Emile v. INS

• Decision Date: 09 February 2001
• Docket Number: No. 99-2187,99-2187
• Citation: 244 F.3d 183
• Parties: (1st Cir. 2001) EDWIN EMILE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 183

244 F.3d 183 (1st Cir. 2001)

EDWIN EMILE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-2187

United States Court of Appeals For the First Circuit

Heard February 9, 2001

Decided March 30, 2001

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Abira Ashfaq, PAIR Project, for petitioner.

Nelda C. Reyna, Office of Immigration Litigation, Department of Justice, Civil Division, with whom David W. Ogden, Assistant Attorney General, Civil Division, and Hugh G. Mullane, Senior Litigation Counsel, were on brief for respondent.

Before Boudin, Stahl and Lynch, Circuit Judges.

BOUDIN, Circuit Judge.

Edwin Emile, a native and citizen of Haiti, immigrated to the United States in 1971. In 1988, Emile was convicted in a Massachusetts state court of possession of a controlled substance. In 1990, he was again convicted, this time of indecent assault and battery on a child under fourteen, Mass. Gen. Laws ch. 265, § 13B (1998); the sentence was 350 days, of which 55 were served. In 1996, he was convicted once again of assault and battery and sentenced to a year in prison. Out of these convictions grew three efforts by the Immigration and Naturalization Service ("INS") to deport Emile.

The INS first acted against Emile in June 1990 based on the 1988 drug conviction, but the proceedings were terminated after the conviction was vacated by the state court. In August 1997, the INS began a second proceeding to remove Emile, this time for the 1996 assault and battery conviction, see 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996). However, after the immigration judge had ordered Emile deported, Emile's sentence was reduced to eleven months--a month shy of the minimum sentence for a deportable "crime of violence," id. § 1101(a)(43)(F), and thus the Board of Immigration Appeals (the "Board") remanded the matter to the immigration judge for reconsideration.

On remand, the INS abandoned its request for removal based on the 1996 conviction and substituted a new basis: the 1990 conviction for indecent assault and battery on a child under fourteen. Although this conviction had earlier been known to the INS, it became more useful for removal purposes when Congress amended the Immigration and Nationality Act ("INA") in 1996 by adding "rape, or sexual abuse of a minor" to murder in the first item on the list of deportable "aggravated felony" offenses. See Illegal Immigration Reform and Immigrant Responsibility Act of 1966, Pub. L. No. 104-208, § 321(a)(1), 110 Stat. 3009-546, - 627 (codified at 8 U.S.C. § 1101(a)(43)(A) (Supp. II 1996)). These new offenses, which Congress did not further define, make the alien subject to automatic deportation regardless of the length of sentence imposed.

After a succession of hearings in 1999, the immigration judge found that the 1990 conviction qualified as "sexual abuse of a minor" warranting deportation. The immigration judge relied in part on a police incident report, admitted over Emile's objection, that purported to describe the offense conduct based on the statement of Emile's then stepdaughter, who was thirteen at the time of the incident. She said that one night when her mother was out, Emile, while inebriated, had made sexual remarks, touched her chest under her nightgown, and touched her groin area although not the skin (for she was wearing underwear). This was, she said, Emile's second effort to fondle her.

On review, the Board upheld the deportation order, using somewhat different reasoning than the immigration judge. It agreed that Emile's violation comprised "sexual abuse of a minor," relying in part on a definition borrowed from federal criminal laws, see 18 U.S.C. §§ 2241-44 (1994 & Supp. II 1996). It rejected Emile's claim that the police report should not be considered, but--unlike the immigration judge--it found the report unnecessary to the outcome. The Board also said that Emile was not eligible for discretionary relief from deportation. On this appeal, Emile contests both the deportation and the refusal of his application for waiver; and we begin with the deportation order.

The Board held Emile deportable on the ground that he had been convicted of "sexual abuse of a minor" within the meaning of the 1996 amendment to the INA. Two different, albeit related, questions thus arise: one is what is meant by the quoted phrase, and the other is whether Emile's conviction falls within the rubric. The former is a routine although difficult question of statutory interpretation; the latter takes us into the murky world of Taylor v. United States, 495 U.S. 575, 600 (1990), and its progeny.

