13‐4351 Oppedisano v. Holder

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2014

(Argued: October 1, 2014 Decided: October 8, 2014)

Docket No. 13‐4351‐ag

________________

ROCCO OPPEDISANO,

Petitioner, — v. —

ERIC H. HOLDER, JR., United States Attorney General,

Respondent.

B e f o r e:

PARKER, LYNCH, and CARNEY, Circuit Judges.

__________________ Petitioner Rocco Oppedisano seeks review of a decision of the Board of

Immigration Appeals concluding that his conviction for the unlawful possession

of ammunition under

(g)(1) qualifies as a conviction for an

aggravated felony under

(a)(43)(E)(ii). Because we hold that the

BIA’s interpretation is a permissible construction of the Immigration and

Nationality Act, the petition for review is DENIED.

SHARI LAUREN ASTALOS (Brian Wolf and Kerry Bretz, on the brief), Bretz & Coven, LLP, New York, New York, for Petitioner Rocco Oppedisano.

RACHEL BROWNING, Trial Attorney (Stuart F. Delery, Assistant Attorney General and Blair OʹConnor, Assistant Director, on the brief), United States Department of Justice, Washington, D.C., for Respondent Eric H. Holder, Jr., United States Attorney General.

GERARD E. LYNCH, Circuit Judge:

Rocco Oppedisano seeks review of a published order of the Board of

Immigration Appeals (“BIA”) determining that his conviction for the unlawful

possession of ammunition under

(g)(1) qualifies as an aggravated

felony under

(a)(43)(E)(ii). Because the BIA’s decision is a

2 permissible construction of the Immigration and Nationality Act (“INA”) entitled

to Chevron deference from this Court, we deny the petition for review.

BACKGROUND

Rocco Oppedisano is a native and citizen of Italy who has lived in the

United States as a lawful permanent resident since 1973. Over the past decades,

he has amassed an extensive criminal record, including a felony conviction for

attempted reckless endangerment in the first degree. On January 6, 2012, he was

convicted in the United States District Court for the Eastern District of New York

of the unlawful possession of ammunition by a convicted felon in violation of

(g)(1).1 On December 14, 2012, the Department of Homeland Security

commenced removal proceedings against Oppedisano under

(a)(2)(A)(iii), charging him with removability as an alien convicted of an

aggravated felony. As defined under the INA, an “aggravated felony” includes

1

(g)(1) provides that it is “unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

3 “an offense described in . . . section 922(g)(1) . . . of Title 18 (relating to firearms

offenses).”

(a)(43)(E)(ii).

Before the Immigration Judge (“IJ”) and the BIA, Oppedisano argued that

his conviction for the unlawful possession of ammunition does not constitute an

offense “relating to firearms.” In a published, precedential decision, the BIA

disagreed, holding that § 1101(a)(43)(E)(ii)’s “relating to” parenthetical was

purely descriptive, merely alerting the reader to the nature of the enumerated

offenses, rather than restrictive, classifying only a subset of the crimes defined in

§ 922(g)(1) as aggravated felonies. Consequently, the BIA concluded that

possession of ammunition in violation of § 922(g)(1) was an aggravated felony

that rendered Oppedisano removable under the INA.

DISCUSSION

Although we generally review the BIA’s legal conclusions de novo, we

grant Chevron deference to the agency’s constructions of the INA. Mei Juan

Zheng v. Holder,

(2d Cir. 2012). Where the INA is either silent

or ambiguous with respect to an issue, we defer to any reasonable interpretation

adopted by the BIA. Id.; see also Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc.,

(1984) (“[I]f the statute is silent or ambiguous with

4 respect to the specific issue, the question for the court is whether the agency’s

answer is based on a permissible construction of the statute.”). We consider the

BIA’s interpretation reasonable so long as it is not “arbitrary, capricious, or

manifestly contrary to the statute.” Adams v. Holder,

(2d Cir.

2012), quoting Chevron,

. Even where we would reach an

alternate interpretation de novo, we are “without authority to impose it if the

agency’s ruling is permissible.” Xia Fan Huang v. Holder,

(2d

Cir. 2010).

The INA does not define the phrase “relating to” as it is used in

(a)(43)(E)(ii), and the legislative history does not elucidate Congress’s

intent regarding the term. We must therefore consider whether the BIA’s

interpretation is a reasonable or permissible construction of the statutory

language. Contrary to Oppedisano’s claims, we find that the BIA’s opinion

provides numerous persuasive reasons for interpreting the “relating to firearms

offenses” parenthetical as purely descriptive.

