Filed: Sep. 18, 2015
Latest Update: Mar. 02, 2020
Summary: required Levesque to pay restitution in that amount.and the Board of Immigration Appeals upheld that decision.F.3d 790, 803 (1st Cir.(5) by adding at the end of the following:, Such term applies to offenses described in, the previous sentence whether in violation of, Federal or State law.
United States Court of Appeals
For the First Circuit
No. 14-2251
JULIET ROSE MCKENZIE LEVESQUE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Tricia A. Quest and Moretti Perlow & Bonin Law Offices on
brief for petitioner.
Lindsay M. Murphy, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Benjamin C.
Mizer, Acting Assistant Attorney General, Civil Division, and Song
Park, Senior Litigation Counsel, on brief for respondent.
September 18, 2015
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
HOWARD, Chief Judge. At issue in this immigration case
is whether an individual must serve a "term of imprisonment" to
have committed an "aggravated felony" as that term is defined in
8 U.S.C. § 1101(a)(43). Relying on the plain language of the
statute, we hold that a federal or state conviction can constitute
an "aggravated felony" under this law even if the petitioner served
no incarcerative sentence for that crime. Accordingly, we deny
the petition for review.
In 2011, Petitioner Juliet Rose McKenzie Levesque, a
lawful permanent resident, pled guilty to conspiracy to commit
wire fraud, bank fraud, and identity fraud. See 18 U.S.C. § 371.
The federal district court sentencing Levesque determined that the
total amount of loss to the victims was $29,444.22, and thus
required Levesque to pay restitution in that amount. The court
then ordered a five-year term of probation, although it did not
impose any incarcerative sentence.
As a result of this predicate conviction, the Department
of Homeland Security initiated removal proceedings against
Levesque. See 8 U.S.C. § 1227(a)(2)(A)(iii). In June 2013, an
Immigration Judge ordered Levesque removed under this provision,
and the Board of Immigration Appeals upheld that decision. This
timely appeal followed.
Our review in this case is limited to "constitutional
claims or questions of law." 8 U.S.C. § 1252(a)(2)(C); see also
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§ 1252(a)(2)(D) (withholding federal jurisdiction, with limited
exceptions, of "any final order of removal against an alien who is
removable by reason of having committed a criminal offense covered
in . . . § 1227(a)(2)(A)(iii) . . ."). Here, Levesque presents a
pure question of law that we have the jurisdiction to consider and
that we review de novo. See Campbell v. Holder, 698 F.3d 29, 32
(1st Cir. 2012).
We begin with the statutory provisions at the heart of
this case. The statute governing Levesque's removal states, "[a]ny
alien who is convicted of an aggravated felony at any time after
admission is deportable." § 1227(a)(2)(A)(iii). In turn,
"aggravated felony" is defined to include: an offense involving
"fraud or deceit in which the loss to the victim or victims exceeds
$10,000," § 1101(a)(43)(M)(i), and an attempt to or conspiracy to
commit said offense, § 1101(a)(43)(U). Of particular import here,
the end of the section defining "aggravated felony" provides that
the term:
applies to an offense described in [§
1101(a)(43)] whether in violation of Federal
or State law and applies to such an offense in
violation of the law of a foreign country for
which the term of imprisonment was completed
within the previous 15 years.
§ 1101(a)(43) (emphases added).
Levesque concedes that her predicate conviction for
conspiring to commit wire fraud, bank fraud, and identity fraud,
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18 U.S.C. § 371, constitutes an offense "involv[ing] fraud or
deceit" under the definition of "aggravated felony." She also
does not argue that the amount of loss to the victims was less
than $10,000. Instead, she contends that the phrase, "for which
the term of imprisonment was completed within the previous 15
years," applies to all convictions (federal, state, and foreign)
and that her federal conviction therefore does not constitute an
"aggravated felony." She alternatively insists that, at a minimum,
the provision is ambiguous.
We make quick work of this argument. The plain language
of the statute undoubtedly indicates that the phrase, "the term of
imprisonment was completed within the previous 15 years" applies
only to those offenses "in violation of the law of a foreign
country." Congress' intentional repetition of the phrase "applies
to" is critical. The second "applies to" in the provision only
does work if there are two separate clauses: one dealing with
federal and state offenses, and the other with foreign offenses.
That is, the statute is best read as saying that the term
aggravated felony "applies to an offense described in
[§ 1101(a)(43)] whether in violation of Federal or State law," and
distinctly "applies to such an offense in violation of the law of
a foreign country for which the term of imprisonment was completed
within the previous 15 years." Indeed, if we read the law as
Levesque does -- a single clause that is entirely modified by the
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15-year temporal limit -- then the second "applies to" in the
provision would be entirely redundant. See Blum v. Holder, 744
F.3d 790, 803 (1st Cir. 2014) (noting that "[a]voidance of
redundancy is a basic principle of statutory interpretation")
(citation omitted).
Relatedly, Congress' decision to use the disjunctive
"or" between "Federal or State," juxtaposed with its choice to use
"and" between "Federal or State law . . . and a violation of the
law of a foreign country," further underscores this point. See
Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014) (explaining
that "or" is "almost always disjunctive"); Bruesewitz v. Wyeth
LLC,
562 U.S. 223, 236 (2011) (stating that "linking independent
ideas is the job of a coordinating junction like 'and'[]"). The
use of "and" strongly suggests that there are two separate clauses
in this provision. This is true, contrary to Levesque's assertion,
despite the absence of a comma before the "and." In fact, it is
only if we transformed the "and" to an "or" (i.e., "whether in
violation of Federal or State law . . . [or] . . . an offense in
violation of the law of a foreign country") that Levesque's reading
of the statute would make any sense. Had Congress intended to
write that version of the law, it certainly could have done so.
See United States v. Gitten,
231 F.3d 77, 80-81 (2d Cir. 2000).
But, it plainly did not.
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If we had any doubt -- although we have none -- the
manner in which Congress added this provision to the law confirms
our reading of it. Specifically, when Congress added this clause
in 1990, it did so as two independent provisions. Congress stated
that section 1101(a)(43) "is amended":
(5) by adding at the end of the following:
"Such term applies to offenses described in
the previous sentence whether in violation of
Federal or State law.", and
(6) by inserting before the period of the
sentence added by paragraph (5) the following:
"and also applies to offenses described in the
previous sentence in violation of foreign law
for which the term of imprisonment was
completed within the previous 15 years".
Immigration Act of 1990, §§ 501(a)(5) & (6), Pub. L. No. 101-649,
104 Stat. 4978, 5048. It would have been curious for Congress to
have amended the law in this manner if it had intended the 15-year
limit to apply to the entire provision.
Accordingly, we join the other circuits that have
addressed this issue (either directly, in passing, or in the
context of interpreting the sentencing guidelines, see, e.g.,
U.S.S.G. §2L1.2), and hold that a predicate conviction under
federal or state law can constitute an "aggravated felony" under
8 U.S.C. § 1101(a)(43) even when it is not accompanied by a term
of imprisonment. See Canto v. Holder, 593 F.3d 638, 640-41 (7th
Cir. 2010); United States v. Maturin,
499 F.3d 1243, 1245-46 (11th
Cir. 2007); United States v. Olmos-Esparza,
484 F.3d 1111, 1115
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(9th Cir. 2007); Gitten, 231 F.3d at 80-81; United States v. Maul-
Valverde,
10 F.3d 544, 546 (8th Cir. 1993).
As such, we deny the petition for review.
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