Cite as 26 I&N Dec. 202 (BIA 2013) Interim Decision #3793
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Matter of Rocco OPPEDISANO, Respondent
Decided October 25, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of unlawful possession of ammunition by a convicted felon in violation of
18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).
FOR RESPONDENT: Shari L. Astalos, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Timothy Maguire, Senior
Attorney
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board
Members.
PAULEY, Board Member:
In a decision dated March 18, 2013, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien
convicted of an aggravated felony under section 101(a)(43)(E)(ii) of the
Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2006). She therefore denied his
motion to terminate the proceedings and ordered him removed from the
United States. The respondent has appealed from that decision. The
Department of Homeland Security has filed a brief in opposition to the
appeal. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Italy who was admitted to the
United States as a lawful permanent resident on September 9, 1973. He
was convicted on January 6, 2012, in the United States District Court for
the Eastern District of New York, of unlawful possession of ammunition by
a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)Cite as 26 I&N Dec. 202 (BIA 2013) Interim Decision #3793
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(2006).1
The respondent was sentenced to a term of probation for 5 years
and was fined $15,000.
The Immigration Judge determined that the respondent’s conviction for
unlawful possession of ammunition in violation of 18 U.S.C. § 922(g) is for
an aggravated felony under the Act. The respondent contends that the
Immigration Judge erred in reaching this conclusion without making an
independent analysis of section 101(a)(43)(E)(ii) of the Act and that she
deprived him of due process because she gave no rational explanation for
her decision. The respondent also argues that the Immigration Judge erred
in not applying the rule of lenity in interpreting the statute.
II. ANALYSIS
Under section 101(a)(43)(E)(ii) of the Act, the definition of an
“aggravated felony” includes an offense described in “section 922(g)(1) . . .
of title 18, United States Code (relating to firearms offenses).” The
respondent contends that the parenthetical “relating to firearms offenses” in
section 101(a)(43)(E)(ii) is a limiting clause, which expressly restricts the
offenses included to those involving firearms. He therefore asserts that his
possession of ammunition offense is not an aggravated felony under the
Act.
In Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999), we examined
the parenthetical “relating to alien smuggling” in the aggravated felony
definition at section 101(a)(43)(N) of the Act. Following a review of the
plain statutory language, the procedural history of the provision, and the
relevant case law, we concluded that the parenthetical was descriptive,
rather than limiting. Id. at 489. Noting that numerous other aggravated
felony provisions in section 101(a)(43) referenced statutes outside the
Act, we stated that their parentheticals, including the one in section
101(a)(43)(E)(ii), provided a “shorthand description of the referenced
criminal offenses” that gave the reader “guidance as to the nature and
1 According to 18 U.S.C. § 922(g)(1), it is unlawful for any person
who has been convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year;
. . .
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.
Pursuant to 18 U.S.C. § 924(a)(2), the penalty for a conviction under § 922(g) is a fine,
imprisonment for not more than 10 years, or both.Cite as 26 I&N Dec. 202 (BIA 2013) Interim Decision #3793
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extent of the offenses referenced.” Id. We therefore concluded that rather
than limiting the “range of . . . offenses that may be regarded as an
aggravated felony,” the parentheticals “simply provide a generic point of
reference.” Id. at 490. By that general observation, we did not, however,
intend to obviate the need for a section-by-section analysis of the
parentheticals in section 101(a)(43) to determine whether the language in
each is descriptive or limiting.
The respondent acknowledges our decision in Matter of Ruiz-Romero
but argues that it is not dispositive because our analysis in that case focused
on section 101(a)(43)(N) of the Act. He contends that an analysis of
section 101(a)(43)(E)(ii) is required. We agree and will examine the
“relating to firearms offenses” parenthetical in that section.
When interpreting a statute, we should be guided by common sense,
taking into consideration Congress’ intention to enact “a symmetrical and
coherent regulatory scheme.” FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000); see also Robinson v. Shell Oil Co., 519 U.S. 337,
340 (1997); Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771, 775
(BIA 2012). We must therefore read the parenthetical to section
101(a)(43)(E)(ii) in context and with a view to its place in the overall
structure of the statute. See Gourche v. Holder, 663 F.3d 882, 885 (7th Cir.
2011) (finding that the language and structure of section 237(a)(3)(B)(iii) of
the Act showed Congress’ intent that the statute’s parenthetical would
“provide a convenient shorthand description” of the removal ground);
United States v. Salas-Mendoza, 237 F.3d 1246, 1247 (10th Cir. 2001)
(considering the context of the parenthetical in section 101(a)(43)(N) of the
Act in finding that it is descriptive rather than limiting); United States
v. Monjaras-Castaneda, 190 F.3d 326, 330 (5th Cir. 1999) (same).