First, as the BIA observed, the “common sense” function of the “relating

to” parenthetical in context of § 1101(a)(43)(E)(ii)’s extensive list of qualifying

offenses is to alert readers to the nature of the otherwise anonymous section

5 numbers. Absent such descriptive hints, deducing whether any criminal offense

falls under § 1101(a)(43)’s “litany of numbers” would “be a long and arduous

process.” United States v. Monjaras‐Castaneda,

(5th Cir. 1999)

(internal quotation marks omitted); see also United States v. Salas‐Mendoza,

(10th Cir. 2001) (“[D]etermining whether an offense qualifies as

an aggravated felony [absent parenthetical guides] would be a laborious

process.”). While Oppedisano claims that the BIA’s interpretation renders the

parenthetical gratuitous, descriptive parentheticals play an important function in

statutory provisions like § 1101(a)(43), making the statutes more accessible to

readers and protecting against scrivener’s errors in transcribing their many

enumerated offenses. See United States v. Galindo‐Gallegos,

,

amended,

(9th Cir. 2001).

Based on the same reasoning, several Circuits have interpreted similar

language in a neighboring provision of § 1101(a)(43) –

(a)(43)(N),

“relating to alien smuggling” – as an “aid to identification only.”

Monjaras‐Castaneda,

(internal quotation marks omitted); see also

Castro‐Espinosa v. Ashcroft,

(9th Cir. 2001); Salas‐Mendoza,

237 F.3d at 1247‐48. That interpretation echoes the consistent practice of federal

6 courts interpreting “relating to” parentheticals in lists of predicate offenses

outside the context of the INA. See, e.g., United States v. Abdur‐Rahman,

(2d Cir. 2013) (Identity Theft Penalty Enhancement Act); United

States v. Harrell,

(9th Cir. 2011) (same); United States v.

Garner,

(7th Cir. 1987) (Racketeer Influenced and Corrupt

Organizations Act); United States v. Herring,

(5th Cir. 1979)

(same); United States v. Kassouf,

(6th Cir. 1998) (Internal

Revenue Code); United States v. Workinger,

(9th Cir. 1996)

(same).

Dismissing such decisions, Oppedisano insists that the “relating to

firearms offenses” parenthetical in § 1101(a)(43)(E)(ii) must be analyzed

independently as a distinct statutory provision. Yet the specific context of

§ 1101(a)(43)(E) provides all the more reason for a descriptive interpretation. The

list of aggravated felonies in § 1101(a)(43)(E)(ii) is immediately followed by a

provision listing as an aggravated felony any “offense described in . . . section

5861 of Title 26 (relating to firearms offenses).”

(a)(43)(E)(iii).

Unlike the crimes covered by

(g), which include transactions

involving both “firearms” and “ammunition,” the numerous criminal offenses

7 covered by

all deal exclusively with “firearms.” See, e.g.,

(a) (“to engage in business as a manufacturer or importer of, or

dealer in, firearms”);

§ 5861(b) (“to receive or possess a firearm”). Thus, the

“relating to firearms offenses” parenthetical in § 1101(a)(43)(E)(iii) can only

function as a descriptive aid. Applying a restrictive reading in

§ 1101(a)(43)(E)(ii) would accordingly require us to attribute different meanings

to the term “relating to” within two consecutive provisions of § 1101(a)(43)(E).

Courts do “not lightly infer that Congress intended the [same] term to have

wholly different meanings in neighboring subsections.” Sedima, S.P.R.L. v.

Imrex Co.,

(1985).

Furthermore, as the BIA again noted, subsequent provisions in

§ 1101(a)(43)’s list of aggravated felonies demonstrate that Congress typically

relies on explicitly restrictive parentheticals to limit the scope of enumerated

crimes in § 1101(a)(43). For example, § 1101(a)(43)(F) lists as an aggravated

felony “a crime of violence (as defined in section 16 of title 18, but not including a

purely political offense).”

(a)(43)(F) (emphasis added). Similarly,

§ 1101(a)(43)(J) extends the definition to “an offense described in section 1084 [of

Title 18] (if it is a second or subsequent offense).”

(a)(43)(J)

8 (emphasis added). Because these other provisions take “a perfectly clear

approach to articulate a limiting rather than descriptive parenthetical,” they

counsel against reading any implicit limitations into § 1101(a)(43)(E)(ii)’s

ambiguous language. Galindo‐Gallegos,

; see also Salas‐Mendoza,

(“Congress has demonstrated its ability to exclude some specific

offenses from those listed in the more general sections . . . .”).

While Oppedisano raises several additional arguments to support his

preferred construction of § 1101(a)(43)(E)(ii), none of them renders the BIA’s

interpretation unreasonable. First, Oppedisano argues that the BIA’s

construction conflicts with our opinion in Evangelista v. Ashcroft,

(2d Cir. 2004). In Evangelista, we stated that we were “not entirely comfortable”

with the approach taken by other courts that had applied a descriptive

interpretation to the parenthetical in

(a)(43)(M)(ii), “(relating to tax

evasion).” Evangelista,

. The BIA considered our decision in

Evangelista, but decided – it appears to us, correctly – that the quoted language

was dictum. Our actual holding in that case – that the “defeat” of a tax under

is “at least related” to tax evasion and thus constitutes an

aggravated felony even if the parenthetical is treated as restrictive,

at 151

9 (internal quotation marks and alterations omitted) – is consistent with the BIA’s

ruling in this case. In fact, it arguably supports the BIA’s additional reasoning

that ammunition is so “integrally associated” with firearms that Congress could

rationally describe its unlawful possession as a crime “relating to firearms

offenses.”

