Sandra Espinal-Andrades v. Eric Holder, Jr. , 777 F.3d 163 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2418
SANDRA YAMILETH ESPINAL-ANDRADES,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 30, 2014 Decided: January 22, 2015
Before SHEDD, AGEE, and WYNN, Circuit Judges.
Petition denied by published opinion. Judge Wynn wrote the
opinion, in which Judge Shedd and Judge Agee concurred.
ARGUED: Jorge Enrique Artieda, JORGE E. ARTIEDA LAW OFFICE PC,
Falls Church, Virginia, for Petitioner. Colin James Tucker,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney
General, Civil Division, Anthony W. Norwood, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
WYNN, Circuit Judge:
Petitioner Sandra Yamileth Espinal-Andrades, a lawful
permanent resident, pled guilty to arson under Maryland’s arson-
in-the-first-degree statute. At the heart of this appeal is
whether that conviction qualifies as an aggravated felony under
the Immigration and Nationality Act (“INA”). We agree with the
immigration judge and Board of Immigration Appeals (“BIA”) that
it does and, for the reasons explained below, deny Espinal’s
petition.
I.
Espinal immigrated to the United States from El Salvador in
1999 and became a lawful permanent resident that same year. On
August 27, 2009, a Maryland grand jury indicted her on four
counts: (1) first degree arson, (2) second degree arson, (3)
first degree malicious burning of property greater than $1,000,
and (4) reckless endangerment. On January 27, 2010, Espinal
entered a plea pursuant to N. Carolina v. Alford, 400 U.S. 25
(1970), on the first degree arson count, and the state dropped
the remaining three charges. She was sentenced to 360 days in
prison.
On March 12, 2013, the Department of Homeland Security
(“DHS”) issued Espinal a Notice to Appear (“Notice”). The
Notice made several factual allegations concerning Espinal’s
2
citizenship status, and she denied each one. Espinal also
denied the charge that she was subject to removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii), contesting DHS’s assertion that her first
degree arson conviction qualified as an aggravated felony.
On May 9, 2013, an immigration judge ruled that all of
DHS’s factual allegations in the Notice were true, and Espinal
raised no objections to this ruling. Espinal did, however,
object to the classification of her state arson charge as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(E), which defines
“aggravated felony” as, inter alia, “an offense described in” 18
U.S.C. § 844(i), a federal arson statute.
The parties briefed the issue, and on June 4, 2013, the
immigration judge ruled against Espinal. In doing so, the
immigration judge acknowledged that the Maryland statute lacked
the federal jurisdictional element contained in § 844(i), which
requires that the destroyed property be “used in interstate or
foreign commerce.” However, the immigration judge favorably
cited two precedential BIA cases holding that convictions under
state statutes qualified as removable aggravated felonies under
the INA “even though the state offense[s] lack[ed] the
jurisdictional elements of the federal crime[s].” A.R. 44
(citing Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011),
vacated sub nom. Bautista v. Attorney Gen. of U.S., 744 F.3d 54
(3d Cir. 2014), and In re Vasquez-Muniz, 23 I. & N. Dec. 207
3
(BIA 2002) (en banc)). Accordingly, the immigration judge ruled
that Espinal’s arson conviction qualified as an aggravated
felony and ordered her removed.
Espinal appealed the decision to the BIA. In a single-
member panel decision, the BIA dismissed Espinal’s appeal. It
recognized agency precedent establishing that “Congress meant to
cover State arson offenses when it referenced § 844(i) in the
definition of an aggravated felony and did not intend to exclude
them simply because a State crime lacked a Federal
jurisdictional element.” A.R. 3 (citing In re Vasquez-Muniz, 23
I. & N. Dec. 207 (BIA 2002) (en banc), and Matter of Bautista,
25 I. & N. Dec. 616 (BIA 2011)). Espinal then petitioned this
Court for review of the BIA’s decision.
II.
Generally, this Court lacks jurisdiction to review the
final order of removal of an alien convicted of certain
enumerated crimes, including an aggravated felony. Ramtulla v.
Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). But under 8 U.S.C.
§ 1252(a)(2)(D), we retain jurisdiction to consider questions of
law, such as whether a conviction qualifies as an aggravated
felony. Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir. 2007).
We review the BIA’s legal conclusions de novo. Martinez v.