We note first that courts interpreting the nature of “relating to”
parentheticals have found that they are “widely understood to have a
descriptive import.” United States v. Harrell, 637 F.3d 1008, 1012 (9th
Cir. 2011) (and cases cited therein); see also Monjaras-Castaneda, 190
F.3d at 330. “The phrase ‘relating to’ does not itself imply exclusivity;
rather, it plainly reflects a descriptive character.” Harrell, 637 F.3d at
1010–11. The Board and courts of appeals “have consistently ruled that the
phrase ‘relating to’ has an expansive meaning.” Matter of Gruenangerl,
25 I&N Dec. 351 (BIA 2010).
By contrast, when Congress intends for a parenthetical to have a
limiting effect, it generally uses language that is clear and distinct, with
words such as “except,” “if,” and “but not including.” See Gourche, 663
F.3d at 885–86 (comparing such “restrictive or conditional language” to the
“descriptive shorthand” of a “relating to” parenthetical); see also Harrell,
637 F.3d at 1011 (“Congress’ use of clear and distinct language when itCite as 26 I&N Dec. 202 (BIA 2013) Interim Decision #3793
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intends a limiting effect underscores the descriptive character of the
‘relating to’ parenthetical.”); United States v. Galindo-Gallegos, 244 F.3d
728, 734 (9th Cir. 2001) (stating that Congress has “used a perfectly clear
approach to articulate a limiting rather than descriptive parenthetical”).
For example, in considering whether the parentheticals in section
101(a)(43) of the Act are descriptive or restrictive, a number of circuit
courts have noted that Congress clearly demonstrated its ability to exclude
some specific offenses from the aggravated felony definition with the use
of restrictive or limiting language in sections 101(a)(43)(F) and (J). Patel
v. Ashcroft, 294 F.3d 465, 472 (3d Cir. 2002); Galindo-Gallegos, 244 F.3d
at 734; Salas-Mendoza, 237 F.3d at 1248; Monjaras-Castaneda, 190 F.3d
at 330. In each of those cases, the courts concluded that the “relating to
alien smuggling” parenthetical in section 101(a)(43)(N) was clearly
descriptive and not restrictive, as did every other circuit court that has
considered that issue. See also Guo Xing Song v. U.S. Att’y Gen., 516 F.
App’x 894 (11th Cir. 2013); Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th
Cir. 2002); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000).
This conclusion was based in large part on the courts’ examination of
the context in which the parenthetical appeared in the statute. As we noted
in Matter of Ruiz-Romero, 22 I&N Dec. at 489, the aggravated felony
provisions include numerous references to statutes that are not in the Act.
Several courts agreed that “[w]ithout any descriptions of what the section
numbers refer to, determining whether an offense qualifies as an aggravated
felony would be a laborious process.” Salas-Mendoza, 237 F.3d at 1247;
see also Galindo-Gallegos, 244 F.3d at 734 (finding that the “function of
the descriptive language appears to be to make reading the statute easier”);
Monjaras-Castaneda, 190 F.3d at 330. This led them to conclude that the
“relating to” parentheticals in section 101(a)(43) of the Act, including the
one in section 101(a)(43)(E)(ii), are descriptive and are “intended only as a
general illustration of the referenced criminal statutes.” Patel, 294 F.3d at
471; see also Gourche, 663 F.3d at 885 (noting that “[t]hese descriptive
parentheticals are different from other subparagraphs of the aggravated
felony definition that use parentheticals explicitly to limit those offenses
that may constitute an aggravated felony”).
The aggravated felony defined in section 101(a)(43)(E)(ii) of the Act
specifically references 18 U.S.C. § 922(g), the statute under which the
respondent was convicted, as well as several others that also criminalize
acts involving both firearms and ammunition. 18 U.S.C. §§ 922(j), (n),
924(b). If the parenthetical was meant to limit the aggravated felony
definition, Congress could have drafted it to state that it included “only
firearms offenses” or “firearms but not ammunition offenses.” See
Gourche, 663 F.3d at 886 (noting that the “absence of limiting language inCite as 26 I&N Dec. 202 (BIA 2013) Interim Decision #3793
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the parenthetical description of [section 237(a)(3)(B)(iii) of the Act] shows
that Congress intended the parenthetical as a descriptive shorthand”); Patel,
294 F.3d at 472 (stating that “Congress used restrictive or limiting language
where it intended a parenthetical to limit or refine a given provision”). A
common sense reading of the Act therefore leads us to conclude that the
“relating to” parenthetical in section 101(a)(43)(E)(ii) simply provides a
“shorthand description” of the offenses included in the aggravated felony
definition, rather than confining it to firearms offenses to the exclusion of
offenses involving only ammunition. Matter of Ruiz-Romero, 22 I&N Dec.
at 489.
