Camilo Ernesto Sanchez Fajardo, a lawful permanent resident, petitions for review of the decision of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") order of removal rendered on the ground that he was inadmissible to the United States because he was "convicted of ... a crime involving moral turpitude" under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(2)(A)(i)(I), due to his conviction for false imprisonment under § 787.02, Florida Statutes.
Sanchez Fajardo, a native and citizen of Cuba, was admitted to the United States as a lawful permanent resident in February 2002. One month later, he was arrested in Florida and ultimately convicted of false imprisonment, misdemeanor assault, and misdemeanor battery, as a result of an altercation with his wife.
After returning to the United States from a visit abroad in 2005, Sanchez Fajardo was stopped at Miami International Airport and placed in removal proceedings by the Department of Homeland Security ("DHS") on the ground that his convictions qualified as convictions of crimes involving moral turpitude. He moved to terminate the proceedings, contending that his prior convictions could not be deemed convictions of crimes involving moral turpitude. The DHS conceded that the assault and battery convictions were not convictions of crimes involving moral turpitude. However, the IJ and the BIA concluded that his conviction for false imprisonment constituted a conviction of such a crime, and ordered his removal on that ground.
To determine whether a conviction for a particular crime constitutes a conviction of a crime involving moral turpitude, both this Court and the BIA have historically looked to "the inherent nature of the offense, as defined in the relevant statute, rather than the circumstances surrounding a defendant's particular conduct." Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002); Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 513 (BIA 2008) ("For nearly a century, the Federal circuit courts of appeals have held that where a ground of deportability is premised on the existence of a `conviction' for a particular type of crime, the focus of the immigration authorities must be on the crime of which the alien was convicted, to the exclusion of any other criminal or morally reprehensible acts he may have committed."). This framework has come to be known as a categorical approach. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (defining the "categorical approach" as "looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions").
If the statutory definition of a crime encompasses some conduct that categorically would be grounds for removal as well as other conduct that would not, then the record of conviction—i.e., the charging document, plea, verdict, and sentence— may also be considered. Jaggernauth v. U.S. Att'y Gen., 432 F.3d 1346, 1354-55 (11th Cir.2005). This has been called the modified categorical approach. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-187, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (referencing the categorical and modified categorical approach "[i]n determining whether a conviction ... falls within the scope of a listed offense [under the INA]"). However, counts charging separate offenses, even if simultaneously
In this case, the count charging Sanchez Fajardo with false imprisonment merely tracked the general language of § 787.02(1)(a), Fla. Stat., alleging that he "without lawful authority did then and there forcibly by threat, or secretly confine, abduct, imprison or restrain another person ... against that person's will...." According to the statutory language, a person can be convicted of false imprisonment in Florida either by using forcible threats, or through secretly confining or restraining another, for example by locking or barring a door. It is not clear from the record of Sanchez Fajardo's false imprisonment conviction whether the false imprisonment charge resulted from the use of forcible threats or merely from nonviolent confinement or restraint. Thus, under the categorical approach, if either the use of forcible threats or secret confinement or restraint would not constitute a "crime involving moral turpitude," Sanchez Fajardo could not be deemed inadmissible under INA § 212(a)(2)(A)(i)(I).
However, to conclude that Sanchez Fajardo was inadmissible, the IJ considered and relied upon extraneous information outside the record of his false imprisonment conviction—to wit, information regarding his misdemeanor assault and battery convictions
The BIA rejected Sanchez Fajardo's argument and dismissed his appeal on the ground that the Attorney General decision in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G.2008), which was issued in November 2008, rejected the categorical approach employed by most courts, including ours, and held that the IJ could consider extraneous information, such as Sanchez Fajardo's misdemeanor assault and battery convictions.
The government argues that we must affirm the IJ's and the BIA's decisions because the Attorney General's construction of § 212(a)(2)(A)(i)(I) of the INA in Silva-Trevino is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44,104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Sanchez Fajardo responds that
Section 212(a)(2)(A)(i)(I) of the INA, written in the disjunctive, provides three different ways for the government to demonstrate that a respondent is inadmissible: (1) by proving that he was convicted of a crime involving moral turpitude; (2) by proving that he admitted to having committed such a crime; and (3) by proving that he admitted to committing acts that constitute the essential elements of such a crime. 8 U.S.C. § 1182(a)(2)(A)(i)(I).
