Under the plain language of section 101(a)(43)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(H) (2012), kidnapping in violation of 18 U.S.C. § 1201(a) (2012) is not an aggravated felony.
For the full case click here or read below
Cite as 27 I&N Dec. 503 (BIA 2019) Interim Decision #3949
503
Matter of A. VASQUEZ, Respondent
Decided April 12, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Under the plain language of section 101(a)(43)(H) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43)(H) (2012), kidnapping in violation of 18 U.S.C. § 1201(a)
(2012) is not an aggravated felony.
FOR RESPONDENT: Michael J. Spychalski, Esquire, Dallas, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Levi Thomas, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members
MALPHRUS, Board Member:
In a decision dated May 29, 2018, an Immigration Judge terminated these
proceedings, finding that the respondent is not removable under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony
under section 101(a)(43)(H) of the Act, 8 U.S.C. § 1101(a)(43)(H) (2012)
(an offense relating to the demand for or receipt of ransom). The Department
of Homeland Security (“DHS”) has appealed from that decision. The appeal
will be dismissed.
The respondent is a native and citizen of Mexico who was admitted to the
United States as a conditional permanent resident on April 16, 1998, and
adjusted his status to that of a lawful permanent resident on March 10, 2001.
On July 29, 2009, the respondent was convicted in the Northern District of
Illinois of kidnapping in violation of 18 U.S.C. § 1201(a)(1) and (2) (2006),
for which he was sentenced to a term of imprisonment of 139 months. 1 The
1 An individual is guilty of kidnapping under 18 U.S.C. § 1201(a) if he or she
unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and
holds for ransom or reward or otherwise any person, except in the case of a minor by
the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce,
regardless of whether the person was alive when transported across a State Cite as 27 I&N Dec. 503 (BIA 2019) Interim Decision #3949
504
DHS issued a notice to appear charging that the respondent’s conviction was
for an aggravated felony under section 101(a)(43)(H) of the Act. 2 The
Immigration Judge disagreed and terminated the proceedings.
Section 101(a)(43)(H) of the Act defines an aggravated felony as “an
offense described in section 875, 876, 877, or 1202 of title 18, United States
Code (relating to the demand for or receipt of ransom).” Although 18 U.S.C.
§ 1201 is not included in this list, the DHS contends that we should interpret
kidnapping in violation of that statute to be an aggravated felony because it
is “described in” the other statutes listed in section 101(a)(43)(H).
Under well-settled principles of statutory construction, the “first step in
interpreting a statute is to determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute in the case.”
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Whether a statute is
ambiguous is “determined by reference to the language itself, the specific
context in which that language is used, and the broader context of the statute
as a whole.” Id. at 341. “If the statute is clear and unambiguous ‘that is the
end of the matter, for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.’” K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988) (citations omitted); see also, e.g., Matter of
Valenzuela, 25 I&N Dec. 867, 869 (BIA 2012).
The DHS asserts that the phrase “described in” in section 101(a)(43)(H)
of the Act indicates congressional intent to give the statute a broad reach.
We recognize that the term “described in” is less specific than the phrase
“defined in,” which is employed elsewhere in section 101(a)(43). See
sections 101(a)(43)(B), (C), (F) of the Act; Nieto-Hernandez v. Holder, 592
F.3d 681, 686 (5th Cir. 2009). However, we cannot agree that Congress’ use
of the phrase “described in” allows us to interpret section 101(a)(43)(H) as
including an offense under a Federal statute that is not enumerated there. 3
boundary, or the offender travels in interstate or foreign commerce or uses the mail
or any means, facility, or instrumentality of interstate or foreign commerce in
committing or in furtherance of the commission of the offense[, or]
(2) any such act against the person is done within the special maritime and
territorial jurisdiction of the United States . . . .
2 The DHS also charged the respondent under section 101(a)(43)(F) of the Act as an alien
convicted of a crime of violence. The Immigration Judge concluded that kidnapping in
violation of 18 U.S.C. § 1201 is not a crime of violence because it does not have “as an
element the use, threatened use, or attempted use of physical force,” as required by
18 U.S.C. § 16(a) (2012). The DHS has not challenged that determination on appeal.
3 We need not decide whether an offense under a State or foreign statute that has the same
elements as a crime under one of the Federal statutes enumerated in section 101(a)(43)(H)
of the Act can be considered to be “described in” one of those statutes and therefore be an
aggravated felony.Cite as 27 I&N Dec. 503 (BIA 2019) Interim Decision #3949
505
The DHS primarily relies on the Supreme Court’s statement in Torres
v. Lynch, 136 S. Ct. 1619, 1625–26 (2016), that the word “‘describe’ takes
on different meanings in different contexts,” at times conveying “exactness,”
while at others implying something less precise. According to the DHS, the
Court applied a broad reading of the phrase “described in” to find that the
crime of arson under New York law is an aggravated felony. It therefore
contends that we should similarly interpret section 101(a)(43)(H) to include
kidnapping under § 1201.
