On March 17, 2016, The Board of Immigration Appeals (BIA or Board) ruled on the appeal of a respondent convicted of possessing stolen mailbox keys, a Federal felony punishable by a maximum term of imprisonment of 10 years, although the appellant was only sentenced to 2 years. However, he absconded before being taken into custody and was later apprehended and convicted of escape and failing to surrender for service of sentence. The Immigration Judge (IJ) found this latter conviction to be an aggravated felony per INA § 101(a)(43)(Q) as an offense relating to failure to appear for service of sentence.
On appeal, respondent conceded that his conviction related to a failure to appear for service of a sentence but claimed it was not an aggravated felony per (a)(43)(Q) because the underlying offense, possession of stolen mailbox keys, was not “punishable by imprisonment for a term of 5 years or more”, i.e., that although the maximum penalty was 10 years imprisonment, the term by which his offense was “punishable” was the 2 years he was ordered to serve, noting that (a)(43)(Q) is the only aggravated felony definition judging a term of imprisonment by what amount of time sentenced is “punishable” while all others look to the sentence that “may be imposed”.
Initially, the BIA parsed the plain meaning of the term “punishable” which, it stated , refers to any punishment capable of being imposed and held that “punishable by” denotes a focus on the maximum penalty that may be imposed for the offense, rather than on the sentence actually imposed, citing to several Ninth Circuit cases (the jurisdiction where their matter arose). Similarly, the Board found respondent’s reading of the term inconsistent with the U.S. Supreme Court’s line of decisions which culminated in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and signified that the Court found “punishable by” to refer to the maximum possible sentence that may be imposed, not the punishment actually ordered.
Finding no sufficient reason to deviate from the ordinary meaning of “punishable by”, the BIA held respondent had indeed been convicted of an aggravated felony under INA § 101(a)(43)(Q), using the maximum possible penalty for his Federal felony, and dismissed the appeal. Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016).
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