Kofa v. U.S. Immigration & Naturalization Service

HAMILTON, Circuit Judge,

dissenting:

This appeal presents a straightforward question of statutory interpretation: whether 8 U.S.C. § 1253(h)(2), which authorizes withholding of deportation of an alien, requires a determination, in the case of an alien who has committed an aggravated felony, that the alien constitutes a danger to the community. Following the decisions of our sister circuits, the majority answers this question in the negative. The majority’s interpretation of § 1253(h)(2), which is that urged by the Immigration and Naturalization Service (INS) and adopted by the Board of Immigration Appeals (BIA), ignores the plain language of the statute; indeed, the interpretation embraced by the majority renders key language in the statute nugatory. Because the majority’s interpretation of § 1258(h)(2) ignores the plain language of the statute, thereby violating a cardinal rule of statutory interpretation, I respectfully dissent.

I

A

An alien has two distinct statutory remedies to avoid deportation. The first is the asylum remedy which is discretionary. The Attorney General may grant asylum to aliens physically present in this country if they qualify as “refugees.” See 8 U.S.C. § 1158(a). The statute defines a refugee as one who is unwilling or unable to return to his or her homeland “because of persecution or a well-founded fear of persecution” on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A). In 1990, as part of the Immigration Act of 1990, Congress added 8 U.S.C. § 1158(d) to provide that:

(d) An alien who has been convicted of an aggravated felony, notwithstanding subsection (a) of this section, may not apply for or be granted asylum.

Immigration Act of 1990, Pub.L. No. 101-649, § 515(a)(1), 1990 U.S.C.CA.N. (104 Stat.) 5053.

The “withholding of deportation” remedy is the second statutory remedy by which an alien might avoid deportation. It provides that the Attorney General “shall not deport or return” an alien if his or her life or freedom “would be threatened” in his or her home country on account of any one or a combination of the same five grounds enumerated in the asylum provision. See 8 U.S.C. § 1253(h)(1). This remedy is mandatory if the alien successfully shows that his or her life or freedom would be threatened upon return to his or her home country, and provided that an exception does not apply.

8 U.S.C. § 1253 provides, in relevant part: (h) Withholding of deportation or return

(1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(4)(D) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that—

(B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.

Aso in 1990, the following was added to this section:

For purposes of subparagraph (B), an alien who has been convicted of an aggravated *1093 felony shall be considered to have committed a particularly serious crime.

Immigration Act of 1990, Pub.L. No. 101-649, § 515(a)(2), 1990 U.S.C.C.A.N. (104 Stat.) 5053.

B

When reviewing an agency’s interpretation of a statute, we must look first to the intent of Congress as expressed by the statutory language. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). If that intent is clear, then we and the agency are bound to give it effect. Id. If Congress explicitly leaves a gap in the legislation then the agency has authority to fill that gap and the agency is entitled to deference on the question unless the agency’s interpretation is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. at 2782. If the statute is merely silent or ambiguous on a particular matter and no intent on the part of Congress can be discerned, the court is bound to give deference to an agency interpretation unless the interpretation is unreasonable. Id.

