Bautista v. Attorney Gen. of U.S., 11-3942
| Decision Date | 28 February 2014 |
| Docket Number | No. 11-3942,11-3942 |
| Parties | ROBERT BAUTISTA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Raymond G. Lahoud, Esq.
Baurkot & Baurkot
Counsel for Petitioner
Jacob A. Bashyrov, Esq.
Lindsay B. Glauner, Esq.
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Sarah Maloney, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
Counsel for Respondent
Petitioner Robert Bautista, a legal permanent resident, was ordered removed from the United States by an immigration judge ("IJ"). The IJ found him removable because he is inadmissible under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA") as an alien convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ also found him ineligible for cancellation of removal under § 240A(a) of the INA because his New York conviction for attempted arson constituted an aggravated felony. 8 U.S.C. § 1229b(a). Bautista appealed to the Board of Immigration Appeals ("BIA"), which dismissed his appeal. The BIA agreed that the arson conviction fell within the relevant definition of an aggravated felony under § 101(a)(43) of the INA. 8 U.S.C. § 1101(a)(43).
Bautista filed a timely petition for review in this Court. We will grant the petition because the New York attempted arson conviction is not an aggravated felony in respect to collateral immigration consequences under the INA. Applying the categorical approach, as we must, the New York statute under which Bautista was convicted does not match the elements of 18 U.S.C. § 844(i), the corresponding federal statute under the INA. 8 U.S.C. § 1101(a)(43)(E)(i). A conviction under that New York arson statute cannot qualify as an aggravated felony because it lacks the jurisdictionalelement of § 844(i), which the Supreme Court has found to be a critical and substantive element of that arson offense. We vacate the BIA ruling and remand to the BIA for further consideration in light of this opinion.
Bautista is a citizen of the Dominican Republic, where he was born in 1974. He was admitted to the United States as a legal permanent resident in 1984 and attended school in the Bronx. In 1996, he married Yenny Bautista, also a legal permanent resident. They have three minor children, all of whom are United States citizens. Bautista's mother is also a United States citizen. Bautista owns and operates an automobile repair business in Easton, Pennsylvania, with seven employees.
Bautista has two criminal convictions. In 2001, he was charged in New Jersey with uttering a forged instrument, in violation of the New Jersey Code of Criminal Conduct, N.J. Stat. Ann. § 2C:21-1a(3). He pled guilty to that crime in 2004 and received a sentence of one year of probation. In 2003, after trial in the Bronx, New York, he was convicted of attempted arson in the third degree, in violation of New York Penal Law §§ 110 and 150.10. He was sentenced to five years of probation.
In 2009, while returning from a trip to the Dominican Republic, Bautista was stopped and detained by Customs and Border Patrol officials at John F. Kennedy International Airport. He was released upon Deferred Inspection status, pending a secondary inspection, and, the following spring, the Department of Homeland Security instituted removalproceedings against him based on his inadmissibility under § 212(a)(2)(A)(i)(I) of the INA as an alien convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). At a hearing before the IJ, Bautista admitted that he was convicted of attempted arson, and the IJ determined that he was inadmissible.
At an immigration hearing on April 8, 2010, Bautista applied for cancellation of removal but the Government moved to pretermit the application on the ground that his attempted arson conviction counts as an aggravated felony under § 101(a)(43)(E) of the INA, making him ineligible for cancellation under § 240A(a)(3) of the INA. Bautista also applied for a waiver of inadmissibility under § 212(h) of the INA, which the Government also moved to pretermit based on the attempted arson conviction. 8 U.S.C. § 1182(h). The IJ initially denied the Government's motions but granted them after the Government filed motions for reconsideration. On February 8, 2011, the IJ ordered Bautista removed.
