On April 12, 2019, the Board of Immigration Appeals (BIA or Board) dismissed a Department of Homeland Security (DHS) appeal of a decision by the Immigration Judge (IJ) terminating proceedings on the ground that respondent is not removable per INA §237(a)(2)(A)(iii) as one convicted of an aggravated felony under INA §101(a)(43)(H). Respondent had been convicted in federal district court of kidnapping in violation of 18 U.S.C. §1201(a), for which he was sentenced to 139 months imprisonment. DHS issued a Notice to Appear (NTA) charging respondent’s conviction as an aggravated felony but the IJ disagreed.
INA§101(a)(43)(H) defines an “aggravated felony” as “an offense described in” 18 U.S.C. §§875,876,877 or 1202; although §1201 (respondent’s crime) is not included in this list, on appeal DHS contended that the Board should interpret a conviction under that section to be an aggravated felony because it is “described in” the other statutes listed by (a)(43)(H).
The BIA initiated its analysis by noting the well settled principle of statutory construction that the “first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” While DHS argued that the phrase “described in” as used by §101(a)(43)(H) indicated congressional intent to give the statute a broad reach, the Board could not find that Congress’ use of that phrase allowed it to interpret the INA as including an offense under a federal stature that is not enumerated there. In essence, stated the BIA, DHS was contending that because the “central theme” of the statutes listed un §101(a)(43)(H) is “threatening to kidnap”, the federal offense of “kidnapping” should be considered to be “described in” those statutes. The Board found that it had previously rejected a similar argument regarding the aggravated felony definition of an offense related to alien smuggling in Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999), where one convicted of aiding and abetting illegal entry was held not to have been convicted of an aggravated felony and concluded that “the language of section 101(a)(43)(H) of the Act is plain and that the respondent’s kidnapping offense is not an aggravated felony.”
The opinion further found that Congress used the phrase “relating to the demand for or receipt of ransom” as the “descriptor” of the four offenses listed in (a)(43)(H), not “relating to the kidnapping” as a kidnapping conviction under §1201 does not require a demand for, or a receipt of, ransom. Had Congress intended to make a §1201 conviction an aggravated felony, stated the BIA, it could have been included that statue in the list or done so at a later date. It did not and the Board held that it was “constrained to conclude” that the crime of kidnapping under 18 U.S.C. §1201(a) is not an aggravated felony. The DHS appeal was therefore dismissed. Matter of A. Vasquez, 27 I&N Dec. 503 (BIA 2019)
