Weekly Blog for 4.12.19 by Merle Kahn, Esq.
After nearly five months of silence the Board of Immigration Appeals (BIA) issued its first published decision this week. I was expecting a decision that would make me want to run to the bathroom to throw up. I was shocked when I read a well-reasoned decision that held that a federal conviction for kidnapping is not an aggravated felony. Yes, you read that right. The BIA held that under the plain language of INA § 101(a)(43)(H) kidnapping in violation of 18 U.S.C. § 1201(a) is not an aggravated felony. There is a lot to unpack here so let’s get to it. Let’s start with the statutes.
The aggravated felony kidnapping provision is actually not a kidnapping provision; it is a provision about demanding ransom. It says, “an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom)”; is an aggravated felony. INA § 101(a)(43)(H). The noncitizen was convicted of 18 U.S.C. § 1201(a). That statute provides:
“(a)Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;.*.*.*.
shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.”
18 U.S.C. § 1201(a). I have to say, reading that statute, it seems pretty clear that it says “holds for ransom or reward” so from the face of it, the statute seems to fit under INA § 101(a)(43)(H). It makes you wonder, what is the BIA thinking?
FACTS
A. Vasquez is a native and citizen of Mexico who was admitted to the United States as a conditional permanent resident on April 16, 1998. On March 10, 2001, he adjusted status to that of lawful permanent resident. On July 29, 2009, he was convicted in the Northern District of Illinois of kidnapping in violation of 18 U.S.C. § 1201(a)(1) and (2). The District Court sentenced him to a term of imprisonment of 139 months (it’s about 11.5 years).
LEGAL ANALYSIS
The BIA engages in a strict statutory analysis of the case. They held that the phrase “described in” contains a “relating to” parenthetical. “We have held that such parentheticals offer a “shorthand description of the referenced criminal offenses” that gives the reader “guidance as to the nature and extent of the offenses. Matter of Ruiz-Romero, 22 I.&N. Dec. 486, 489 (BIA 1999).” Matter of A. Vasquez, 27 I.&N. Dec. 503, 506 (BIA 2019). To determine whether a “relating to” parenthetical is “descriptive or limiting” the adjudicator must read it in context with a view to the overall structure of the statute. Id. The BIA notes that Congress used the phrase “relating to the demand for or receipt of ransom” as the descriptor of the offenses defined in the four Federal statutes enumerated under section 101(a)(43)(H). “A conviction for kidnapping under § 1201 does not require a demand for or receipt of ransom to support a conviction because the statute requires that the person be “held for ransom, reward, or otherwise.” Id. The BIA then cites a federal case recognizing that kidnapping under § 1201 is not limited to kidnappings for pecuniary gain or even for illegal purposes. See, United States v. Ortega, 517 F.2d 1006, 1009 (3rd Cir. 1975). Id.
In other words, we can use the categorical approach in for federal statutes to show that there is not a match to the generic federal offense listed in the INA. I always feel some trepidation in taking on federal cases because it seems close to impossible to try to argue that they are not removable offenses. I think my cowardice is now lifting after reading this case. The BIA notes that while some provisions in the other three statutes listed in INA § 101(a)(43)(H) also relate to a demand for ransom in connection with a kidnapping, other parts do not prohibit conduct associated with kidnapping at all. Id., 506-07.
The BIA states that if Congress intended to make kidnapping in violation of 18 U.S.C. § 1201 an aggravated felony under the Act, it could have included it under 101(a)(43)(H) along with the other statutes. They found it dispositive that Congress did not intend to include 18 U.S.C. § 1201 as an aggravated felony because that provision of the statute existed in 1994 when Congress drafted 101(a)(43)(H). The BIA notes that the statute is not ambiguous, and that the BIA can only disregard the plain language of the statute only if applying the text as written would produce a result that is absurd or bizarre, not where the result may be illogical. Id., at 507-08. Because the wording of the statute is unambiguous the BIA found it “was constrained to conclude that the crime of kidnapping under § 1201 is not an aggravated felony.” Id., at 508. I, for one, am very surprised by this decision, but I cannot disagree with the logic.