492 F.3d 156 (2nd Cir. 2007), 05-0010, Mizrahi v. Gonzales

Docket Nº:05-0010-ag.
Citation:492 F.3d 156
Party Name:Alon MIZRAHI, Petitioner, v. Alberto R. GONZALES,[*]Attorney General, Respondent.
Case Date:June 27, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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492 F.3d 156 (2nd Cir. 2007)

Alon MIZRAHI, Petitioner,


Alberto R. GONZALES, [*] Attorney General, Respondent.

No. 05-0010-ag.

United States Court of Appeals, Second Circuit.

June 27, 2007

Argued: March 30, 2006.

Sarita Kedia (Julie R. Jones, on the brief), Law Offices of Sarita Kedia, New York, NY, for Petitioner.

David S. Rubenstein, Assistant United States Attorney (Ramon E. Reyes, Jr., on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Respondent.

Before: NEWMAN, KATZMANN, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge.

Israeli national Alon Mizrahi petitions for review of a December 17, 2004 ruling by the Board of Immigration Appeals ("BIA") ordering him removed from the United States on the ground that, as an alien convicted of "a violation of ... any law ... relating to a controlled substance," he is rendered inadmissible to this country by Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act ("INA") (codified at 8 U.S.C. § 1182(a)(2)(A)(i)(II)). See In re Alon Mizrahi, No. A76 145 735 (BIA Dec. 17, 2004), aff'g No. A76 145 735 (Immig. Ct. N.Y. City Dec. 12, 2003). The conviction at issue was the result of Mizrahi's 2002 New York State guilty plea to a misdemeanor offense, fourth-degree criminal solicitation of the sale of drugs, conduct proscribed by N.Y. Penal Law § 100.05(1) (McKinney 2004). Mizrahi contends that, because N.Y. Penal Law § 100.05(1) generically proscribes the solicitation of any felony crime, it cannot categorically qualify as a "law ... relating to a controlled substance" under 8 U.S.C. § 1182(a)(2)(A)(i)(II). We disagree when, as in Mizrahi's case, the solicitation has a

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drug crime as its specifically intended objective. Accordingly, we deny the petition for review.

I. Factual Background

A. Mizrahi's New York State Conviction for Criminal Solicitation

Alon Mizrahi entered the United States as a 20-year-old visitor in 1989 and became a lawful permanent resident of this country in 2000. In 2001, Mizrahi was indicted in New York County together with fifteen other persons for conspiring to possess and distribute drugs. Mizrahi disposed of this charge by pleading guilty on April 2, 2002, to misdemeanor criminal solicitation in the fourth degree. See N.Y. Penal Law § 100.05(1). Pursuant to his plea agreement, Mizrahi admitted telephonically soliciting the sale of controlled substances--specifically, ecstasy tablets, hashish, and marijuana--from one of his co-defendants. The court sentenced him to three years' probation.

B. Mizrahi's Immigration Proceedings

Sometime after this conviction, Mizrahi traveled to Israel. Upon his return to the United States, federal immigration authorities at John F. Kennedy International Airport advised Mizrahi that he was ineligible for admission. On March 14, 2003, the Immigration and Naturalization Service ("INS")1 initiated formal removal proceedings on the ground that Mizrahi's state solicitation conviction rendered him inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II). Mizrahi moved to terminate the proceedings, arguing that the statute underlying his conviction, N.Y. Penal Law § 100.05(1), did not qualify as a "law ... relating to a controlled substance," under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Alternatively, he applied for a discretionary waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h).

On December 12, 2003, Immigration Judge ("IJ") Patricia A. Rohan denied Mizrahi's motion and ordered his removal. The IJ concluded that Mizrahi's first argument was foreclosed by the BIA's precedential decision Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (upholding deportation of alien convicted under generic Arizona solicitation statute for soliciting drug possession), and that he was ineligible for § 1182(h) relief.

