In re Rodriguez-Rodriguez
| Decision Date | 16 September 1999 |
| Docket Number | Interim Decision No. 3411.,File A36 636 672. |
| Citation | 22 I&N Dec. 991 |
| Parties | In re Pedro RODRIGUEZ-RODRIGUEZ, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: DUNNE, Vice Chairman; SCIALABBA, Vice Chairman; HEILMAN, HURWITZ, COLE, MATHON, JONES, GRANT, and MILLER, Board Members. Dissenting Opinions: FILPPU, Board Member, joined by HOLMES, VILLAGELIU, and MOSCATO, Board Members. GUENDELSBERGER, Board Member, joined by SCHMIDT, Chairman; VACCA, and ROSENBERG, Board Members.
HEILMAN, Board Member.
The Immigration and Naturalization Service appeals a decision of an Immigration Judge dated November 18, 1997, finding that the Service failed to meet its burden of demonstrating that the respondent is removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), and terminating removal proceedings. We will sustain the Service's appeal and remand the record for further proceedings.
The issue is whether the crime of which the respondent was convicted, indecency with a child by exposure pursuant to section 21.11(a)(2) of the Texas Penal Code Annotated, constitutes sexual abuse of a minor or a crime of violence and is thus an aggravated felony pursuant to sections 101(a)(43)(A) or (F) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(A) or (F) (Supp. II 1996).
The respondent was admitted to the United States as a lawful permanent resident in September 1982. On December 3, 1993, the respondent was convicted of indecency with a child by exposure, in violation of section 21.11(a)(2) of the Texas Penal Code Annotated, and was sentenced to 10 years' imprisonment. The respondent was served with a Notice to Appear (Form I-862) on October 16, 1997, and charged with removability as an alien convicted of an aggravated felony.
The Texas statute defining the offense of indecency with a child provides as follows:
A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child; or
(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.
Tex. Penal Code Ann. § 21.11(a) (West 1993). In addition, section 21.11(c) of the Texas Penal Code Annotated states that "[a]n offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree." A conviction under section 21.11(a)(2) carries a prison sentence of 2 to 10 years. Tex. Penal Code Ann. § 12.34(a) (West 1993). The statute provides for an affirmative defense to prosecution where the actor "(1) was not more than three years older than the victim and of the opposite sex; and (2) did not use duress, force, or a threat against the victim at the time of the offense." Tex. Penal Code Ann. § 21.11(b).
The Texas Penal Code Annotated also lists a separate offense of indecent exposure, which is classified as a misdemeanor. Tex. Penal Code Ann. § 21.08 (West 1993). The difference between the two provisions is that the misdemeanor offense involves recklessness regarding the presence of any person, whereas indecency with a child requires knowledge of the presence of a child. Sawyer v. Texas, 655 S.W.2d 226, 228 (1983).
The definition of an aggravated felony was revised to include "sexual abuse of a minor" by section 321(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627 ("IIRIRA"). Congress did not provide a definition of sexual abuse of a minor in section 101(a)(43)(A) of the Act.
In her decision, the Immigration Judge determined that the respondent's crime did not involve contact with a minor and therefore was not sexual abuse of a minor pursuant to section 101(a)(43)(A) of the Act. On appeal, the Service argues that the respondent's offense could be included within either section 101(a)(43)(A), defining sexual abuse of a minor, or section 101(a)(43)(F), defining a crime of violence. The Service contends that the term "sexual abuse of a minor" is broad enough to encompass indecency with a child by exposure.
We find that the term "sexual abuse of a minor" encompasses the offense of indecency with a child by exposure under section 21.11(a)(2) of the Texas Penal Code Annotated. Because Congress did not provide a definition of the term "sexual abuse of a minor," we begin our analysis by looking to principles of statutory construction. It is rudimentary that interpretation of the 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 (1994). Where Congress' intent is not plainly expressed, we then need to determine a reasonable interpretation of the language and fill any gap left, either implicitly or explicitly, by Congress. Id. at 843-44. The rules of statutory construction dictate that we take into account the design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Moreover, the paramount index of congressional intent is the plain meaning of the words used in the statute taken as a whole. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). The legislative purpose is presumed to be expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984).
Section 101(a)(43)(A) of the Act includes within the definition of an aggravated felony "murder, rape, or sexual abuse of a minor." Prior to enactment of the IIRIRA, section 101(a)(43)(A) was limited to murder. The terms rape and sexual abuse of a minor were added in an expansion of the definition of what constitutes an aggravated felony and an overall increase in the severity of the consequences for aliens convicted of crimes. See, e.g., IIRIRA §§ 301(b), 110 Stat. at 3009-575 (); 303, 110 Stat. at 3009-585 (); 304(b), 110 Stat. at 3009-597 (); 321, 110 Stat. at 3009-627 ().
We note further that Congress added grounds of deportability for "Crimes of Domestic Violence, Stalking, or Violation of Protection Order, Crimes Against Children." IIRIRA § 350, 110 Stat. at 3009-586 (). Section 237(a)(2)(E)(i) of the Act provides that "[a]ny alien who at any time after entry is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable." The House conference report on the IIRIRA notes that the grounds of deportability were amended
to provide that an alien convicted of crimes of domestic violence, stalking, or child abuse is deportable. The crimes of rape and sexual abuse of a minor are elsewhere classified as aggravated felonies . . ., thus making aliens convicted of those crimes deportable and ineligible for most forms of immigration benefits or relief from deportation.
H.R. Conf. Rep. No. 104-828, § 350, at 505-06 (1996). Congress' intent, then, was to expand the definition of an aggravated felony and to provide a comprehensive statutory scheme to cover crimes against children.
In defining the term "sexual abuse of a minor," we are not obliged to adopt a federal or state statutory provision. The Attorney General is charged with the administration and enforcement of the Act, and she has delegated to this Board the interpretation of the definition of an aggravated felony as it arises in proceedings such as these. Section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (Supp. II 1996); 8 C.F.R. § 3.1 (1999). In amending the aggravated felony definition to include sexual abuse of a minor, Congress did not use the phrase "an offense described in section" and then designate a definition found in the federal statute, as it did elsewhere in section 101(a)(43) of the Act.1 or name an offense and then, in parentheses, state "as described in" or "as defined in" a federal statute.2 Where Congress includes particular language in one section but omits it from another, it is presumed that Congress acted intentionally and purposefully. INS v. Cardoza-Fonseca, supra, at 432.
We recognize, however, that removal proceedings are a function of federal law. See Wilson v. INS, 43 F.3d 211 (5th Cir.), cert. denied, 516 U.S. 811 (1995), and cases cited therein. In determining whether a specific offense falls within a classification described in deportation or removal provisions in the Act, we have looked to a federal definition. See Matter of...
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