Mugalli v. Ashcroft

• Citation: 258 F.3d 52
• Decision Date: 24 January 2001
• Docket Number: No. 00-4063,00-4063
• Parties: (2nd Cir. 2001) ABDULKHALEQ MUGALLI, Petitioner, - v. - JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, Respondent. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 52

258 F.3d 52 (2nd Cir. 2001)

ABDULKHALEQ MUGALLI, Petitioner, - v. - JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 00-4063

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: Jan. 24, 2001

Decided: July 10, 2001

ROBERT D. KOLKEN, Sacks & Kolken, Buffalo, NY (Eric W. Schultz, on the brief), for Petitioner.

EDWARD CHANG, Assistant United States Attorney, New York, NY (Mary Jo White, United States Attorney, Gideon Schor, on the brief), for Respondent.

Before: PARKER, SACK, and KATZMANN Circuit Judges

Sack, Circuit Judge:

In this appeal, we must determine whether a conviction for the New York equivalent of "statutory rape" under New York Penal Law §130.25-2 constitutes an "aggravated felony" within the meaning of 8 U.S.C. §§1227(a)(2)(A)(iii) and 1101(a)(43). Deferring as we must to the Board of Immigration Appeals' reasonable interpretation of the immigration laws, we conclude that it does. We also must determine whether a Certificate of Relief from Disabilities issued pursuant to §701 of the New York Corrections Law by the New York court in which Mugalli was convicted immunizes the petitioner from any immigration consequences of his conviction. We conclude that it does not.

BACKGROUND

Petitioner Abdulkhaleq Mugalli is a native and citizen of Yemen who lawfully immigrated to the United States in March 1991. On April 22, 1999, Mugalli was indicted by a grand jury in Oneida County, New York, on two counts: (1) rape in the third degree for engaging in sexual intercourse with a female under the age of seventeen in violation of New York Penal Law §130.25-2,¹ and (2) endangering the welfare of a child in violation of New York Penal Law §260.10-1. Mugalli pled guilty to the first count² "in full satisfaction" of the indictment. At the time of the offense, the victim was sixteen years and seven months old; Mugalli was twenty-nine. Mugalli was sentenced on July 12, 1999, to five years' probation. At sentencing, he received from the court a Certificate of Relief from Disabilities ("Certificate of Relief") pursuant to New York Corrections Law §701. The Certificate of Relief purported to relieve Mugalli "of all forfeitures, and of all disabilities and bars to employment, excluding the right to retain or to be eligible for public office."

Less than a month later, on August 6, 1999, the Immigration and Naturalization Service ("INS") served Mugalli with a "Notice to Appear" in removal proceedings brought under §240 of the Immigration and Naturalization Act ("INA"). The notice asserted that Mugalli was deportable under 8 U.S.C. §1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined in 8 U.S.C.§1101(a)(43)(A).

Mugalli appeared before an Immigration Judge ("IJ") arguing that his New York conviction for rape in the third degree did not constitute an aggravated felony as defined by 8 U.S.C. §1101(a)(43)(A) and that his Certificate of Relief immunized him from any immigration consequences of the conviction. The IJ rejected Mugalli's arguments and ordered his removal.

Mugalli appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). The BIA concluded that "statutory rape" constituted "sexual abuse of a minor," which is designated by § 1101(a)(43)(A) as an aggravated felony. See In re Mugalli, No. A41 982 646 (BIA Feb. 25, 2000). The BIA further held that the Certificate of Relief had no bearing on his deportation. The BIA therefore dismissed Mugalli's appeal and ordered that he be removed to Yemen.

Mugalli petitions for review of that decision. Because his New York conviction does qualify as an aggravated felony and has not been expunged by his Certificate of Relief, we lack jurisdiction over Mugalli's petition for review and therefore dismiss it.

DISCUSSION

I. Jurisdiction

The INA provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. §1227(a)(2)(A)(iii). For purposes of this section, an "aggravated felony" includes "murder, rape, or sexual abuse of a minor." 8 U.S.C. §1101(a)(43)(A).

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C., Title III-B, 110 Stat. 3009-546 (Sept. 30, 1996) ("IIRIRA"), we cannot review any final removal order against an alien who is deportable because he was convicted of an aggravated felony. See 8 U.S.C. §1252(a)(2)(C). This jurisdictional bar arises if: (1) the petitioner is an alien; and (2) he is deportable under one of the offenses enumerated in 8 U.S.C. §1101(a)(43). See Bell v. Reno, 218 F.3d 86, 89 (2d Cir. 2000), cert. denied, 121 S.Ct. 784 (2001). However, "[w]e have jurisdiction to determine whether this jurisdictional bar applies, and we may thus review whether [Mugalli] satisfies these jurisdictional facts." Id.

