In re Gertsenshteyn
| Decision Date | 14 March 2007 |
| Docket Number | Interim Decision No. 3556.,File A71 147 243. |
| Citation | 24 I&N Dec. 111 |
| Court | U.S. DOJ Board of Immigration Appeals |
| Parties | In re Boris Izraylovich GERTSENSHTEYN, Respondent. |
This case is before us on remand from the United States Court of Appeals for the Second Circuit. In our prior order of July 5, 2005, which was vacated by the court, we agreed with the Immigration Judge's conclusion that the respondent's July 30, 2001, conviction for the offense of conspiracy to entice individuals to travel in interstate and foreign commerce to engage in prostitution in violation of 18 U.S.C. § 2422(a) constituted an aggravated felony conviction under section 101(a)(43)(K)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(ii) (2000). In doing so, we found that the respondent's actions leading to his conviction reflected that his offense was "committed for commercial advantage." The respondent's appeal will again be dismissed.
In its remand, the Second Circuit directed us to specifically address "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)." Additionally, we have been directed to determine whether information beyond the record of conviction may be relied upon in determining whether the respondent's violation of 18 U.S.C. § 2422(a) was for "commercial advantage." Both parties were given an opportunity to file additional submissions.
The respondent is charged with being removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an "alien who is convicted of an aggravated felony at any time after admission." The precise aggravated felony charge arises under section 101(a)(43)(K)(ii) of the Act, which provides:
The term "aggravated felony" means—
(K) an offense that—
. . .
(ii) is described in section 2421, 2422, or 2423 of title 18, United States Code () if committed for commercial advantage . . . .
The respondent's removability depends on two separate but related determinations. First, he must have been convicted of an offense described in 18 U.S.C. § 2421, 2422, or 2423. Second, the offense must have been "committed for commercial advantage." The first determination, requiring a qualifying conviction, must be made by reference to the record of conviction alone. The second determination, as we understand the statute, may also involve an inquiry into the conduct underlying the offense and not just focus on the statutory elements of the crime. We therefore conclude, for the reasons subsequently set forth, that whether the offense was "committed for commercial advantage" may be proved by any evidence, including evidence outside the record of conviction.
In Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996), we explained, in the "firearms" offense context, the distinction between a crime that may have been "committed" by an alien and the crime of which the alien was actually "convicted." When the statute directs a focus on an alien's conviction, as opposed to his or her conduct or behavior, we have long restricted the inquiry to evidence in the "record of conviction," an approach that parallels that outlined in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). E.g., Matter of S-, 2 I&N Dec. 353, 357-58 (BIA, A.G. 1945) (); see also Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (2007) ().1
The ground of removal charged against the respondent requires a focus on a "conviction" for an aggravated felony, which is alleged to be his conviction under 18 U.S.C. § 2422(a). This criminal statute, however, does not have as a requirement that the crime be committed for "commercial advantage."2 The absence of a "commercial advantage" element in the criminal statute means that the respondent would not be removable if our inquiry were limited to an assessment of what the criminal trier of fact was required to find in order to convict the respondent. Indeed, the above-cited court decisions all focus on the elements that necessarily were found by either a jury or a sentencing judge in the course of a determination of guilt. Our own body of administrative case law, exemplified by Matter of Pichardo, supra, and Matter of S-, supra, similarly focuses on the elements of a criminal statute when the question is the nature of the "conviction" sustained by the alien.
The question before us, then, becomes the import of the requirement in section 101(a)(43)(K)(ii) of the Act that the offense be "committed for commercial advantage." An examination of the criminal statutes enumerated in the aggravated felony provision clarifies any possible ambiguity as to whether that language references an "element" of the crime or more general behavior associated with the underlying criminal conduct. In 1996, when section 101(a)(43)(K)(ii) was enacted by section 440(e) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 110 Stat. 1214, 1277-78 ("AEDPA"),3 none of the offenses in 18 U.S.C. §§ 2421, 2422(b), and 2423 required that the crime be committed for commercial advantage.4 Moreover, by clarifying in a later amendment that the aggravated felony offense must have been "committed" for commercial advantage, see supra note 4, Congress clearly intended that the circumstances of the particular crime would be considered.
We find that where Congress has defined an aggravated felony to include a component (e.g., "commercial advantage") that is neither an element of the underlying offense nor a basis for a sentence enhancement, and thus would not normally be alleged in a criminal charging instrument, it would defeat the statute to require the application of the categorical (or modified categorical) approach, in which only the statute itself and the limited materials constituting the record of conviction may be consulted.5 Applying the categorical or modified categorical approach would effectively have rendered section 101(a)(43)(K)(ii) a nullity prior to 2003 and would give it extremely limited scope today.
We also predicate our holding on our general understanding of the structure of the aggravated felony provision as a whole. In its various amendments to the aggravated felony definition, Congress has expanded the scope of crimes deemed to qualify as aggravated felonies, but has frequently included requirements that extend beyond the elements of the offenses. Perhaps the most common additional requirement pertains to the length of the sentence given for the conviction. The sentence handed out for a crime is not an "element" that must be proved to establish guilt. While the length of sentence can readily be ascertained from the criminal judgment and sentencing papers, it is an aspect of the criminal case that arises following a conviction, not preceding it. In this respect, the length of sentence requirement associated, for example, with a "theft" offense distinguishes aggravated felony theft convictions from lesser theft convictions that did not result in a qualifying sentence. To the extent that they are employed, these "length of sentence" provisions are the "aggravating" factors that distinguish ordinary crimes from the more serious "aggravated felonies" of the same general character.
We understand the "commercial advantage" requirement at issue to operate in the same manner. In 1996, it was not an element of any of the crimes enumerated in section 101(a)(43)(K)(ii), but it is a factor that helps to set apart lesser offenses from more serious ones. Not all convictions under 18 U.S.C. § 2422 qualify as aggravated felonies. But the ones that were "committed for commercial advantage" do qualify. The main difference, though not necessarily an inconsequential one, between this "commercial advantage" restriction and "length of sentence" restrictions is that only the latter can readily be ascertained by consulting conviction records. In order to give life to the "commercial advantage" restriction, the parties must be able to offer evidence outside the strict confines of the record of conviction, although on occasion it may be possible to convincingly deduce commercial advantage from some conviction records, such as those describing extensive conspiracies and criminal business enterprises.6
In sum, section 101(a)(43)(K)(ii) of the Act is composed of two separate and distinct conditions. First, the offense must be "described in section...
To continue reading
Request your trial