In Torres, the Court addressed the aggravated felony definition in section
101(a)(43)(E)(i) of the Act, which includes offenses that are “described in”
any of four enumerated Federal statutes. The Court determined that the State
arson law “matches the federal statute element-for-element with one
exception: The New York law does not require a connection to interstate
commerce.” Id. at 1624. As the Court pointed out, we had ruled that this
“single difference did not matter because the federal statute’s commerce
element is ‘jurisdictional.’” Id.; see also Matter of Bautista, 25 I&N Dec.
616 (BIA 2011), vacated, Bautista v. Att’y Gen. of U.S., 744 F.3d 54, 68 (3d
Cir 2014); Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002). Several
circuit courts agreed that Congress used the broader term “described in” so
as to include State statutes in the aggravated felony definition, even if they
did not contain an interstate commerce element. See Torres v. Holder, 764
F.3d 152, 157 (2d Cir. 2014) (collecting cases), aff’d, Torres, 136 S. Ct. at
1634.
Finding that the question before it could not be determined by the
language of the particular aggravated felony provision alone, the Supreme
Court concluded that it must be decided “with reference to the statutory
context.” Torres, 136 S. Ct. at 1626. Accordingly, considering both the
language and the context of the statute, the Court concurred with the Board
and the circuit courts that the alien was convicted of an aggravated felony
under section 101(a)(43)(E)(i) of the Act. Id. at 1634.
The contextual considerations in this case are very different. Unlike the
Court in Torres, our concern is with the question whether the Federal crime
of kidnapping under 18 U.S.C. § 1201, which is not a statute listed in section
101(a)(43)(H) of the Act, can be interpreted to be an aggravated felony
because it is similarly “described in” the statutes that Congress did enumerate
there. Aside from the phrase “described in,” the DHS does not contend that
the statutory language in section 101(a)(43)(H) of the Act is ambiguous. Nor
does it cite to any legislative history explaining congressional intent as to
this particular aggravated felony provision. Instead, the DHS argues that
because the “central theme” of the statutes listed in section 101(a)(43)(H)
is “threatening to kidnap,” the Federal offense of “kidnapping” should be
considered to be “described in” those statutes.Cite as 27 I&N Dec. 503 (BIA 2019) Interim Decision #3949
506
We have previously rejected a similar argument regarding section
101(a)(43)(N) of the Act, which includes in the aggravated felony definition
“an offense described in paragraph (1)(A) or (2) of section 274(a) (relating
to alien smuggling).” Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA
1999). We held there that the respondent, who had been convicted of aiding
and abetting illegal entry in violation of section 275(a) of the Act, 8 U.S.C.
§ 1325(a) (1988), was not convicted of an aggravated felony, reasoning that
“the plain language of section 101(a)(43)(N) reveals that Congress intended
to specifically reference the offenses listed in sections 274(a)(1)(A) and (2).”
Id. at 720. The United States Court of Appeals for the Fifth Circuit, in whose
jurisdiction this case arises, agreed, stating that a conviction for “violating
[section 275(a) of the Act] is outside the ambit of [section 101(a)(43)(N)],
which is explicitly confined to convictions under [section 274(a)].”
Rivera-Sanchez v. Reno, 198 F.3d 545, 547 (5th Cir. 1999) (per curiam)
(emphasis added)). For similar reasons, we conclude that the language of
section 101(a)(43)(H) of the Act is plain and that the respondent’s
kidnapping offense is not an aggravated felony.
Moreover, in addition to the phrase “described in,” section 101(a)(43)(H)
of the Act contains a “relating to” parenthetical. We have held that such
parentheticals offer a “shorthand description of the referenced criminal
offenses” that gives the reader “guidance as to the nature and extent of the
offenses.” Matter of Ruiz-Romero, 22 I&N Dec. 486, 489 (BIA 1999). To
determine whether a “relating to” parenthetical is “descriptive or limiting,”
we must read it “in context and with a view to its place in the overall structure
of the statute.” Matter of Oppedisano, 26 I&N Dec. 202, 204, 206 (BIA
2013); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015) (recognizing
that although the phrase “relating to” is “broad” and “indeterminate,” the
context of the statute called for a narrower reading (citation omitted)).
Congress used the phrase “relating to the demand for or receipt of
ransom” as the descriptor of the offenses defined in the four Federal statutes
enumerated in section 101(a)(43)(H), not the phrase “relating to kidnapping.”