In this case, the IJ and the BIA deemed Sanchez Fajardo inadmissible based only on the first prong of INA § 212(a)(2)(A)(i)(I), that is, that he was "convicted" of a particular category of crime. They relied on Silva-Trevino, which addresses this first prong of INA § 212(a)(2)(A)(i)(I) and sets out an "administrative framework for determining whether an alien has been convicted of a crime involving moral turpitude," 24 I. & N. Dec. at 689, that permits the consideration of "any additional evidence the adjudicator determines is necessary or appropriate," id. at 704.
As a general rule, an agency's interpretation of a statute which it administers is entitled to deference if the statute is silent or ambiguous and the interpretation is based on a reasonable construction of the statute. Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. However, where Congress has spoken clearly, we do not defer to an agency's interpretation of the statute, as we "must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. "If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. at 843 n. 9, 104 S.Ct. 2778. Thus we must first address the question of whether there is any ambiguity in the first prong of INA § 212(a)(2)(A)(i)(I), providing that "any alien convicted of ... a crime involving moral turpitude ... is inadmissible," 8 U.S.C. § 1182(a)(2)(A)(i)(I) (emphasis added), such that Congress delegated authority to the Attorney General to fill a statutory gap.
We begin by noting that courts have generally not found any ambiguity in provisions in the INA and earlier immigration statutes premising an alien's removability on the existence of a "conviction" for a particular type of crime. Instead, courts have consistently held that Congress's use of the term "conviction," which the INA defines as "a formal judgment of guilt," 8 U.S.C. § 1101(a)(48)(A), demonstrated its intent to require adjudicators to apply the categorical and modified categorical approach. As early as 1914, the Second Circuit interpreted Section 2 of the Immigration Act of February 20, 1907, 34 Stat. 898, 899—which required the exclusion of persons "convicted" of a crime involving moral turpitude—as directing immigration officials
Consistent with this interpretation of Congress's intent, this Court, on no less than five occasions, has applied the categorical or modified categorical approach to determine whether convictions were convictions of crimes involving moral turpitude. In United States ex rel McKenzie v. Savoretti 200 F.2d 546, 548 (5th Cir. 1952),
This considerable level of agreement, spanning several decades and across various amendments to the national immigration law, is significant, because "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change." Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). Thus, when Congress incorporated the language premising inadmissibility on whether a person was "convicted" of a crime involving moral turpitude into the INA, it was presumably aware that this language had been interpreted to require the application of a categorical and modified categorical approach. Had there been congressional disagreement with the courts' interpretation of the word "conviction," Congress could easily have removed the term "convicted" from § 212(a)(2)(A)(i)(I) of the INA during any one of the forty times the statute has been amended since 1952. See 8 U.S.C. § 1182 (historical notes). In other words, if Congress believed that the courts and the BIA had misinterpreted its intent, it could easily have amended the statute to allow adjudicators to consider the actual conduct underlying a conviction.
The government argues that § 212(a)(2)(A)(i)(I) of the INA is ambiguous because Congress's use of the words "committed" and "committing" in the parts of § 212(a)(2)(A)(i)(I) dealing with admissions imply a particularized inquiry into a person's specific conduct, thereby creating an ambiguity. But we cannot see how language used in the parts of the statute addressing admissions could create an ambiguity as to whether the categorical approach applies when a person's inadmissibility turns, as it does here, on a prior conviction. In any event, the government neither argued nor presented any proof before the IJ and the BIA that Sanchez Fajardo was removable under the admissions prongs of § 212(a)(2)(A)(i)(I).
We also see no merit to the government's argument that § 212(a)(2)(A)(i)(I) of the INA is ambiguous because the word "involving" in the phrase "crime involving moral turpitude" could invite an inquiry into whether a person's particular acts underlying a conviction involved moral turpitude. As the
For the foregoing reasons, we agree with the Third and Eighth Circuits that Congress unambiguously intended adjudicators to use the categorical and modified categorical approach to determine whether a person was convicted of a crime involving moral turpitude.
24 I. & N. Dec. at 704.
See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215-16 (9th Cir.2002) (citing Matter of K, 7 I. & N. Dec. 594, 598 (BIA 1957)).