Espinal-Andrades v. Holder
| Decision Date | 22 January 2015 |
| Docket Number | No. 13–2418.,13–2418. |
| Citation | 777 F.3d 163 |
| Parties | Sandra Yamileth ESPINAL–ANDRADES, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED:Jorge Enrique Artieda, Jorge E. Artieda Law Office PC, Falls Church, Virginia, for Petitioner. Colin James Tucker, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Assistant Attorney General, Civil Division, Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before SHEDD, AGEE, and WYNN, Circuit Judges.
Petition denied by published opinion. Judge WYNN wrote the opinion, in which Judge SHEDD and Judge AGEE concurred.
Petitioner Sandra Yamileth Espinal–Andrades, a lawful permanent resident, pled guilty to arson under Maryland's arson-in-the-first-degree statute. At the heart of this appeal is whether that conviction qualifies as an aggravated felony under the Immigration and Nationality Act (“INA”). We agree with the immigration judge and Board of Immigration Appeals (“BIA”) that it does and, for the reasons explained below, deny Espinal's petition.
Espinal immigrated to the United States from El Salvador in 1999 and became a lawful permanent resident that same year. On August 27, 2009, a Maryland grand jury indicted her on four counts: (1) first degree arson, (2) second degree arson, (3) first degree malicious burning of property greater than $1,000, and (4) reckless endangerment. On January 27, 2010, Espinal entered a plea pursuant to N. Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), on the first degree arson count, and the state dropped the remaining three charges. She was sentenced to 360 days in prison.
On March 12, 2013, the Department of Homeland Security (“DHS”) issued Espinal a Notice to Appear (“Notice”). The Notice made several factual allegations concerning Espinal's citizenship status, and she denied each one. Espinal also denied the charge that she was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii), contesting DHS's assertion that her first degree arson conviction qualified as an aggravated felony.
On May 9, 2013, an immigration judge ruled that all of DHS's factual allegations in the Notice were true, and Espinal raised no objections to this ruling. Espinal did, however, object to the classification of her state arson charge as an aggravated felony under 8 U.S.C. § 1101(a)(43)(E), which defines “aggravated felony” as, inter alia, “an offense described in” 18 U.S.C. § 844(i), a federal arson statute.
The parties briefed the issue, and on June 4, 2013, the immigration judge ruled against Espinal. In doing so, the immigration judge acknowledged that the Maryland statute lacked the federal jurisdictional element contained in § 844(i), which requires that the destroyed property be “used in interstate or foreign commerce.” However, the immigration judge favorably cited two precedential BIA cases holding that convictions under state statutes qualified as removable aggravated felonies under the INA “even though the state offense [s] lack[ed] the jurisdictional elements of the federal crime[s].” A.R. 44 (). Accordingly, the immigration judge ruled that Espinal's arson conviction qualified as an aggravated felony and ordered her removed.
Espinal appealed the decision to the BIA. In a single-member panel decision, the BIA dismissed Espinal's appeal. It recognized agency precedent establishing that “Congress meant to cover State arson offenses when it referenced § 844(i) in the definition of an aggravated felony and did not intend to exclude them simply because a State crime lacked a Federal jurisdictional element.” A.R. 3 (). Espinal then petitioned this Court for review of the BIA's decision.
Generally, this Court lacks jurisdiction to review the final order of removal of an alien convicted of certain enumerated crimes, including an aggravated felony. Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir.2002). But under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to consider questions of law, such as whether a conviction qualifies as an aggravated felony. Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir.2007).
We review the BIA's legal conclusions de novo. Martinez v. Holder, 740 F.3d 902, 909 (4th Cir.2014). The BIA's statutory interpretations of the INA are afforded the appropriate deference, “recognizing that Congress conferred on the BIA decisionmaking power to decide such questions of law.” Id. ().
To determine what deference is owed, Bracamontes v. Holder, 675 F.3d 380, 384 (4th Cir.2012). This is Chevron step one. But if the statute is silent or ambiguous, “the question for this court becomes whether the BIA's interpretation ‘is based on a permissible construction of the statute.’ ” Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir.2008) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). This is Chevron step two.
However, we do not afford the BIA's single-member decisions Chevron deference because they lack precedential value. See, e.g., Martinez, 740 F.3d at 909–10. But the single-member BIA decision on appeal here relies on precedential en banc and three-member panel decisions. See A.R. 3–4 ().1 That controlling precedent is given Chevron deference.
With her main argument on appeal, Espinal contends that she is not deportable because her Maryland arson conviction does not qualify as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(E). Both the immigration judge and the BIA reached the opposite conclusion, relying on the BIA's precedential decisions in Matter of Bautista and In re Vasquez–Muniz. Upon careful review, we, too, reject Espinal's argument.
To provide context for our Chevron analysis, we find it helpful to first set out the pertinent statutes. Under the INA, “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). And an “aggravated felony” is “an offense described in ... 18 U.S.C. § 844(i).” 8 U.S.C. § 1101(a)(43)(E).
In turn, 18 U.S.C. § 844(i) prescribes various punishments for an individual who “maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” The elements of 18 U.S.C. § 844(i) and the Maryland statute under which Espinal was convicted are identical in all but one respect: the Maryland statute lacks the federal jurisdictional element requiring that the destroyed property be “used in interstate or foreign commerce.” Compare18 U.S.C. § 844(i), withMd.Code Ann., Crim. Law § 6–102 (West). See also Gov't's Br. 11 ().
Finally, the penultimate sentence of 8 U.S.C. § 1101(a)(43) states that “[t]he term [‘aggravated felony’] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.” 8 U.S.C. § 1101(a)(43) (emphases added).
In analyzing these statutes under Chevron, we “must first consider whether ‘Congress has directly spoken to the precise question’ at issue.” United States v. Thompson–Riviere, 561 F.3d 345, 350 n. 2 (4th Cir.2009) (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778). To determine whether Congress has spoken directly through the relevant statutes, we must “begin by examining [the statute's] plain language” and “give the relevant terms their common and ordinary meaning.” Yi Ni v. Holder, 613 F.3d 415, 424 (4th Cir.2010).
Section § 1101(a)(43)(E) defines “aggravated felony,” in relevant part, as “an offense described in ... 18 U.S.C. § 844(i).” (emphasis added). By contrast, three other subparagraphs in 8 U.S.C. § 1101(a)(43) use the term “defined in ” instead of “ described in ” to identify aggravated felonies. E.g., 8 U.S.C. § 1101(a)(43)(B), (C), and (F).
Comparing dictionary definitions, “described in” is the broader of the two terms. The American Heritage Dictionary defines “define” as “[t]o state the precise meaning,” “make clear the outline or form of,” or “[t]o specify distinctly.” The American Heritage Dictionary of the English Language 476 (5th ed.2011). By contrast, the same dictionary defines “describe” as “[t]o convey an idea or impression of,” or “[t]o trace the form or outline of.” Id. at 490. Other circuits have also...
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