Guerrero-Perez v. Immigration Service, 00-1799

• Decision Date: 02 July 2001
• Docket Number: No. 00-1799,00-1799
• Citation: 256 F.3d 546
• Parties: (7th Cir. 2001) Jose F. Guerrero-Perez, Petitioner, v. Immigration and Naturalization Service, and John Ashcroft, Respondents
• Court: U.S. Court of Appeals — Seventh Circuit

Page 546

256 F.3d 546 (7th Cir. 2001)

Jose F. Guerrero-Perez, Petitioner, v. Immigration and Naturalization Service, and John Ashcroft, Respondents.

No. 00-1799

In the United States Court of Appeals For the Seventh Circuit

Submitted April 18, 2001

Decided July 2, 2001

On Petition for Rehearing

Before Flaum, Chief Judge, and Bauer and Coffey, Circuit Judges.

Flaum, Chief Judge.

In Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001), we determined that Jose F. Guerrero-Perez's misdemeanor conviction for sexual abuse of a minor constituted an aggravated felony under sec. 101(a)(43)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. sec. 1101(a) (43)(A). Shortly after we issued our opinion, the Board of Immigration Appeals ("BIA") in an en banc decision, In re Robin Juraine Crammond, 2001 BIA LEXIS 3, 23 I & N. Dec. 9, found that a misdemeanor conviction for sexual abuse of a minor is not an aggravated felony under 8 U.S.C. sec. 1101(a)(43)(A). Guerrero¹ now requests that we reconsider our view on this matter in light of the BIA's disposition.

Discussion

Our task is to determine whether we should accept the BIA's approach as outlined in Crammond or affirm the position that we articulated in Guerrero- Perez. We begin by recognizing that a majority of the Board Members (11 out of the 20) concur that for a person to be considered an aggravated felon under 8 U.S.C sec. 1101(a)(43)(A), which encompasses murder, rape, or sexual abuse of a minor, an individual must commit a felony offense. To determine whether someone has committed a felony, the majority said that one should look to the federal definition of a felony. This was about all that the majority was able to agree upon, as there exists no consensus among them regarding how to reach the aforementioned outcome. Board Member Guendelsberger, writing for seven other Board Members, found no clear congressional intent in the plain language of the aggravated felony statute. Having determined the statute was ambiguous, Board Member Guendelsberger then proceeded to employ traditional tools of statutory construction to discern the meaning of the statute. In the end, this exercise proved futile. As a consequence, he invoked the principle that when a statute is ambiguous it should be construed in favor of the alien. Board Member Filppu, authoring her own separate concurrence, took issue with Board Member Guendelsberger's invocation of what she labeled the "rule of lenity." Crammond, 2001 BIA LEXIS 3, at *23. After conducting her own analysis of the statute utilizing the "ordinary approach to questions of statutory construction," id. at *23, her answer to the dilemma appears to be that Congress intended that 8 U.S.C. sec. 1101(a)(43)(A) include only felony offenses. Board Member Rosenberg, who was joined by Board Member Miller, wrote separately to voice her view that "there is a significant expression of congressional intent favoring the conclusion reached by the majority and that a narrow construction of the statute limiting the reach of the aggravated felony provision is appropriate." Id. at *34. The dissent, written by Board Member Grant and joined by eight other Board Members, seems to endorse the reasoning and decision that we reached in Guerrero- Perez. Board Member Grant also warned that the majority opinion had placed the Board in a difficult position because it will in the future either have to announce that all parts of 8 U.S.C. sec. 1101(a)(43)(A) must involve felony offenses, which he asserts is "in derogation of the meaning of the Act." Id. at *74. If the Board does not choose such a course,...