Xiong v. I.N.S., 97-3402
| Decision Date | 12 April 1999 |
| Docket Number | No. 97-3402,97-3402 |
| Citation | 173 F.3d 601 |
| Parties | Chue XIONG, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Derrick M. Ford, Soo J. Choi, Northwestern University Legal Clinic, Christopher J. Greeno (argued), John R. O'Neil, Kirkland & Ellis, Chicago, IL, for Petitioner-Appellant.
Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Mary J. Candaux, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, Nelda Reyna (argued), Department of Justice, Civil Division, Immigration
Litigation, Washington, DC, for Respondent-Appellee.
Before BAUER, DIANE P. WOOD, and EVANS, Circuit Judges.
On May 4, 1995, Chue Xiong ("Xiong") was sentenced to five years of imprisonment for violating Wis. Stat. § 948.02(2), which makes it a Class BC felony for someone to have "sexual contact or sexual intercourse with a person who has not attained the age of 16 years." Wis. Stat. § 948.02(2). On August 5, 1996, an immigration judge ("IJ") held that Xiong had been convicted of a crime of violence, and that he was, therefore, deportable. On August 21, 1997, the Board of Immigration Appeals ("BIA") agreed. We vacate the deportation order and remand for further proceedings.
Xiong is a legal permanent resident of the United States. He has lived in the U.S. since June 12, 1987, when he and his family entered the country as refugees seeking protection from persecution by the Laotian government.
On January 24, 1995, Xiong was charged with second degree sexual assault of a child under a Wisconsin statute that states: "[w]hoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class BC felony." Wis. Stat. § 948.02(2). "Sexual contact" is defined as:
(a) Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant [or]
(b) Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant. Wis. Stat. § 948.01(5).
"Sexual intercourse" is defined as:
vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required. Wis. Stat. § 948.01(6).
According to the criminal complaint, Xiong and his girlfriend of seven weeks, N.L.G., engaged in sexual intercourse on November 4, 1994. N.L.G. was fifteen years old at the time. The complaint also states that both Xiong and N.L.G. told the police that they undressed themselves and that Xiong wore a condom. Xiong informs us that he was eighteen years old at the time of the incident. On May 4, 1995, after Xiong pled no contest, the Outagamie County Wisconsin Circuit Court entered a judgment of conviction, and sentenced Xiong to five years of imprisonment.
On June 18, 1996, soon after Xiong was released on parole, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause ("OSC"), charging that Xiong's violation of Wisconsin law constituted a crime of violence, and was thus an aggravated felony under Immigration and Nationality Act ("INA") § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for the purpose of determining deportability under INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (now INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)). At his deportation hearing on August 5, 1996, Xiong admitted the allegations in the OSC but contested the proposition that he had been convicted In this Court, Xiong once again argues that he is not deportable because his offense does not constitute an aggravated felony. In response, the INS argues that we lack jurisdiction to review Xiong's deportation order, that Xiong is deportable as charged, and that even if Xiong's violation of Wisconsin law does not constitute a crime of violence, it constitutes sexual abuse of a minor, which is also an aggravated felony, INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).
of a crime of violence. The IJ disagreed with Xiong, and ordered that he be deported to Laos. On August 21, 1997, the BIA dismissed Xiong's appeal and entered a final deportation order.
Under the INA "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (previously INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2) (A)(iii)). Furthermore, according to the transitional rules set out by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), when a final order of deportation is entered after October 30, 1996, "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed ... [an aggravated felony]." IIRIRA § 309(c)(4), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), set out at 8 U.S.C. § 1101, Historical and Statutory Notes. This transitional rule is substantially the same as the rule set forth in the repealed INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10), and the new INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). Notwithstanding the unreviewability of cases involving deportation of aggravated felons, however, this Court does have jurisdiction to determine whether it has jurisdiction; that is, we have jurisdiction to determine whether Xiong has been convicted of an aggravated felony. Yang v. I.N.S., 109 F.3d 1185, 1192 (7th Cir.1997) (). Therefore, in this case, both jurisdiction and the merits turn on whether Xiong has committed an aggravated felony.
The list of aggravated felonies includes, inter alia, "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment imposed ... is at least 5 years." INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). The term "crime of violence" means:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 16.
Since second degree sexual assault of a child under Wis. Stat. § 948.02(2) does not have "as an element the use, attempted use, or threatened use of physical force," 18 U.S.C. § 16(a), only § 16(b) is relevant to this case.
The IIRIRA amended the definition of "aggravated felony" after Xiong's deportation hearing but before the BIA's decision. Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Most significantly for our purposes, the IIRIRA added sexual abuse of a minor to the list of aggravated felonies. IIRIRA § 321(a)(1), 8 U.S.C. § 1101(a)(43)(A).
We begin by considering whether Xiong has been convicted of a crime of violence, as charged by the OSC. This endeavor requires us to determine whether Xiong's violation of Wis. Stat. § 948.02(2) "by its nature, involve[d] a substantial Our starting point is United States v. Shannon, 110 F.3d 382 (7th Cir.1997) (en banc), in which we considered whether Shannon's violation of Wis. Stat. § 948.02(2) constituted a crime of violence under the Career Offender provision of the Sentencing Guidelines, which subjects defendants to enhanced penalties for repeatedly committing crimes of violence, see U.S.S.G. § 4B1.1. Finding that Wis. Stat. § 948.02(2) "covers a lot of ground, and [that] some of it may not be crime of violence ground," we concluded that a violation of the statute is not, per se, a crime of violence. Shannon, 110 F.3d at 387. Nonetheless, the IJ proceeded directly from the observation that Xiong's "offense [wa]s essentially that of a statutory rape" to the conclusion that Xiong had committed a crime of violence. In the Matter of Xiong, Oral Decision of IJ at 2-3 (Aug. 5, 1996). This reasoning is directly at odds with Shannon. When the statutory definition of a criminal offense encompasses conduct that does not constitute a crime of violence as well as conduct that does constitute a crime of violence, an immigration judge may not simply categorize all conduct covered by the offense as crime of violence conduct. 1 Our deference to the IJ cannot overcome this flaw in his reasoning.
risk that physical force against the person or property of another [would] be used." 18 U.S.C. § 16(b). We review the BIA's determination de novo while deferring to its interpretation of the statute it administers. Marquez v. I.N.S., 105 F.3d 374, 378 (7th Cir.1997).
Our conclusion that the IJ was unjustified in limiting his inquiry to the language of the statute raises another question: what else should the IJ have considered? Supreme Court case law suggests that the IJ could consider only the statute's language and the charging papers. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990) (...
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