In re Ramos
| Decision Date | 04 April 2002 |
| Docket Number | File A17 630 241.,Interim Decision Number 3468 |
| Citation | 23 I&N Dec. 336 |
| Parties | In re Luis Manuel RAMOS, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCHMIDT, VILLAGELIU, GUENDELSBERGER, ROSENBERG, MILLER, BRENNAN, ESPENOZA, and, OSUNA, Board Members. Concurring Opinions: FILPPU, Board Member; PAULEY, Board Member, joined by SCIALABBA, Acting Chairman. Dissenting Opinion: HURWITZ, Board Member, joined by DUNNE, Vice Chairman; HOLMES, COLE, GRANT, MOSCATO, OHLSON, and HESS, Board Members.
ROSENBERG, Board Member:
This case was last before us on August 8, 2001, when we granted the respondent's motion to reconsider and terminated removal proceedings. The Immigration and Naturalization Service has filed a motion to reconsider under 8 C.F.R. § 3.2(b) (2001), asking us to reexamine our ruling on the respondent's motion and to find him removable as charged. We will grant the Service's motion and issue a new decision. Upon reconsideration, we again terminate the removal proceedings brought against the respondent. We also withdraw from our decisions in Matter of Puente, Interim Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision 3341 (BIA 1998), and hold that the offense of driving under the influence is not a crime of violence under 18 U.S.C. § 16(b) (2000). See section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).
The key issue is whether operating a motor vehicle while under the influence of intoxicating liquor, in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws, constitutes a crime of violence under 18 U.S.C. § 16(b), i.e., a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The respondent is a native and citizen of Portugal. He entered the United States as a visitor for pleasure on September 28, 1968, and adjusted his status to that of a lawful permanent resident on June 2, 1969. On March 22, 2000, he was convicted in Massachusetts of operating a motor vehicle while under the influence of intoxicating liquor. See Mass. Gen. Laws ch. 90, § 24(1)(a)(1) (2000). As this was the respondent's second conviction within 10 years for driving while intoxicated, he was subject to enhanced penalties and received a 2-year sentence of imprisonment.
On April 28, 2000, the Service placed the respondent in removal proceedings and charged him with being removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), based on his conviction for an aggravated felony. The Service argued that the respondent's conviction was for a crime of violence under section 101(a)(43)(F) of the Act. The Immigration Judge found the respondent removable as charged, and the respondent appealed. On February 28, 2001, we affirmed the Immigration Judge's decision without opinion pursuant to Matter of Puente, supra. See 8 C.F.R. § 3.1(a)(7) (2001).
On March 14, 2001, the respondent moved for reconsideration of our decision and we granted that motion. We looked to the specific terms of the Massachusetts statute, which provides that "[w]hoever . . . operates a motor vehicle while under the influence of intoxicating liquor . . . shall be punished." Mass. Gen. Laws ch. 90, § 24(1)(a)(1). Our examination revealed that, as interpreted by the Massachusetts courts, the essential element of "operating a vehicle" under the statute is "not limited to driving a vehicle or setting it in motion, but encompasses also the intentional act of starting the vehicle's engine." Commonwealth v. Eckert, 728 N.E.2d 312, 319 (Mass. 2000). Acts such as sleeping behind the wheel of a car with the engine running or spinning the wheels of a car that cannot move might also qualify as "operating a vehicle" under Massachusetts law. See, e.g., Commonwealth v. Ginnetti, 508 N.E.2d 603, 603-05 (Mass. 1987); Commonwealth v. Plowman, 548 N.E.2d 1278, 1281 (Mass. App. Ct. 1990).
Because we determined that the Massachusetts statute encompassed such a broad range of offenses, we concluded that operating a vehicle while intoxicated in violation of that statute was not, by its nature, an offense that involved a substantial risk that force might be used in the commission of the crime. We found the respondent's conviction distinguishable from that in Matter of Puente, supra, and concluded that the Service had not demonstrated that the respondent's offense was a crime of violence. Accordingly, we vacated our February 28, 2001, order and terminated proceedings against the respondent.
A motion to reconsider is a "`request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.'" Matter of Cerna, 20 I&N Dec. 399, 402 n.2 (BIA 1991) (quoting Hurwitz, Motions Practice Before the Board of Immigration Appeals, 20 San Diego L. Rev. 79, 90 (1982)), aff'd, Cerna v. INS, 979 F.2d 212 (11th Cir. 1992). The Service's motion to reconsider does not challenge our reading of Massachusetts law or our conclusion that an act such as sleeping behind the wheel of a car with its engine running is not a crime of violence under 8 U.S.C. § 16(b). The Service argues only that additional information included in the judgment of conviction is sufficient to establish that the respondent was, in fact, driving under the influence of alcohol and that he was convicted of that particular offense. See Montero-Ubri v. INS, 229 F.3d 319 (1st Cir. 2000) ().
According to the Service, our rulings in Matter of Puente, supra, and Matter of Magallanes, supra, support the conclusion that driving under the influence, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The Service therefore claims that we should vacate our decision terminating the respondent's removal proceedings and find him removable as charged.
The definition of an aggravated felony under section 101(a)(43)(F) of the Act includes a "crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense)" for which an alien receives a term of imprisonment of at least 1 year. In turn, 18 U.S.C. § 16 defines a "crime of violence" as
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Interpretation of statutory language begins with the terms of the statute itself, and if those terms, on their face, constitute a plain expression of congressional intent, they must be given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). If the statutory terms are ambiguous, the implementing agency must provide a reasonable interpretation of the provision that corresponds with congressional intent. Id. Where, as here, the language is plain, we are bound to ""`assume `that the legislative purpose is expressed by the ordinary meaning of the words used.'"'" INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987) (quoting INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Richards v. United States, 369 U.S. 1, 9 (1962)))).
Neither party claims that the respondent's offense qualifies as a crime of violence under 18 U.S.C. § 16(a). Moreover, in connection with the Service's motion to reconsider, neither party has questioned our prior ruling that the respondent's offense is a felony for purposes of § 16(b). See, e.g., Matter of Madrigal, 21 I&N Dec. 323, 326 (BIA 1996) (). The Service's motion turns on two arguments: its claim that the respondent was convicted of driving under the influence, and its assertion that this offense constitutes a crime of violence. The Service bases its second argument on our interpretation of § 16(b) in Matter of Puente, supra.
We have construed the terms of section 101(a)(43)(F) of the Act, defining a crime of violence, in a number of decisions that guide our review in this...
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