Bautista appealed only the cancellation of removal issue to the BIA. He argued that his attempted arson conviction was not an aggravated felony described in § 101(a)(43)(E)(i) of the INA, which lists arson offenses under federal law. 8 U.S.C. § 1101(a)(43)(E)(i). The penultimate sentence of § 101(a)(43) explains that an aggravated felony is "an offense described in this paragraph whether in violation of Federal or State law." 8 U.S.C. § 1101(a)(43). Bautista argued that, because the New York statute under which he was convicted does not require that the object of the arson be used in interstate commerce, as the corresponding federal statute does, his New York convictionwas not one "described in" the aggravated felony definition of § 101(a)(43)(E)(i).
On October 13, 2011, the BIA rejected this argument. Bautista asks this Court to review the BIA decision, renewing his argument that the absence of the federal jurisdictional element in the New York arson statute exempts it from the § 101(a)(43)(E)(i) definition of an aggravated felony. For the following reasons, we will grant Bautista's petition.
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15 and we have jurisdiction to review the BIA's final order of removal under 8 U.S.C. § 1252(a)(1).
Where, as here, the BIA issues a written decision on the merits, we review its decision and not the decision of the IJ. Catwell v. Att'y Gen., 623 F.3d 199, 205 (3d Cir. 2010).
Because the basis for Bautista's removal is a conviction for a crime involving moral turpitude, the REAL ID Act limits our jurisdiction to "constitutional claims or questions of law". 8 U.S.C. § 1252(a)(2)(D); see Catwell v. Attorney Gen. of U.S., 623 F.3d 199, 205 (3d Cir. 2010) (). We review legal determinations made by the BIA de novo, subject to the principles of deference articulated in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). See Catwell, 623 F.3d at 205.
In reviewing an agency decision, we must give deference to a reasonable agency interpretation of a statute unless that interpretation is inconsistent with a clearly expressed congressional intent. Chevron, 467 U.S. at 842-44. A statute cannot be deemed ambiguous, however, until the court exhausts the aid of "traditional tools of statutory construction." Chevron, 467 U.S. at 843 n.9. Here, we find that the BIA's construction with respect to the classification of state convictions as aggravated felonies under § 101(a)(43)(E)(i) is inconsistent with Congress's expressed intent.
Our dissenting colleague observes that the statute is "at best ambiguous" by the virtue of our disagreement over the construction of the statute. While we sympathize with this view, not every difficult question of statutory construction amounts to a statutory gap for a federal agency to fill. The Supreme Court's Chevron jurisprudence is replete with instances where disagreements in the lower courts did not prevent the Court from discerning Congressional intent from complex statutory provisions. See, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco, 529 U.S. 120 (2000) (); N.L.R.B. v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 580 (1994) (). To conclude otherwise would be to find that every time there is a disagreement about statutory construction, we accorddeference to agencies. This is not what Chevron instructs us to do.1
In light of our forthcoming discussion, we find here that Congress has spoken with sufficient clarity to make deference inappropriate.
Bautista applied for cancellation of removal under the INA, which is only available to an alien who "has not been convicted of any aggravated felony." 8 U.S.C. § 1229b. An "aggravated felony" is defined by § 101(a)(43) of the INA, which enumerates a number of offenses that qualify as aggravated felonies. 8 U.S.C. § 1101(a)(43). Primarily,interpretation of § 101(a)(43) revolves around three features of the statute's structure: its references to a category of aggravated felonies with generic offenses or federal statutes, its usage of "described in" or "defined in" when utilizing federal statutes, and its penultimate sentence.2
Due to the wide structural and linguistic variation among state statutes that criminalize the same type of conduct, § 101(a)(43) references some aggravated felonies with their generic offense, such as "murder" or "theft", while it references other aggravated felonies with a specific federal criminal statute, such as 18 U.S.C. § 922(g)(1) () or 18 U.S.C. § 844(i) (for arson). When referencing a specific federal statute, the INA does so in two ways: It either deems that an aggravated felony is an offense "described in" a federal statute or that an aggravated felony...
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