Second, Oppedisano points to § 1101(a)(43)(E)(i) as alleged proof that

Congress relies on “relating to” parentheticals to limit an “aggravated felony” to

only some categories of crimes listed in § 1101(a)(43). This subsection extends the

definition of an aggravated felony to any offense described in “section 842(h) or

(i) . . . or section 844(d), (e), (f), (g), (h), or (i) of [Title 18] (relating to explosive

materials offenses).”

(a)(43)(E)(i). Because

covers

offenses involving both “explosive materials” and “fire,” see, e.g.,

(i) (penalizing the destruction of property “by means of fire or an

explosive”), Oppedisano assumes that the parenthetical functions to exclude

criminal conduct involving fire alone. Yet he points to no cases or legal

authorities that draw this distinction. His argument therefore simply begs as to

10 § 1101(a)(43)(E)(i) the very question posed in this case with respect to

§ 1101(a)(43)(E)(ii).2

Third, Oppedisano notes that Congress does not mention ammunition in

its references to “firearms” offenses in other sections of the INA. These sections

include

(a)(43)(C), which extends the definition of an aggravated

felony to the “illicit trafficking in firearms or destructive devices,” and

(a)(2)(C), which renders deportable an alien guilty of a crime involving

“any weapon, part or accessory which is a firearm or destructive device.”3

2 In fact, this Court has recently held that a New York state conviction for attempted arson under a statute encompassing damage caused by “starting a fire or causing an explosion,” see

(1), constitutes an aggravated felony under § 1101(a)(43)(E)(i) as “an “offense described in”

(i). Torres v. Holder, No. 13‐2498,

(2d Cir. Aug. 20, 2014). Because the categorical approach precludes this Court from considering the facts underlying a defendant’s conviction in assessing whether his state conviction qualifies as an “aggravated felony” under the INA, Gertsenshteyn v. U.S. Dep’t of Justice,

(2d Cir. 2008), the holding in Torres necessarily presumes that arson involving the use of fire would constitute “an offense described in” § 844(i) for the purposes of § 1101(a)(43)(E)(i). See also Bautista v. Att’y Gen. of U.S.,

(3d Cir. 2014) (assuming attempted arson conviction would satisfy § 1101(a)(43)(E)(i) given jurisdictional element). 3 Both of these sections define “firearm” with reference to

(a)(3), which provides that the “term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any

11 We are not convinced that Congress intended the “firearms” offenses in

these sections to be coextensive with § 1101(a)(43)(E)(ii). Indeed, the fact that the

INA’s definition of an “aggravated felony” includes both § 1101(a)(43)(C) and

§ 1101(a)(43)(E)(ii) suggests that these subsections cover different swaths of

criminal activity. Similarly, § 1227(a)(2) lists the commission of a crime

described in § 1227(a)(2)(C) and the commission of an “aggravated felony” as

two separate grounds for deportation. See

(a)(2)(A)(iii). That

Congress broadly designated certain offenses involving “firearms” as aggravated

felonies or deportable offenses under § 1101(a)(43)(C) and § 1227(a)(2)(C) does

not conflict with its choice to select additional, specifically enumerated statutory

provisions as “aggravated felonies” under § 1101(a)(43)(E)(ii). The BIA’s failure

to address this argument does not render its otherwise carefully reasoned

judgment arbitrary or capricious.

Finally, Oppedisano claims that the rule of lenity binds us to interpret

§ 1101(a)(43)(E)(ii) narrowly in his favor. Recognizing that deportation often

makes for a harsh punishment, the rule of lenity demands that courts resolve

such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.” Id.

12 “lingering ambiguities in deportation statutes . . . in favor of the alien.”

Ruiz‐Almanzar v. Ridge,

(2d Cir. 2007) (internal quotation

marks omitted). Yet the doctrine is a “rule of last resort,” to be invoked only

when the ordinary canons of statutory interpretation fail to resolve a statute’s

meaning and the BIA has offered no permissible construction. Adams,

. It therefore does not trump Chevron’s requirement of deference to

reasonable interpretations by administrative agencies of statutes for which they

are responsible. Applying the principle whenever a petitioner demonstrates an

ambiguity in the INA would undermine the BIA’s authority to interpret

ambiguous statutes, “supplant[ing] the application of Chevron in the

immigration context.” Ruiz‐Almanzar,

. Because the BIA has

offered a reasonable interpretation of § 1101(a)(43)(E)(ii), the rule of lenity has no

application in this case.

In sum, the BIA’s descriptive reading of § 1101(a)(43)(E)(ii) is eminently

reasonable, harmonizing with the broader structure of the § 1101(a)(43) and

extensive judicial precedent. Without needing to decide how we would resolve

the issue de novo, we conclude that the BIA’s ruling is a permissible construction

entitled to Chevron deference from this Court.

CONCLUSION

For the foregoing reasons, the petition for review is DENIED.

13