Sutherland v. Reno

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-4145
• Citation: 228 F.3d 171
• Parties: (2nd Cir. 2000) FELIX SUTHERLAND, Petitioner, v. JANET RENO, Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Second Circuit

Page 171

228 F.3d 171 (2nd Cir. 2000)

FELIX SUTHERLAND, Petitioner, v. JANET RENO, Attorney General of the United States, Respondent.

Docket No. 99-4145

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Submitted: July 12, 2000

Decided: September 14, 2000

Amended: September 20, 2000

Appeal from an order of the Board of Immigration Appeals affirming that petitioner was eligible for removal under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of domestic violence based upon his Massachusetts conviction for indecent assault and battery on a person over the age of fourteen.

Affirmed.

Robert D. Kolken, Sacks & Kolken, Buffalo, NY (Eric W. Schultz, on the brief), for petitioner.

Diogenes P. Kekatos, Assistant United States Attorney for the Southern District of New York, for Mary Jo White, United States Attorney for the Southern District of New York (Jeffrey Oestericher, Assistant United States Attorney for the Southern District of New York, on the brief), for respondent.

Before: WALKER, POOLER, and SOTOMAYOR, Circuit Judges.

AMENDED OPINION

SOTOMAYOR, Circuit Judge:

Felix Sutherland, a citizen of Trinidad and a permanent resident of the United States, petitions this Court for review of an order of the Board of Immigration Appeals ("BIA") affirming that he is eligible for removal under 8 U.S.C. §1227(a)(2)(E)(i) as an alien convicted of a crime of domestic violence based upon his July 1998 conviction in Massachusetts for indecent assault and battery on a person over the age of fourteen. Petitioner claims that his conviction does not satisfy either of the two requisite elements for a "crime of domestic violence" under 8 U.S.C. §1227(a)(2)(E)(i). Specifically, he contends that (1) his offense was not a "crime of violence" within the meaning of 18 U.S.C. § 16(b); and (2) his victim was not protected from his acts by the domestic or family violence laws of Massachusetts. For the reasons discussed, we conclude that petitioner is removable under 8 U.S.C. §1227(a)(2)(E)(i) as an alien who was convicted of a crime of domestic violence and affirm the BIA's decision.

BACKGROUND

Petitioner, a citizen of Trinidad, entered this country as a lawful permanent resident on January 20, 1992. In April 1998, petitioner was charged with indecent assault and battery on a person over the age of fourteen in violation of Mass. Gen. Laws ch. 265, §13H (1990),¹ for allegedly reaching down the pajama pants of his 19-year-old stepdaughter, who was residing in his household at the time of the incident. On July 27, 1998, petitioner pleaded guilty to the charge and was sentenced to eleven months' incarceration, suspended, and was placed on probation for a term of three years.²

Based on this conviction, the Immigration and Naturalization Service ("INS") commenced removal proceedings against petitioner on August 24, 1998, charging that he was removable under 8 U.S.C. § 1227(a)(2)(E)(i). At his removal hearing, petitioner admitted that he was convicted under Mass. Gen. Law ch. 265, §13H, but denied that his conviction was for a "crime of domestic violence" as defined under 8 U.S.C. §1227(a)(2)(E)(i). On January 20, 1999, Immigration Judge John B. Reid ("IJ") rejected petitioner's argument and determined that he was removable under 8 U.S.C. §1227(a)(2)(E)(i) because his §13H conviction constituted a crime of domestic violence.

Reviewing the matter on appeal, the BIA noted that an offense does not fall within the definition of a "crime of domestic violence" under 8 U.S.C. §1227(a)(2)(E)(i) unless (1) the crime is a "crime of violence" as defined in 18 U.S.C. § 16, and (2) the person against whom the crime was committed was a "protected person" within the meaning of §1227(a)(2)(E)(i). Applying its traditional categorical approach to criminal convictions, the BIA determined that (1) petitioner's crime constituted a "crime of violence" because the crime, as defined by Massachusetts case law, requires an intentional touching that is both indecent and nonconsensual and, therefore, involves a substantial risk that physical force may be used, and (2) petitioner's victim was a "protected person" under Massachusetts law. The BIA therefore affirmed the IJ's decision and dismissed petitioner's appeal on August 27, 1999.

