Gertsenshteyn v. U.S. Dept. of Justice

• Decision Date: 25 September 2008
• Docket Number: Docket No. 07-1183-ag.
• Citation: 544 F.3d 137
• Parties: Boris Izraylovich GERTSENSHTEYN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Michael B. Mukasey,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

544 F.3d 137

Boris Izraylovich GERTSENSHTEYN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Michael B. Mukasey,^* Attorney General, Respondent.

Docket No. 07-1183-ag.

United States Court of Appeals, Second Circuit.

Argued: March 12, 2008.

Decided: September 25, 2008.

Jesse Lloyd, Neil A. Weinrib & Associates, New York, N.Y., for Petitioner.

Andrew M. McNeela, Assistant United States Attorney (Ross E. Morrison, Of Counsel), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Respondent.

Before: CALABRESI and B.D. PARKER, Circuit Judges, and UNDERHILL, District Judge.^**

CALABRESI, Circuit Judge:

A flurry of cases have reached this Court recently dealing with how our categorical and modified categorical approaches apply to removal proceedings and what the IJ and BIA may look to when determining whether an alien has been convicted of an "aggravated felony" for the purposes of the Immigration and Nationality Act ("INA"), § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). See, e.g., James v. Mukasey, 522 F.3d 250 (2d Cir. 2008); Wala v. Mukasey, 511 F.3d 102 (2d Cir.2007); Dulal-Whiteway v. U.S. Dep't of Homeland Security, 501 F.3d 116 (2d Cir.2007). Because the petitioner in this case seeks review of a published, precedential opinion by the BIA that abandons prior BIA precedent and seeks to allow immigration courts greater leeway to examine the conduct underlying an alien's prior conviction, we are required to examine how this new approach fits with the law of our Circuit.

BACKGROUND

I. The Removal Proceedings

Petitioner Boris Izraylovich Gertsenshteyn ("Petitioner") is a citizen of the Ukraine who entered the United States as a refugee and subsequently adjusted his status to that of a lawful permanent resident. On July 30, 2001, in connection with his employment with Sea Pearl Escort, a prostitution service, Petitioner was convicted of violating and conspiring to violate 18 U.S.C. § 2422(a), a statute prohibiting the enticing of individuals to travel in interstate or foreign commerce to engage in prostitution.¹ And on December 17, 2002, the Immigration and Naturalization Service ("INS") placed Petitioner in removal proceedings, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The INS charged him with having been convicted of the aggravated felony set forth in 8 U.S.C. § 1101(a)(43)(K)(ii) ("an offense that ... is described in section 2421, 2422 or 2423 of Title 18 ... if committed for commercial advantage"), as well as that set forth in 8 U.S.C. § 1101(a)(43)(U) ("an attempt or conspiracy to commit an offense described in [§ 1101(a)(43)]").

Petitioner appeared before the Immigration Court in April 2003 and contested removability, arguing that his crimes of conviction had not been "committed for commercial advantage." IJ Alan Page disagreed. On January 20, 2004, he determined that both of Petitioner's convictions were for aggravated felonies. "[I]t was clear from a reading of the overt acts [alleged in the Indictment]," the IJ explained, that Petitioner was involved in "the Sea Pearl Escort Service," and "that [he] and his co-conspirators made arrangements so that women could be transported from outside of New York State, apparently from Russia, to the United States for the purpose of engaging in prostitution." Specifically, Petitioner "made a number of phone calls in order to arrange for at least two women to come to the United States from abroad to work as prostitutes for the Sea Pearl Escort Service," and "[p]rostitution by definition is basically performing sexual activity for hire." These circumstances, the IJ concluded, demonstrated that Petitioner committed his crimes "for commercial advantage." The IJ further found that Petitioner's offenses were "particularly serious," rendering him ineligible for withholding of removal.

II. The BIA's First Decision, the First Appeal to Our Court, and the Stipulated Remand

Petitioner appealed to the BIA, and, after some procedural problems that are not relevant to the instant Petition, argued, inter alia, that the IJ erred in finding that he had been convicted of an aggravated felony. In a decision dated July 5, 2005, the BIA denied the appeal. First, the BIA rejected the argument that only an individual who has an ownership in a commercial business can commit a crime for a "commercial advantage." While, the BIA explained, the phrase "commercial advantage" is not defined in the INA or the implementing regulations, Black's Law Dictionary described it as "any type of business or activity which is carried on for a profit." On this basis, the BIA held that "a `commercial advantage' would be `any profit or other benefit derived from any type of business or activity.'" Second, the BIA concluded that the evidence in the record, along with the testimony by Petitioner during the removal hearing, clearly showed that Petitioner "created a profit for the prostitution business for which he worked," even though he himself was just a salaried employee. His actions of "placing clients with prostitutes, collecting payment from the prostitutes, answering telephones, instructing prostitutes as to decorum to be observed with clients, and placing advertisements in the local press were done on behalf of the prostitution business"; his "criminal acts were designed to generate revenue and aimed at enhancing the profitability of the criminal enterprise for which he worked." Last, the BIA agreed with the IJ's finding that Petitioner's conviction constituted a "particularly serious crime."²