Mugalli concedes that he is an alien. "The jurisdictional inquiry thus merges with the question on the merits: If [Mugalli] is in fact removable because he was convicted of an aggravated felony..., we must dismiss his petition for lack of jurisdiction." Sui v. INS, 250 F.3d 105, 110 (2d Cir. 2000). We are therefore required to consider Mugalli's substantive arguments that his New York conviction is not an aggravated felony under the INA and that his conviction has been expunged for purposes of the immigration laws by the Certificate of Relief.

II. Standard of Review

The "determination of our jurisdiction is exclusively for the court to decide." Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000), cert. denied, 121 S.Ct. 757 (2001). In this appeal, our jurisdiction depends on the definition of the phrase "aggravated felony" as used in the INA, a statute that is administered by, among others, the BIA. "As is well-established, Chevron [U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984),] requires reviewing courts to defer to an agency's interpretation of the statute it administers when the intent of Congress is unclear and the agency's interpretation is reasonable." Sui, 250 F.3d at 112 (citing Bell, 218 F.3d at 90).

Under Chevron, when we examine an agency's interpretation of a statute it administers, we first ask whether "the intent of Congress is clear as to the precise question at issue." Bell, 218 F.3d at 90 (internal quotation marks and citations omitted).

If, by employing traditional tools of statutory construction, we determine that Congress's intent is clear, that is the end of the matter. However, if the statute is silent or ambiguous with respect to the specific issue, we then ask whether the agency's answer is based on a permissible construction of the statute. We must affirm the agency's construction... as long as that interpretation is reasonable.

Id. (internal quotation marks and citations omitted). In making this assessment, it is not necessary that we conclude that the agency's interpretation of the statute is the only permissible interpretation, nor that we believe it to be the best interpretation of the statute. Rather, in order to affirm the BIA's determination, we need only conclude that its interpretation is reasonable and that it considered the matter in a detailed and reasoned fashion.

Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000) (internal quotation marks and citations omitted).

The Supreme Court has held "that the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication." INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (internal quotation marks and citation omitted). We have observed, however, that "where the BIA is interpreting state or federal criminal laws, we must review its decision de novo," Michel, 206 F.3d at 262, because "the BIA is not charged with administration of these laws," Sui, 250 F.3d at 112 (citing Michel, 206 F.3d at 262 and Sutherland v. Reno, 228 F.3d 171, 174-75 (2d Cir. 2000)).

Our recent opinion in Sui is instructive. There, the petitioner had been convicted of possessing $22,700 in counterfeit traveler's checks with intent to deceive another in violation of 18 U.S.C. § 513(a). The question presented to us was whether that conviction constituted an "attempt," under 8 U.S.C. §1101(a)(43)(U), to commit an offense "invol[ving] fraud or deceit in which the loss to the... victims exceeds $10,000" under 8 U.S.C. §1101(a)(43)(M)(i), and therefore an "aggravated felony" under 8 U.S.C. §1227(a)(2)(A)(iii). We held that the BIA was entitled to deference with respect to its interpretation of §§1101(a)(43)(M)(i),1101(a)(43)(U) and 1227(a)(2)(A)(iii), which provide for deportation of aliens for committing specified "aggravated felonies," because those statutory sections are part of the immigration laws that the INS administers. Thus, we deferred to the BIA's construction of § 1101(a)(43)(U) under which an "attempt" to commit a crime requires both the requisite intent to commit the crime and a substantial step toward completing it. But the BIA's conclusion that a conviction under 18 U.S.C. § 513(a) necessarily constituted an "attempt" as the BIA had defined it depended on an analysis of a federal criminal statute and was thus beyond the BIA's administrative responsibility and expertise. That conclusion was therefore entitled to no deference from us. See Sui, 250 F.3d at 117.

Similarly in the case at hand, we defer to the BIA's interpretation of §1101(a)(43)(A) in determining the meaning of "sexual abuse of a minor." We give no deference, however, to the BIA's decision that Mugalli's conviction under New York law for "statutory rape" meets the BIA's interpretation of "sexual abuse of a minor."

III. Merits

A. Whether Mugalli was Convicted of an Aggravated Felony

1. The Meaning of "Sexual Abuse of a Minor." The INA defines aggravated felony to include "murder, rape, or sexual abuse of a minor." 8 U.S.C. §1101(a)(43)(A).³ The only guidance provided by the statute regarding the meaning of the phrase ...