Petitioner now appeals from the BIA's decision pursuant to 8 U.S.C. § 1252(a)(1).

DISCUSSION

I. Standard of Review

When reviewing an agency determination, federal courts must accord substantial deference to an agency's interpretation of the statutes it is charged with administering. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987) (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)); Michel v. INS, 206 F.3d 253, 260 (2d Cir. 2000). In such circumstances, where the relevant statutory provision is silent or ambiguous, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, 467 U.S. at 843-44.

In contrast to situations where a federal agency is interpreting a statute it is charged with administering, "courts owe no deference to an agency's interpretations of state or federal criminal laws, because the agency is not charged with the administration of such laws." Michel, 206 F.3d at 262 (opinion of Sotomayor, J.).³ In Michel, this Court adopted the position of the Fifth Circuit that "where the BIA is interpreting [a provision] of the [Immigration and Naturalization Act ("INA")], Chevron deference is warranted, but where the BIA is interpreting state or federal criminal laws, we must review its decision de novo." Id. (citing Hamden v. INS, 98 F.3d 183, 185 (5th Cir. 1996) ("We must uphold the BIA's determination [of] what conduct constitutes moral turpitude under the INA if it is reasonable. However, a determination of the elements of a [state] crime . . . for purposes of deportation pursuant to the INA is a question of law, which we review de novo.")).

Notwithstanding this Court's ruling in Michel, the Government adopts the remarkable position that "[t]o the extent the BIA's determination required the examination of federal and state criminal law, [] the need for deference to the BIA's judgment is not diminished." Respondent's Br. at 16. Apparently, the Government regards this Court's statement of the standard of review in Michel as nonbinding dictum. We disagree. See Michel, 206 F.3d at 263 (holding "upon a de novo review of the relevant criminal statute . . . that all violations of New York Penal Law § 165.40 are, by their nature, morally turpitudinous").

In support of its position, the Government cites Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), to illustrate an instance where "this Court has deferred to the BIA's administration of the INA, even at the expense of departing from its own contrary interpretations of federal criminal statutes." Respondent's Br. at 17. To be sure, in Aguirre, this Court departed from its earlier interpretation of a federal criminal statute. See Aguirre, 79 F.3d at 318 (abandoning the statutory construction adopted in Jenkins v. INS, 32 F.3d 11 (2d Cir. 1994)). But the Aguirre panel (joined by the Jenkins panel) voluntarily abandoned its earlier construction of the relevant statute in the interest of nationwide uniformity. See Aguirre, 79 F.3d at 317 ("The issue here is not whether courts must take direction from an agency ruling, but whether they may voluntarily accept such guidance for the purpose of achieving a satisfactory statutory interpretation. . . . We have concluded that the interests of nationwide uniformity outweigh our adherence to Circuit precedent in this instance.") (citations and internal quotation marks omitted). In sum, nothing in Aguirre lends support to the notion that this Court is bound to defer to the BIA where the BIA has interpreted a criminal statute. To the contrary, Michel explicitly holds that the standard of review is such cases is de novo because the INS is not charged with the administration of such laws. See Michel, 206 F.3d at 262. Therefore, to the extent this Court must interpret Massachusetts or federal criminal laws, we review those aspects of the BIA's decision de novo. See id.

II. Merits

In the instant case, the BIA determined that petitioner was eligible for removal under 8 U.S.C. §1227(a)(2)(E)(i), which provides in relevant part that:

(a) Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . .

(2)(E)(i) Any alien who at any time after admission is convicted of a crime of domestic violence . . . . For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of Title 18) . . . by any [] individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

8 U.S.C. §1227(a)(2)(E)(i). As a threshold matter, we agree with the BIA that the determination of whether petitioner's crime constituted a "crime of domestic violence" under §1227(a)(2)(E)(i) involves a two-pronged analysis: (1) whether petitioner's crime was a "crime of violence" as defined by 18 U.S.C. §16; and (2) whether petitioner's victim was a "protected person" within the meaning of §1227(a)(2)(E)(i).

A. "Crime of Violence"

With respect to the first prong of the §1227(a)(2)(E)(i) analysis, 18 U.S.C. § 16 defines a "crime of violence" as follows:

(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...