A conviction for kidnapping under § 1201 does not require a demand for or
receipt of ransom to support a conviction, because the statute requires proof
that a person has been “held for ransom, reward, or otherwise.” United States
v. Osborne, 68 F.3d 94, 100 (5th Cir. 1995) (emphasis added); see also
United States v. Healy, 376 U.S. 75, 82 (1964) (recognizing that § 1201 is
not limited to kidnappings “for pecuniary gain” or even for an “illegal
purpose”). This differs from, for example, 18 U.S.C. § 1202 (2012), one of
the enumerated statutes, which does require that ransom money be delivered
or received in connection with a kidnapping. See, e.g., United States
v. Ortega, 517 F.2d 1006, 1009 (3d Cir. 1975). While some provisions in
the other three statutes listed in section 101(a)(43)(H) also relate to a demand Cite as 27 I&N Dec. 503 (BIA 2019) Interim Decision #3949
507
for ransom in connection with a kidnapping, other parts do not prohibit
conduct associated with kidnapping at all. See 18 U.S.C. §§ 875(d), 876(d),
877 (2012).
If Congress had intended to make kidnapping in violation of § 1201 an
aggravated felony under the Act, it could have included that statute in section
101(a)(43)(H) along with the others that were listed there. See Thompson
v. Goetzmann, 337 F.3d 489, 499 (5th Cir. 2003) (per curiam) (recognizing
“the well-known interpretative canon, expressio unius est exclusio alterius—
‘the expression of one thing implies the exclusion of another’” (citation
omitted)). This is especially true because the crime of kidnapping under
§ 1201 existed at the time Congress enacted section 101(a)(43)(H) in 1994.
See United States v. McInnis, 601 F.2d 1319, 1324 (5th Cir. 1979) (stating
that the Federal kidnapping statute was originally enacted in 1932); see
also Immigration and Nationality Technical Corrections Act of 1994, Pub.
L. No. 103-416, § 222(a), 108 Stat. 4305, 4320–21. Congress could also
have added § 1201 to the offenses listed in section 101(a)(43)(H) of the Act
at a later date, but despite its many amendments to the aggravated felony
provisions since 1994, it has not done so. See Matter of Alvarado-Alvino,
22 I&N Dec. at 720–21.
In interpreting a statute, we may only deviate from its plain language in
“rare and exceptional circumstances” where following the text would lead to
an absurd or bizarre result that is “demonstrably at odds with the intentions
of its drafters.” Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see also
Helvering v. Hammel, 311 U.S. 504, 510–11 (1941) (stating that the
interpretation of a statute may depart from the “literal or usual meaning of its
words where acceptance of that meaning would lead to absurd results or
would thwart the obvious purpose of the statute” (citations omitted)).
Contrary to the DHS’s argument, a “literal reading” of the statute simply does
not give rise to absurd results in this case. Mahosco Corp. v. Silver, 447 U.S.
807, 818 (1980).
In this regard, the DHS emphasizes that some offenses under the statutes
enumerated in section 101(a)(43)(H) of the Act essentially involve a threat
to kidnap, while a conviction under § 1201 requires more serious conduct—
the completed act of kidnapping. Although the DHS may be correct that
someone who is guilty of kidnapping in violation of § 1201 is “clearly more
culpable” than a person convicted of some of the enumerated offenses in
section 101(a)(43)(H), we cannot agree that it “defies logic” to hold that
Congress did not intend to include kidnapping under § 1201 as an aggravated
felony. In any event, the statute is not ambiguous, and we may disregard its
plain language only if applying the text as written would produce a result that Cite as 27 I&N Dec. 503 (BIA 2019) Interim Decision #3949
508
is absurd or bizarre, not where the result may be somewhat illogical. See
Demarest, 498 U.S. at 190–91.
This is not to minimize the abhorrent nature of the crime of kidnapping.
We agree with the DHS that kidnapping is unquestionably a serious offense,
and the respondent’s plea agreement bears out the reprehensible nature of his
conduct. However, many serious offenses are not aggravated felonies under
the immigration laws. The seriousness of the crime here does not give us the
legal authority to extend the scope of the statute beyond the limits provided
by Congress. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 161 (2000).
There are clearly policy considerations that would warrant making
kidnapping under § 1201 an aggravated felony. But it is for Congress to
decide if it should be included. We cannot rewrite the words of the statute
to achieve a favored outcome. See Comm’r v. Lundy, 516 U.S. 235, 252
(1996) (“We are bound by the language of the statute as it is written, and
even if the rule Lundy advocates might ‘accor[d] with good policy,’ we are
not at liberty ‘to rewrite [the] statute because [we] might deem its effects
susceptible of improvement.’” (alterations in original) (citation omitted)).
The language of section 101(a)(43)(H) of the Act and the contextual
considerations in this case do not support the statutory interpretation the DHS
advocates. See Nielsen v. Preap, 139 S. Ct. 954, 964 (2019) (“[N]either the
statute’s text nor its structure supports this argument.”). We cannot read
ambiguity into a statute that is not there. See Dodd v. United States, 545 U.S.
353, 357 (2005) (“We ‘must presume that [the] legislature says in a statute
what it means and means in a statute what it says there.’” (citation omitted)).
We are therefore constrained to conclude that the crime of kidnapping under
§ 1201 is not an aggravated felony. Accordingly, the DHS’s appeal will be
dismissed.
ORDER: The appeal of the Department of Homeland Security is
dismissed.