The Definition. The 1996 amendment, adding "sexual abuse of a minor" to the list of crimes warranting automatic deportation, does not define the crime or otherwise explicitly cross-reference a specific federal criminal statute. Compare 8 U.S.C. § 1101(a)(43)(A) (Supp. II 1996), with, e.g., id. § 1101(a)(43)(B) (1994) ("a drug trafficking crime (as defined in section 924(c) of title 18)"). The Board says that it may therefore construe the phrase itself under delegated authority from the Attorney General, 8 C.F.R. § 3.1(d)(1) (2000). The INS has regularly taken this position. See In re Bahta, Interim Dec. 3437, 2000 WL 1470462 (BIA 2000); In re Rodriguez-Rodriguez, Interim Dec. 3411, 1999 WL 731793 (BIA 1999).

Although enforcement agencies are not normally given deference in construing criminal statutes, see Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir. 2000), the 1996 amendment implements the immigration laws and does not impose a criminal penalty. We agree that, under governing Supreme Court precedent, the INS' reading of the phrase is entitled to deference and, if reasonable, must be upheld. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). The Board has declined to supply a complete definition, but it made clear here that it would generally regard conduct that (with the appropriate federal nexus) would violate the federal sexual abuse statutes, where the victim was a minor, as "sexual abuse of a minor" within the meaning of the 1996 amendment.

The federal criminal code contains a chapter titled "sexual abuse," 18 U.S.C. §§ 2241-48, comprising four different sets of crimes: aggravated sexual abuse (section 2241), sexual abuse (section 2242), sexual abuse of a minor or ward (section 2243), and abusive sexual contact (section 2244). The Board here focused on "abusive sexual contact," which makes criminal certain deliberate "sexual contact" under defined circumstances. "Sexual contact" is itself defined in another section as intentional touching, "either directly or through the clothing," of another person's genitals or other specified body parts "with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." Id. § 2246(3).

It seems to us reasonable, and well within the Board's discretion, to regard such conduct, by an adult against a minor, as presumptively within the 1996 amendment. Emile argues that such conduct should not, by itself, be classed as sexual abuse of a minor because it does not fit the only crime so named (section 2243) or--for that matter--either of the other two crimes in the chapter whose section headings include the phrase "sexual abuse" (sections 2241 and 2242). The three crimes so denominated are all quite serious: even the least (sexual abuse of a minor) may result in up to fifteen years' imprisonment. By contrast, the crime of abusive sexual contact, in Emile's circumstances, would have carried a maximum penalty of two years, see 18 U.S.C. § 2244(a)(3).¹

But the arguments the other way are also weighty. Neither the conduct described in section 2244(a)(3) nor the two-year maximum sentence suggests a trivial crime. The federal chapter captions all of the four crimes, including section 2244, under the heading "sexual abuse."² And, given the interpretive latitude afforded to the agency, it is hard to exclude from the 1996 amendment adult conduct that is directed against a minor and would unquestionably violate section 2244(a)(3) if it occurred on federal property. See Lara-Ruiz v. INS, No. 99-2868, 2001 WL 215953 (7th Cir. Mar. 6, 2001); cf. United States v. Zavala-Sustaita, 214 F.3d 601, 605 (5th Cir.), cert. denied, 121 S. Ct. 434 (2000).

Thus far we have ignored legislative history because there is very little directly in point. The conference report on the 1996 amendment does little to explain the critical phrase. See H.R. Conf. Rep. No. 104-828, subtit. B, § 321, available at 1996 WL 563320 (Sept. 24, 1996). However, Emile's counsel relies on the concurrent addition of a new statutory basis for removal for crimes of "child abuse," 8 U.S.C. § 1227(2)(E)(i) (Supp. II 1996), and the House bill, H.R. 2202, 104th Cong. (1996), to argue that only very serious sexual abuse was intended to be covered by the 1996 amendment adding sexual abuse of a minor as a basis for automatic deportation.

But the House bill itself listed "abusive sexual contact" after rape, aggravated sodomy, aggravated sexual abuse, and sexual abuse, in its proposed new category of "crimes of sexual violence." H.R. 2202, § 218 (a)(F). The provision draws no distinction as to minors, but otherwise adopts word-for-word and in order the headings of sections 2241, 2242, and 2244, suggesting that Congress intended this new category to encompass conduct that would be criminal under those provisions. Indeed, even the dissenters in In re Rodriguez-Rodriguez recognized that "sexual abuse of a minor," as proposed in the 1996 amendment, encompassed "sexual contact" offenses. 1999 WL 731793 (Guendelsberger, dissenting).

The Taylor Issue. This brings us to the second and equally difficult question in this case. Emile was not prosecuted under federal law; he was convicted under a Massachusetts statute, Mass. Gen. Laws ch. 265 § 13B. Even if we assume that "abusive sexual contact" by an adult directed to a minor...