II

The First, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuit Courts of Appeals have considered the meaning of the language of 8 U.S.C. § 1253(h)(2), see Al-Salehi v. INS, 47 F.3d 390 (10th Cir.1995); Garcia v. INS, 7 F.3d 1320 (7th Cir.1993); Mosquera-Perez v. INS, 3 F.3d 553 (1st Cir.1993); Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir.1993); Martins v. INS, 972 F.2d 657 (5th Cir.1992); Arauz v. Rivkind, 845 F.2d 271 (11th Cir.1988); Ramirez-Ramos v. INS, 814 F.2d 1394 (9th Cir.1987); Zardui-Quintana v. Richard, 768 F.2d 1213 (11th Cir.1985) (Vance, J. concurring), and concluded that 8 U.S.C. § 1253(h)(2) states a cause and effect; in other words, because an alien committed a particularly serious crime, he or she is per se a danger to the community. The circuit courts have reached this conclusion through two separate avenues. Some courts have concluded that the plain language of § 1253(h)(2) states a cause and effect relationship between conviction and community danger, see, e.g., Arauz, 845 F.2d at 275 (relying on Judge Vance’s concurring opinion in Zardui-Quintana in holding that plain language of the statute creates a cause and effect relationship), while others have concluded that the language of the statute is ambiguous, and, consequently, adopted the BIA’s cause and effect interpretation as reasonable, see, e.g., Al-Salehi, 47 F.3d at 393 (holding that the BIA’s interpretation is entitled to deference and explaining that “[t]he courts generally have recognized that the linguistic structure of § 1253(h)(2)(B) precludes an unequivocal, conclusive interpretation based on language alone”); Mosquera-Perez v. INS, 3 F.3d at 555-59 (holding language of the statute is ambiguous, but BIA’s interpretation reasonable).1 Today, the majority reaches alternative holdings: (1) the majority concludes that the plain language of the statute states a cause and effect relationship between conviction and community danger, and, (2) the majority concludes, that even if the statute is ambiguous, the BIA’s interpretation is reasonable, and thus entitled to deference.

*1094 In my view, the intent of Congress is clear from the plain language of the statute: before an alien can be denied the withholding of deportation remedy, first, the alien must have committed “a particularly serious crime,” and second, the Attorney General must make a determination that the alien “constitutes a danger to the community.” Because the statute is not silent or ambiguous with respect to the issue at hand, I would end the court’s inquiry at this point without regard to the interpretation of the BIA. See Chevron U.S.A., 467 U.S. at 842-43, 104 S.Ct. at 2781-82. Consultation of legislative history would be equally inappropriate, because, although courts “appropriately may refer to a statute’s legislative history to resolve statutory ambiguity,” Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991), the clarity of the statutory language at issue in this case, completely obviates the need for such inquiry. See id.; Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917) (stating that if statutory language “is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion”).

Cavalierly, the decisions of our sister circuits, as well as the majority in this case, disregard the plain language of § 1253(h)(2), which of course is paramount and dispositive. These decisions effectively read out the “danger to the community” language within this statute. Logic dictates that if Congress intended the alien’s commission of a “particularly serious crime” to be dispositive of the inquiry and that there be no separate determination of dangerousness by the Attorney General, Congress would not have inserted the “danger to the community” clause in § 1253(h)(2)(B). Reading out the “danger to the community” clause, as the majority and our sister circuits have, violates the well settled rule that when reading or interpreting a statute, a court must strive to give effect to every word contained within the statute, see, e.g., United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955).

The support for reading out the “danger to the community” language comes from the notion that, had Congress intended a separate determination, Congress could have made the clauses conjunctive by inserting the word “and” but did not do so. See, e.g., Zardui-Quintana, 768 F.2d at 1222 (Vance, J. concurring). Reduced to its essence, the argument presents a double-edged sword since it is at least equally true that, had Congress intended to create a per se bar to withholding from deportation for aggravated felons, it could have clearly drafted the statute to accomplish this result. For example, Congress could have inserted “if’ and “then” in the statute. Alternatively, Congress could have adopted language similar to that in § 1158 as modified by the 1990 Immigration Act. The language added to § 1158 clearly accomplishes, with respect to asylum, what the INS and the BIA seek to have the language in § 1253(h)(2)(B) accomplish by stating: “An alien who has been convicted of an aggravated felony ... may not apply for asylum.” 8 U.S.C. § 1158(d). Although this comparison may not, by itself, suggest a particular Congressional intent, it definitely undercuts the suggestion that the failure to draft § 1253(h)(2)(B) in the conjunctive requires a cause and effect relationship. Moreover, reliance on Congress’ failure to employ the word “and” focuses on what Congress should have said rather than what Congress has said, which, of course, is paramount.