Finally, we point out that the possession of ammunition is integrally
associated with firearms and their use. See 18 U.S.C. § 921(a)(17)(A)
(2006) (stating that the “term ‘ammunition’ means ammunition or cartridge
cases, primers, bullets, or propellent powder designed for use in any
firearm”). This interconnection between ammunition and firearms supports
our conclusion that a crime involving ammunition is one “relating to
firearms offenses.” Cf. Patel, 294 F.3d at 473 (finding it “obvious” that the
“offense of ‘harboring an alien’ does relate to alien smuggling”);
Monjaras-Castaneda, 190 F.3d at 330.
We recognize that the United States Court of Appeals for the Second
Circuit, in whose jurisdiction this case arises, declined to follow the Fifth
Circuit’s reasoning in Monjaras-Castaneda for its conclusion that the
parenthetical language in section 101(a)(43)(N) was descriptive rather than
limiting. Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004). However,
the Second Circuit was evaluating whether a different parenthetical in
section 101(a)(43)(M)(ii) of the Act, “relating to tax evasion,” included the
crime of “defeat” of a tax. Furthermore, the court did not find it necessary
to determine whether the parenthetical had a descriptive or restrictive
meaning, finding instead that “whatever differences there may be between
them, ‘defeat [of a] tax’ is at least ‘relat[ed] to tax evasion.’” Id. at 151.
Because the Second Circuit’s conclusion is not inconsistent with ours, we
do not consider its decision in Evangelista to be contrary authority.
Having examined the “relating to firearms offenses” parenthetical in
section 101(a)(43)(E)(ii) of the Act, we conclude that Congress intended it
only to be descriptive of the types of offenses that are referenced in
§ 922(g), rather than a limitation that excludes ammunition offenses from
the aggravated felony definition.
The respondent asserts that the Immigration Judge erred by failing to
apply the rule of lenity in interpreting section 101(a)(43)(E). This rule,
which provides that ambiguities in statutes must be construed in an alien’s
favor, is a doctrine of “last resort” to be employed only after traditional
means of statutory interpretation have failed to resolve any ambiguities.Cite as 26 I&N Dec. 202 (BIA 2013) Interim Decision #3793
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Patel, 294 F.3d at 473 n.9 (stating that the “rule only applies if there is a
‘grievous ambiguity or uncertainty in the statute’” (quoting Muscarello
v. United States, 542 U.S.125, 138 (1998))); Ruiz-Almanzar v. Ridge, 485
F.3d 193, 198 (2d Cir. 2007); see also Matter of Rotimi, 24 I&N Dec. 567,
576 n.5 (BIA 2008).
We have interpreted the parenthetical to section 101(a)(43)(E)(ii) as
descriptive because it clearly encompasses the criminal statutory provisions
that it references, which involve both firearms and ammunition offenses.
Our conclusion is informed by the principles of statutory interpretation and
is supported by significant case law. Because we find that the meaning of
the phrase “relating to” can be sufficiently discerned to resolve this case,
we conclude that the rule of lenity does not apply. See Kawashima
v. Holder, 132 S. Ct. 1166, 1176 (2012); see also Evangelista, 359 F.3d at
151 (finding there was no ambiguity in the parenthetical “relating to tax
evasion” in section 101(a)(43)(M)(ii) of the Act); Monjaras-Castaneda,
190 F.3d at 330 (finding use of the rule of lenity to be unwarranted because
the meaning of section 101(a)(43)(N) was plain). Accordingly, the
respondent’s appeal will be dismissed.2
ORDER: The appeal is dismissed.
2 The respondent also argues that he was deprived of due process because of the manner
in which the Immigration Judge decided whether the parenthetical “relating to firearms
offenses” is descriptive or limiting in nature. We find this argument to be without merit.
The Immigration Judge gave the respondent ample opportunity, through counsel, to argue
the question, both orally and in writing. To the extent that the respondent contends that
the Immigration Judge did not decide, in the first instance, how to characterize the section
101(a)(43)(E)(ii) parenthetical, he has suffered no prejudice because, upon our de novo
review of this legal issue, we find that the parenthetical is descriptive.