Holder, 740 F.3d 902, 909 (4th Cir. 2014). The BIA’s statutory
4
interpretations of the INA are afforded the appropriate
deference, “recognizing that Congress conferred on the BIA
decisionmaking power to decide such questions of law.” Id.
(citing INS v. Aguirre–Aguirre, 526 U.S. 415, 424 (1999), and
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842–43 (1984)).
To determine what deference is owed, “we begin our analysis
with a determination of whether the statute at issue is
unambiguous with respect to the question presented. If so, then
the plain meaning controls the disposition of [Espinal’s]
appeal.” Bracamontes v. Holder, 675 F.3d 380, 384 (4th Cir.
2012). This is Chevron step one. But if the statute is silent
or ambiguous, “the question for this court becomes whether the
BIA’s interpretation ‘is based on a permissible construction of
the statute.’” Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir.
2008) (quoting Chevron, 467 U.S. at 843). This is Chevron step
two.
However, we do not afford the BIA’s single-member decisions
Chevron deference because they lack precedential value. See,
e.g., Martinez, 740 F.3d at 909-10. But the single-member BIA
decision on appeal here relies on precedential en banc and
three-member panel decisions. See A.R. 3–4 (citing In re
Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002) (en banc) (holding
that possession of a firearm in violation of California law
5
qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)
despite the absence of the federal jurisdictional element), and
Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011) (holding that
a conviction under a New York arson statute qualified as an
aggravated felony under 8 U.S.C. § 1101(a)(43) despite the
absence of the federal jurisdictional element), vacated sub nom.
Bautista v. Attorney Gen. of U.S., 744 F.3d 54 (3d Cir. 2014)). 1
That controlling precedent is given Chevron deference.
III.
With her main argument on appeal, Espinal contends that she
is not deportable because her Maryland arson conviction does not
qualify as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(E). Both the immigration judge and the BIA
reached the opposite conclusion, relying on the BIA’s
precedential decisions in Matter of Bautista and In re Vasquez-
Muniz. Upon careful review, we, too, reject Espinal’s argument.
1
Although the Third Circuit vacated the BIA decision in
Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011), this does
not affect the decision’s precedential effect outside the Third
Circuit. See Matter of Anselmo, 20 I. & N. Dec. 25, 31 (BIA
1989) (“We are not required to accept an adverse determination
by one circuit court of appeals as binding throughout the United
States.” (citing several circuit court cases)).
6
A.
To provide context for our Chevron analysis, we find it
helpful to first set out the pertinent statutes. Under the INA,
“[a]ny alien who is convicted of an aggravated felony at any
time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). And an “aggravated felony” is “an offense
described in . . . 18 U.S.C. § 844(i).” 8 U.S.C.
§ 1101(a)(43)(E).
In turn, 18 U.S.C. § 844(i) prescribes various punishments
for an individual who “maliciously damages or destroys, or
attempts to damage or destroy, by means of fire or an explosive,
any building, vehicle, or other real or personal property used
in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce.” The elements of 18 U.S.C.
§ 844(i) and the Maryland statute under which Espinal was
convicted are identical in all but one respect: the Maryland
statute lacks the federal jurisdictional element requiring that
the destroyed property be “used in interstate or foreign
commerce.” Compare 18 U.S.C. § 844(i), with Md. Code Ann.,
Crim. Law § 6-102 (West). See also Gov’t’s Br. 11 (noting that
this is not in dispute).
Finally, the penultimate sentence of 8 U.S.C. § 1101(a)(43)
states that “[t]he term [‘aggravated felony’] applies to an
offense described in this paragraph whether in violation of
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Federal or State law and applies to such an offense in violation
of the law of a foreign country for which the term of
imprisonment was completed within the previous 15 years.” 8
U.S.C. § 1101(a)(43) (emphases added).
B.
In analyzing these statutes under Chevron, we “must first
consider whether ‘Congress has directly spoken to the precise
question’ at issue.” United States v. Thompson–Riviere, 561
F.3d 345, 350 n.2 (4th Cir. 2009) (quoting Chevron, 467 U.S. at
842). To determine whether Congress has spoken directly through
the relevant statutes, we must “begin by examining [the
statute’s] plain language” and “give the relevant terms their
common and ordinary meaning.” Yi Ni v. Holder, 613 F.3d 415,
424 (4th Cir. 2010).
Section § 1101(a)(43)(E) defines “aggravated felony,” in
relevant part, as “an offense described in . . . 18 U.S.C.
