a)(2)(A)(iii), alleging that he had been convicted of an aggravated felony as defined under INA section 101(a)(43)(F). That INA section draws on the crime of violence definition found in 18 U.S.C. section 16, which requires that the offense have as an element the use (actual, threatened, or attempted) of physical force or that the offense, by its nature, involves a "substantial risk" that physical force may be used. The definition also requires that the term of imprisonment imposed be at least one year.

After classifying the Colorado statute under which the respondent was convicted as "divisible" (that is, it encompasses offenses that include the use of force as an element and offenses that do not), the BIA undertook an examination of the record of conviction and found that the nature of the respondent’s offense was such that it did not involve the use of force or violence. Accordingly, the BIA held, the respondent did not commit an offense falling within the INA’s definition of crimes of violence. The BIA sustained the respondent’s appeal and ordered deportation proceedings terminated.

In re Espinoza-Gonzalez, Int. Dec. 3402 (BIA June 11, 1999); In re Alvarado-Alvino, Int. Dec. 3391 (BIA May 24, 1999); In re Sweetser, Int. Dec. 3390 (BIA May 19, 1999).