BIA: State Conviction for Unlawful Sexual Intercourse with a Minor That Has Been Reduced to a Misdemeanor Is Not an "Aggravated Felony" (Matter of Crammond)

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA: STATE CONVICTION FOR UNLAWFUL SEXUAL INTERCOURSE WITH A MINOR THAT HAS BEEN REDUCED TO A MISDEMEANOR IS NOT AN "AGGRAVATED FELONY" (MATTER OF CRAMMOND)
Immigrants' Rights Update, Vol. 15, No. 3, May 10, 2001

In an en banc decision, the Board of Immigration Appeals has ruled that a conviction must meet the federal definition of a "felony" in order to be considered an "aggravated felony" under section 101(a)(43)(A) of the Immigration and Nationality Act. That section applies to convictions for "murder, rape, or sexual abuse of a minor." Federal law defines a "felony" as an offense for which the maximum term of imprisonment is greater than one year. 18 U.S.C. § 3559(a)(5) (1994). The decision comes on a motion to reopen removal proceedings based on evidence submitted by the respondent to show that his felony conviction had been reduced to a misdemeanor by a California court. The opinion rejects a recent decision to the contrary of the U.S. Court of Appeals for the Seventh Circuit (see "7th Circuit Rules Misdemeanor Conviction for Sexual Abuse of a Minor Is an 'Aggravated Felony,'" p. 9).

The respondent in this case, a national of Belize, entered the U.S. as a lawful permanent resident in 1988. In March 1998, he was convicted of two crimes: residential burglary under California Penal Code section 459, for which he was sentenced to 210 days in jail and 3 years of probation, and unlawful sexual intercourse in violation of Cal. P.C. section 261.5(c), for which he was sentenced to 90 days in jail, and 3 years of probation. Removal proceedings were initiated, and in November 1999, the BIA ruled that the conviction for unlawful sexual intercourse constituted an "aggravated felony" under INA section 101(a)(43)(A), rendering him ineligible for certain relief from removal. The respondent then filed a motion to reopen, submitting evidence to show that in October 1999 the Ventura County Superior Court reduced his offense to a misdemeanor.

Examining the issue of whether INA section 101(a)(43)(A) encompasses nonfelony convictions, a majority of the BIA found the plain language of the provision to be ambiguous. The statute refers to crimes of "murder, rape, or sexual abuse of a minor," "whether in violation of Federal or State law," without specifying whether only felonies are included. The majority also found the legislative history and consideration of other provisions of the INA to be inconclusive. However, the majority concluded that limiting section 101(a)(43)(A) to felony convictions is supported by the "longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien" (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)). The BIA rejected the Seventh Circuit's contrary decision in Guerrero-Perez v. INS, __ F.3d __, 2001 WL 210186 (7th Cir. 2001), noting that the court had had to address the issue without guidance from the BIA because the BIA decision that was reviewed in that case had not addressed it.

The majority concluded that INA section 101(a)(43)(A) encompasses only crimes that meet the definition of a "felony" in 18 U.S.C. section 3559(a)(5) (1994). The respondent in this case was convicted of a crime that was divisible, punishable either by imprisonment for less than one year in the county jail, or in the state prison for more than a year. The reduction of his sentence reduced his conviction to a misdemeanor, and the BIA concluded that it therefore could not be considered an aggravated felony under section 101(a)(43)(A).

In a concurring opinion, BIA Member Filppu advanced an alternative interpretation of INA section 101(a)(43), contending that the statutory context of the original (1988) enactment of the "aggravated felony" definition establishes that at that time Congress intended to limit it to felony convictions. While subsequent amendments and additions have broadened the definition, they should be considered to include misdemeanors only in those subsections where the statute so indicates, and that is not the case with subsection 101(a)(43)(A). BIA Member Rosenberg, joined by BIA Member Miller, filed a separate concurring opinion, criticizing the reluctance of the majority opinion to find in the plain language and overall statutory scheme a clear indication of congressional intent to limit section 101(a)(43)(A) to felony convictions.

BIA Member Grant, joined by BIA Members Dunne, Scialabba, Heilman, Hurwitz, Cole, Mathon, Jones, and Ohlson, submitted a dissenting opinion. In essence, the dissent contends that the statute's definition of "aggravated felony" is a "term of art" that is inconsistent with the federal definition of "felony" and that includes misdemeanors except where they are expressly excluded.

Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001).