§ 844(i).” (emphasis added). By contrast, three other
subparagraphs in 8 U.S.C. § 1101(a)(43) use the term “defined
in” instead of “described in” to identify aggravated felonies.
E.g., 8 U.S.C. § 1101(a)(43)(B), (C), and (F).
Comparing dictionary definitions, “described in” is the
broader of the two terms. The American Heritage Dictionary
defines “define” as “[t]o state the precise meaning,” “make
clear the outline or form of,” or “[t]o specify distinctly.”
8
The American Heritage Dictionary of the English Language 476
(5th ed. 2011). By contrast, the same dictionary defines
“describe” as “[t]o convey an idea or impression of,” or “[t]o
trace the form or outline of.” Id. at 490. Other circuits have
also interpreted the terms this way. See, e.g., Torres v.
Holder, 764 F.3d 152, 157 (2d Cir. 2014) (noting that “described
in” has a “broader standard”); United States v. Castillo-Rivera,
244 F.3d 1020, 1023 (9th Cir. 2001) (noting that “described in”
is a looser standard). 2 Bearing the plain meaning of “define”
and “describe” in mind, it appears as if Congress intended for
the aggravated felonies “described in” the pertinent federal
statute to include crimes that are not “defined in”—that is,
precisely identical to–that federal statute.
Further, the penultimate sentence of 8 U.S.C. § 1101(a)(43)
states that convictions under the described offenses qualify as
aggravated felonies “whether in violation of Federal or State
law and applies to such an offense in violation of the law of a
foreign country for which the term of imprisonment was completed
within the previous 15 years.” (emphases added). It is “a
cardinal principle of statutory construction that a statute
2
We recognize that the Third Circuit, in a divided opinion,
ruled differently on this precise issue. Bautista, 744 F.3d at
54. Frankly, we disagree with the majority opinion’s analysis
and conclusion, not least for many of the reasons expressed in
Judge Ambro’s thoughtful dissent. Id. at 69-74.
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ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.” Alaska Dep’t of Envtl. Conservation v.
E.P.A., 540 U.S. 461, 489 n.13 (2004) (citations omitted).
Accordingly, we must try to give every word in the statute
meaning to avoid rendering its terms superfluous. Discover Bank
v. Vaden, 396 F.3d 366, 369 (4th Cir. 2005).
Doing so here yields an obvious result: Because state laws
will seldom—if ever—contain a federal jurisdictional element,
and foreign crimes are even less likely to contain a United
States–jurisdictional element, we conclude that Congress clearly
expressed its intent for aggravated crimes “described in”
federal statutes to include substantively identical state and
foreign crimes that lack only the federal jurisdictional
element. Any contrary reading would render the penultimate
sentence superfluous.
The plain meaning of the terms and the application of
statutory construction principles leave us with no doubt
regarding Congress’s intent. Nevertheless, a sister circuit has
come down the other way on this issue. Bautista, 744 F.3d at
57. Recognizing that such a disagreement may be, to some, an
indication that the statute is ambiguous (again, we do not think
it is), we take a belt-and-suspenders approach and turn to the
second step of Chevron.
10
C.
At Chevron step two, we determine whether the BIA’s
interpretation of 8 U.S.C. § 1101(a)(43)(E) is reasonable. If
it is, we cannot substitute our own preferred statutory
interpretation. Chevron, 467 U.S. at 844. And the BIA’s
interpretation is reasonable as long as it is not “arbitrary,
capricious, or manifestly contrary to the statute.” Id.
As noted above, the single-member BIA panel that issued
Espinal’s decision relied on the precedential decisions of In re
Vasquez-Muniz and Matter of Bautista. In In re Vasquez-Muniz,
the BIA looked at the statute’s “overall design,” “the language
of the aggravated felony provision itself,” “very specific
[statutory] references” that a contrary interpretation would
render superfluous, and persuasive authority from an analogous
Ninth Circuit case. 3 23 I. & N. Dec. at 209–12. In Matter of
3
In In re Vasquez-Muniz, the BIA briefly discussed United
States v. Castillo–Rivera, 244 F.3d 1020 (9th Cir. 2001). 23 I.