Mizrahi appealed to the BIA, which, in an unpublished order, approved the IJ's reliance on Beltran and affirmed the order of removal. Mizrahi then timely petitioned for review by this court. His petition challenges only his inadmissibility pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II).

II. Discussion

A. Jurisdiction and Standard of Review

Under the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 231, this court lacks jurisdiction to review "any final order of removal against an alien who is removable by reason of having committed [certain drug and aggravated felony] offense[s]," except insofar as review entails "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(C)-(D). Whether a conviction qualifies as a removable offense

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under a stated provision of the INA is a question of law. See Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir. 2007).

To the extent that legal question requires us to construe state criminal law, we owe no deference to the BIA; our review is de novo. See Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir. 2006). To the extent the question requires us to construe a provision of the INA, however, because the administration of that statute is entrusted to the BIA, our review follows the two-step process outlined in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

At Chevron step one, we consider de novo whether Congress has clearly spoken to the question at issue. "If the intent of Congress is clear, 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." Id. at 842-43, 104 S.Ct. 2778; accord Chauffeur's Training Sch., Inc. v. Spellings, 478 F.3d 117, 125 (2d Cir.2007). To ascertain Congress's intent, we begin with the statutory text because if its language is "unambiguous," no further inquiry is necessary. Robinson v. Shell Oil Co., 519 U.S. 337, 340-41, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); accord Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir.2005). We presume that Congress "says in a statute what it means and means in a statute what it says." Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). If the statutory language is ambiguous, however, we "resort first to canons of statutory construction, and, if the [statutory] meaning remains ambiguous, to legislative history," Daniel v. Am. Bd. of Emergency Med., 428 F.3d at 423 (internal citations omitted), to see if these "interpretive clues" clearly reveal Congress's intent, General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 586, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004).

If we determine that "Congress has not directly addressed the precise question at issue," we proceed to Chevron step two, which instructs us to defer to an agency's interpretation of the statute, so long as it is "reasonable." Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 843-44, 104 S.Ct. 2778; see, e.g., Michel v. INS, 206 F.3d 253, 262-63 (2d Cir.2000) (deferring to BIA interpretation of "moral turpitude"); Zhang v. Slattery, 55 F.3d 732, 749-50 (2d Cir.1995) (deferring to BIA interpretation of "persecution on account of ... political opinion"). While unpublished BIA decisions do not constitute agency interpretations of law warranting Chevron deference, see Rotimi v. Gonzales, 473 F.3d 55, 57 (2d Cir.2007), where, as in this case, the challenged unpublished decision relies on a binding published decision, Chevron deference will extend to that earlier decision's reasonable resolution of statutory ambiguity.

B. Mizrahi's Inadmissibility Pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)

1. The Statutory Text

The INA provision at issue in this case states in relevant part:

[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i)(II).

The plain language indicates Congress's intent to limit the statute's reach in two

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important respects. First, its focus is limited to "controlled substances," not other contraband or proscribed conduct. Second, it applies only if the "law or regulation" violated relates to controlled substances. This second limitation effectively demands a categorical identification of the applicable violations of law. See Vargas-Sarmiento v. United States Dep't of Justice, 448 F.3d 159, 166 (2d Cir. 2006) (observing that categorical approach focuses on "the minimum criminal conduct necessary to sustain a conviction" rather than on "the singular circumstances of an individual petitioner's crimes" (internal quotation marks omitted)); Kamagate v. Ashcroft, 385 F.3d 144, 152 (2d Cir. 2004) (and cases cited therein).

In other respects, however, the statutory language indicates Congress's intent to sweep broadly, applying to a violation of "any law or regulation," whether state, federal, or foreign, "relating to a controlled substance." 8 U.S.C.§ 1182(a)(2)(A)(i)(II) (emphases added). Indeed, the violation need not be reflected in an actual criminal conviction; it can be evidenced by an alien's admission to a violation of law relating to a controlled substance or simply to acts constituting the essential elements of such a violation. Further, as the Supreme Court has recognized, Congress's use of the phrase "relating to" in federal legislation generally signals its expansive intent. See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)...

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