Perhaps even more critical, a cause and effect reading of § 1253(h)(2)(B) reads out the language “the Attorney general determines,” contained in § 1253(h)(2). Thus, in another respect, the cause and effect reading of the statute violates the canon of statutory construction that when reading or interpreting a statute, we must strive to give effect to every word contained within the statute, see Menasche, 348 U.S. at 538-39, 75 S.Ct. at 519-20. In contrast to the cause and effect reading propounded by the majority and our sister circuits, a reading requiring the Attorney General to consider the danger to the community that an alien convicted of a particularly serious crime presents gives effect to both clauses and the language “the Attorney General determines.” According to the *1095 grammatical construction of § 1253(h)(2), what the Attorney General must determine is whether the alien presents a danger to the community, not whether the alien has been convicted of a particularly serious crime. Deciding if an alien has been convicted of a particularly serious crime is not a “determination” at all. By its terms, the statute defines “particularly serious crime” as an “aggravated felony,” which is itself defined in § 1101(a)(43). Because the statute defines “particularly serious crime,” it is illogical to conclude that Congress thought it necessary to direct the Attorney General to “determine” whether a crime falls within the statutory list at § 1101(a)(43). Indeed, Congress did not direct the Attorney General to determine if an alien committed an aggravated felony with respect to the asylum provisions. Compare 8 U.S.C. § 1253(h)(2) with 8 U.S.C. § 1158(d).

Conspicuously, the majority opinion in this case never attempts to harmonize the language “the Attorney General determines” with the conviction and the danger to community clauses; rather, the majority’s interpretation of the statute hides in a conclusory ruse: “plain English and common sense” compels its conclusion. Ante at 1089. In short, the intent of Congress is clear through the plain language of the statute; that statute requires the Attorney General to make a determination, and that determination is not whether an alien has been convicted of a particularly serious crime, but rather whether that alien constitutes a danger to the community.2

Ill

We need not proceed further. The statute at issue here is plain on its face: in order to deny withholding of deportation, the alien must have committed a particularly serious crime and the Attorney General must make a determination that the alien constitutes a danger to the community. Because the majority concludes otherwise, I respectfully dissent.

Chief Judge ERVIN, and Judges HALL, MURNAGHAN and MICHAEL join this dissent.

. The majority seems to infer that five circuit courts (the Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits) have concluded that the meaning of the language in § 1253(h)(2) is plain and unambiguous. See ante at 1088-89. This inference is misleading. Indeed, the Tenth Circuit stated in Al-Salehi that "courts generally have recognized that the linguistic structure of § 1253(h)(2)(B) precludes an unequivocal, conclusive interpretation based on language alone.” Al-Salehi, 47 F.3d at 393 (citing Martins, Ramirez-Ramos, and Mosquera-Perez); see also Mosquera-Perez, 3 F.3d at 555-59 (language of the statute is ambiguous, but BIA's interpretation reasonable). Furthermore, the Fifth, Seventh, and Ninth Circuits have simply deferred to the BIA's interpretation, see Garcia, 7 F.3d at 1323-26 (holding BIA's interpretation is entitled to deference based on language and legislative history); Martins, 972 F.2d at 661 (affirming BIA's interpretation based on legislative history); Ramirez-Ramos, 814 F.2d at 1397 (holding BIA's interpretation "reasonable” upon "[a] close reading of the language”). The Eleventh Circuit has not deferred to the BIA's interpretation; rather it has held that the plain language of § 1253(h)(2) states a cause and effect, see Arauz, 845 F.2d at 275; Zardui-Quintana, 768 F.2d at 1222 (Vance, J. concurring).

. It is also worth noting that the Supreme Court, albeit in dicta, has stated that § 1253(h)(2) applies when the "alien was convicted of 'serious crime’ and 'constitutes a danger to the community of the United States.’ ” INS v. Cardoza Fonseer 480 U.S. 421, 444 n. 28, 107 S.Ct. 1207, 1219 n. 28, 94 L.Ed.2d 434 (1987) (emphasis added). Although not binding, this at least demonstrates the Court’s understanding of the provision after its consideration of § 1253(h)(2).