& N. Dec. 207, 212 (BIA 2002). Castillo-Rivera held that a
state firearm possession offense was an aggravated felony under
the INA, concluding that that the interstate commerce element
included in 18 U.S.C. § 922(g) is “merely a jurisdictional
basis.” 244 F.3d at 1023–24. Two circuits have since adopted
the same interpretation. See Nieto Hernandez v. Holder, 592
F.3d 681, 685 (5th Cir. 2009) (holding that the “interstate
commerce element is simply an element that ensures federal
jurisdiction” and that requiring it to be present in a state
offense “would undermine Congress’s evident intent that
jurisdiction be disregarded in applying” the definition of an
aggravated felony); Negrete–Rodriguez v. Mukasey, 518 F.3d 497,
501–03 (7th Cir. 2008) (holding that, “[a]lthough not ‘mere
(Continued)
11
Bautista, the BIA reaffirmed In re Vasquez-Muniz’s analysis and,
after analyzing Jones v. United States, 529 U.S. 848 (2000)
(discussing scope of a federal arson statute vis-à-vis a federal
jurisdictional element), specifically concluded that “Congress
meant to cover State arson offenses when it referenced § 844(i)
in the definition of an aggravated felony.” 25 I. & N. Dec. at
618–21. The BIA tethered its interpretation to traditional
tools of statutory interpretation, and nothing leads this Court
to conclude that its construction is unreasonable.
In sum, we conclude that (1) Espinal’s state arson
conviction unambiguously qualifies as an aggravated felony under
8 U.S.C. § 1101(a)(43)(E), and (2) even if any ambiguity
existed, the BIA’s interpretation was reasonable.
IV.
Espinal advances two arguments in the alternative: (1) the
BIA should have applied the rule of lenity to her case, and (2)
the BIA’s application of Matter of Bautista was impermissibly
retroactive. Neither argument has merit.
surplusage,’ a jurisdictional element does little more than
ensure that the conduct regulated in a federal criminal statute
is within the federal government's limited power to proscribe”
and, therefore, finding the state offense to be an aggravated
felony).
12
Espinal first argues that the BIA should have applied the
rule of lenity to her case. In the immigration context, “the
rule of lenity stands for the proposition that ambiguities in
deportation statutes should be construed in favor of the
noncitizen.” Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir. 2012)
(citing Fong Haw Tan v. Phelan, 333 U.S. 6, 9–10 (1948)).
Assuming, without deciding, that Chevron still leaves some
place for the rule of lenity, 4 “[t]o invoke the rule, we must
conclude that there is a grievous ambiguity or uncertainty in
the statute.” Muscarello v. United States, 524 U.S. 125, 138-39
(1998) (citations omitted). That is simply not the case here;
the pertinent statute is not grievously ambiguous. The rule of
lenity therefore has no place here.
Espinal next argues that applying Matter of Bautista to her
case violates her due process rights because the BIA adopted “a
novel construction of the INA and federal criminal law,” leaving
her without the requisite notice. Pet.’s Br. 19. Espinal’s
4
In light of Chevron, some have questioned the rule of
lenity’s role in the immigration context. See, e.g., David S.
Rubenstein, Putting the Immigration Rule of Lenity in Its Proper
Place: A Tool of Last Resort After Chevron, 59 ADMIN. L. REV. 479
(2007) (arguing that the rule of lenity should be used to
resolve lingering statutory ambiguities only after Chevron’s
second step); Matthew F. Soares, Note, Agencies and Aliens: A
Modified Approach to Chevron Deference in Immigration Cases, 99
CORNELL L. REV. 925 (2014) (arguing that the immigration rule of
lenity should be used as an underlying principle to inform the
Chevron analysis).
13
2010 conviction postdates the 1996 enactment of 8 U.S.C.
§ 1101(a)(43). In relying on the 2011 Matter of Bautista
decision, the BIA therefore “did not retroactively apply a new
law but instead applied [its] determination of what the law ‘had
always meant.’” De Quan Yu v. U.S. Attorney Gen., 568 F.3d
1328, 1333 (11th Cir. 2009) (per curiam) (quoting Rivers v.
Roadway Express, Inc., 511 U.S. 298, 313 n.12 (1994)). Once
Matter of Bautista issued, “that decision became the controlling
interpretation of the law and was entitled to full retroactive
effect in all cases still open on direct review, regardless of
whether the events predated the . . . decision.” Id. at 1334.
And although the Third Circuit vacated Matter of Bautista, this
does not affect the decision’s precedential effect in the Fourth
Circuit. See supra note 1. Accordingly, Matter of Bautista was
not applied impermissibly, and it governs Espinal’s case.
V.
For the foregoing reasons, we deny Espinal’s petition for
review.
PETITION DENIED
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