In re Peralta

• Court: U.S. DOJ Board of Immigration Appeals
• Citation: 26 I&N Dec. 171
• Docket Number: Interim Decision #3789
• Parties: Matter of Lennyn Dejesus TAVAREZ PERALTA, Respondent
• Decision Date: 01 August 2013

26 I&N Dec. 171

Matter of Lennyn Dejesus TAVAREZ PERALTA, Respondent

Interim Decision #3789

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Decided August 1, 2013

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot's eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).

FOR RESPONDENT: Chelsea D. Germak, Esquire, Philadelphia, Pennsylvania

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jeffrey T. Bubier, Senior Attorney; Kuyomars "Q" Golparvar, Division Chief

BEFORE: Board Panel: PAULEY and MULLANE, Board Members; HOFFMAN, Temporary Board Member.

MULLANE, Board Member:

In a decision dated June 21, 2012, an Immigration Judge terminated the removal proceedings against the respondent, finding that he was not removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety, or under section 237(a)(2)(A)(iii), as an alien convicted of an aggravated felony crime of violence. The Department of Homeland Security ("DHS") has appealed from that decision.¹ The respondent has filed a brief in opposition to the appeal. The panel heard oral argument in this case on December 12, 2012.²

Page 172

The appeal will be sustained in part, and the record will be remanded to the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Dominican Republic whose status was adjusted to that of a lawful permanent resident on September 9, 2005. He was convicted on May 12, 2011, in the United States District Court for the Eastern District of Pennsylvania, of destruction of an aircraft or aircraft facilities in violation of 18 U.S.C. § 32(a)(5) (2006), for which he was sentenced to 18 months in prison.³

The facts in this case are not in dispute. Using a green laser, the respondent targeted a Philadelphia Police Department helicopter piloted by Lieutenant Anthony Ginaldi and Officer Christopher Clemens as it flew over the city of Philadelphia. The respondent successfully directed the laser at the eye of Lieutenant Ginaldi, and the pain and discomfort from the laser caused him to momentarily lose control of the helicopter. According to the conviction records, "When Lieutenant Ginaldi lost control of the aircraft due to the laser strike to his eye, the aircraft banked to the side into an unsafe flying position until Officer Clemens took over the controls and regained control of the aircraft, returning it to a safe flying position." After the officers regained control of the aircraft, they attempted to locate the source of the laser and discovered the respondent. The respondent continued to target the helicopter with the laser and even struck Lieutenant Ginaldi in the eye a second time.

Lieutenant Ginaldi subsequently described the incident as follows: "Imagine being alive for a couple of seconds and knowing you're going to crash to the ground and die . . . . There's no place to hide and no place to go . . . but down." Ginaldi was also concerned about what his helicopter

Page 173

would hit when it reached the ground. Fortunately, the copilot was able to take over but, according to Ginaldi, this would not have been the case if he was piloting a single pilot helicopter. Lieutenant Ginaldi stated that he was incapacitated for 10 hours, temporarily lost forward vision, experienced tearing in his eyes, and could not drive home.

The DHS charged the respondent with removability under section 237(a)(4)(A) of the Act, which provides in pertinent part:

Any alien who has engaged, is engaged, or any time after admission engages in—

. . .
(ii) any other criminal activity which endangers public safety or national security . . .
. . .
is deportable.

(Emphasis added.) The DHS also charged that the respondent is removable under section 237(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated felony, specifically, a crime of violence under 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2006).

II. ISSUES

The first issue in this case is whether the respondent, who was convicted of violating 18 U.S.C. § 32(a)(5) because he interfered with a pilot who was engaged in the authorized operation of a police helicopter by shining a laser light into the pilot's eyes, is removable under section 237(a)(4)(A)(ii) of the Act as an alien who engaged in "criminal activity which endangers public safety" after admission. The second issue is whether the respondent is removable under section 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony crime of violence under section 101(a)(43)(F).

III. ANALYSIS
A. Section 237(a)(4)(A)(ii) of the Act

In construing the language of section 237(a)(4)(A)(ii) of the Act, we must give meaning to all parts of the statutory provision so that no phrase or word is rendered superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a 'cardinal principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))). At the same time,

Page 174

we also must not read any word or phrase so broadly that it would render other parts of the statute superfluous.

Notwithstanding the respondent's contentions, we conclude that when properly construed, section 237(a)(4)(A)(ii) includes the circumstances of the respondent's crime. On its face, this section provides for the removal of any alien who engages in "criminal activity which endangers public safety or national security." Thus, although there need not be a conviction, the alien's conduct must be criminal—meaning it is in violation of State or Federal criminal law.⁴ In addition, the conduct must involve either "public safety" or "national security."

In this case, the DHS contends that the respondent has engaged in criminal activity that endangers public safety. It recognizes that "public safety" is a potentially sweeping concept and that the Act provides no definition or limiting factors for what "any other criminal activity which endangers public security" means in the context of removal proceedings. We agree that the phrase is ambiguous in defining the scope of criminal conduct that is covered by section 237(a)(4)(A)(ii) because it is not tied to a conviction or to conduct that is proscribed by any specific criminal statute.

We construe the phrase "endangers the public safety" narrowly. It does not, in our view, cover typical single-victim crimes such as rape and murder, notwithstanding the seriousness of such offenses. Indeed, the DHS acknowledges that such crimes are outside the scope of section 237(a)(4)(A)(ii), because it would subsume most, if not all, of the offenses specified in section 237(a)(2)(A) of the Act. The type of criminal activity that endangers "public safety" should be limited to actions that place a large segment of the general population at risk, rather than just a single victim. Stated another way, it is not meant to include "everyday" crimes, even serious ones like murder and rape, and even though the public safety—in the broadest sense—is implicated. We therefore hold that the phrase "criminal activity which endangers public safety" is limited to those situations where the public at large is endangered.⁵

Page 175

We agree with the DHS that in determining what criminal conduct is included in section 237(a)(4)(A)(ii) of the Act we should assess the "totality of the circumstances" surrounding the offense. This would include the extent and character of the potential harm and the facts and circumstances underlying the criminal activity.

The respondent's crime squarely falls within the scope of section 237(a)(4)(A)(ii) because a helicopter crash over a large city like Philadelphia would put many lives at risk and would thus endanger the public safety. Indeed, Congress is clearly aware that laser beams pointed at pilots operating an aircraft create a risk to public safety because it recently enacted a statute making it a felony to aim the beam of a laser pointer at an aircraft. 18 U.S.C. § 39A (2006); see also Internet Spyware (I-SPY) Prevention Act of 2007, and the Securing Aircraft Cockpits Against Lasers Act of 2007: Hearing on H.R. 1525 and H.R. 1615 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 13 (2007) (statement of Rep. Ric Keller) ("[I]t is only a matter of time before one of these laser beam pranksters ends up killing over 200 people in a commercial airline crash.").

In addition to the obvious public safety risk associated with a helicopter crash in a large city, there...