In a separate concurrence, Board Member Filppu discussed an issue not raised by the parties: whether the law required the agency to apply the "categorical"/"modified categorical" framework — the framework that is typically applied when assessing an alien's prior conviction for purposes of removal — when determining whether Petitioner committed the crimes of conviction for "commercial advantage" (as Petitioner would have had to have done for his crime of conviction to fall within the boundaries of the aggravated felony charged). Board Member Filppu answered this question in the negative. "`[C]ommercial advantage' is not an element of [Petitioner's] offense," he reasoned, so it "must be subject to proof independent of the `conviction record' constraints."

Petitioner filed a timely petition for review with this Court. But ultimately, upon agreement of the parties, we entered a Stipulation and Order of Settlement and Dismissal. Pursuant to the terms of that Stipulation and Order, the Court remanded the matter to the BIA to address:

(a) whether the "categorical approach" to determining whether a criminal offense satisfies a particular ground of removal applies to the inquiry as to whether a violation of 18 U.S.C. § 2422(a) meets the aggravated felony definition under INA § 101(a)(43)(K)(ii); and

(b) whether information beyond the record of conviction may be relied upon in determining whether an alien's violation of 18 U.S.C. § 2422(a) was for "commercial advantage."

(internal citation omitted)]

III. The BIA's Published, Precedential Decision

On March 14, 2007, the BIA issued a published decision. It held: (1) that the categorical and modified categorical approaches do not apply to the agency's determination of whether an alien's conviction was "committed for commercial advantage" under 8 U.S.C. § 1101(a)(43)(K)(ii), and that the agency could therefore rely on evidence extrinsic to the record of conviction to make that determination; and (2) that the record evidence showed that Petitioner committed his crimes of conviction for "commercial advantage." In re Gertsenshteyn, 24 I. & N. Dec. 111, 113-17 (B.I.A.2007).

A. The Application of the Categorical and Modified Categorical Approaches

According to the BIA, determining whether an alien's conviction is an aggravated felony under 8 U.S.C. § 1101(a)(43)(K)(ii) requires "two separate but related" inquiries. Id. at 112. The first is whether the alien was convicted of one of the offenses described in the listed federal statutes, 18 U.S.C. §§ 2421, 2422, and 2423; this inquiry "must be made by reference to the record of conviction alone." Id. The second is whether the offense was "committed for commercial advantage," and this inquiry may involve looking beyond the statutory elements of the crime to the conduct underlying the offense. Further, the fact in question "may be proved by any evidence, including evidence outside the record of conviction." Id.

To explain its holding — which was a clear departure from BIA precedent and Circuit law — the BIA focused on Congress's intent when expanding the "aggravated felony" definition at 8 U.S.C. § 1101(a)(43) to include the crime set forth at § 1101(a)(43)(K)(ii). As originally enacted in April 1996, § 1101(a)(43)(K)(ii) defined as an aggravated felony the commission of "an offense that ... is described in" any one of three federal statutory provisions "for commercial advantage." At that time, however, none of the provisions listed had a "commercial advantage" element. In re Gertsenshteyn, 24 I. & N. Dec. at 113-14. So, the BIA reasoned, if immigration courts were only allowed to consider the elements that the criminal trier of fact was required to find in order to convict the alien, they would not be able to deem any offense an "aggravated felony" under § 1101(a)(43)(K)(ii).³ Id. at 114. Clearly, the BIA concluded, this is not what Congress intended. Rather, according to the BIA, Congress must have meant to allow immigration courts to consider the circumstances underlying the alien's conviction to determine whether commercial advantage was present.

The BIA claimed that its interpretation was consistent with "the structure of the aggravated felony provision [8 U.S.C. § 1101(a)(43)] as a whole." Id. As "Congress has expanded the scope of crimes deemed to qualify as aggravated felonies," it "has frequently included requirements that extend beyond the...