Matter of Adeniye: The Meaning of "Punishable By" in the Aggravated Felony for Failure to Appear

 

Introduction: Matter of Adeniye

Matter of AydenieOn May 2, 2016, the Board of Immigration Appeals (BIA) rendered a precedent decision in the Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016) [PDF version] regarding the meaning of the term “punishable by” in the statute for the immigration aggravated felony [see article] found in section 101(a)(43)(Q) [see section] of the Immigration and Nationality Act (INA) (failure to appear for sentencing where the underlying sentence is punishable by at least 5 years' imprisonment). The Board held that “punishable by” refers to the maximum sentence that may be imposed under a statute rather than the actual sentence imposed. In this article, we will review the facts of the case, the reasoning behind the Board's decision, and the effects of the Board's decision going forward.

Facts of the Case and Procedural History

The respondent, then a lawful permanent resident (LPR), was convicted in 1995 of possessing stolen mailbox keys in violation of 18 U.S.C. 1704, which was “a Federal felony punishable by a maximum term of imprisonment of 10 years (his LPR status was rescinded in 1996). The respondent was ultimately sentenced to a 24-month term of imprisonment. However, the respondent absconded before being taken into federal custody.

The respondent was apprehended in December of 2014. He “was convicted of escape in violation of 18 U.S.C. 751(a) and of failing to surrender for service of sentence in violation of 18 U.S.C. 3146(a)(2) and (b)(1)(A)(ii).”

An Immigration Judge found that the respondent's 2014 conviction “for failing to appear for service of sentence” was for an aggravated felony under section 101(a)(43)(Q) of the INA. Accordingly, the Immigration Judge found that the respondent was removable and ineligible for relief. In reaching this conclusion, the Immigration Judge looked at the underlying offense (the 1996 conviction). Although the respondent had only been sentenced to 24 months in prison, the offense was “publishable by imprisonment for a term of 5 years or more.” Thus, the Immigration Judge found that the underlying conviction met the requirement for qualifying as an aggravated felony under section 101(a)(43)(Q).

The respondent appealed to the BIA.

Relevant Statute and Issues at Hand

In order to understand the issue in question in the Matter of Adeniye, we must first evaluate the relevant aggravated felony statute. Section 101(a)(43)(Q) defines as an aggravated felony:

“an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more…”

The question for the Board regarded the meaning of “punishable by.” The government argued that the Immigration Judge was correct in reading “punishable by” as referring to the sentence that could be imposed for the underlying conviction for which the respondent failed to appear for sentencing rather than the actual sentence that was imposed. Conversely, the respondent argued that because he was only sentenced to 24 months imprisonment, his 2014 conviction for offenses relating to failure to appear for sentencing for the 1996 conviction was not an aggravated felony (note that the respondent conceded that his 2014 conviction was “relating to a failure to appear … for service of sentence”).

BIA Analysis

The Board noted that the respondent argued that other immigration aggravated felony provisions in section 101(a)(43) use different language than “punishable by.” It cites as examples sections 101(a)(43)(J) and 101(a)(43)(T) which instead use “for which a sentence of one year imprisonment may be imposed” and “for which a sentence of 2 years' imprisonment or more may be imposed” respectively. The respondent argued that the fact Congress used different terms must mean that Congress intended the terms to have different meanings.

Although the Board conceded that it knew not why Congress used “punishable by” in section 101(a)(43)(Q) but “may be imposed” in other provisions of 101(a)(43), it did not find the respondent's argument persuasive. The Board cited Schrader v. Holder, 704 F.3d 980, 986 (D.C. Cir. 2013) which stated that “punishable … refers to any punishment capable of being imposed.”

Notably, the Board also found that the respondent's reading of “punishable” was contrary to Supreme Court precedent in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) [PDF version]. The Board notes that in Moncrieffe, the Supreme Court took the position that “punishable by” refers to “the maximum possible sentence that may be imposed upon conviction, not the sentence actually ordered or imposed.”

Finally, the Board noted that other immigration aggravated felony provisions (sections 101(a)(43)(F), (G), (R), and (S)) do in fact explicitly refer to the sentence actually imposed rather than the maximum possible sentence that could have been imposed. The Board noted that the respondent's argument “cuts both ways,” for following its logic, Congress would have stated explicitly if 101(a)(43)(Q) applied to the actual sentence imposed.

Decision

The Board held that the section 101(a)(43)(Q) applies to the maximum possible sentence that may be imposed upon conviction. Accordingly, because the respondent's underlying conviction carried a possible sentence in excess of 5 years' imprisonment, his conviction for failure to appear for sentencing was an immigration aggravated felony under 101(a)(43)(Q) notwithstanding that his actual sentence was only for 24 months.

The Board dismissed the respondent's appeal.

Conclusion: Matter of Adeniye

The Matter of Adeniye makes clear that the Board regards the language “punishable by” as referring to the maximum sentence that may be imposed upon conviction. Thus, for purpose of immigration aggravated felonies, “punishable by” has the same meaning as “may be imposed.” The definition of “punishable by” will likely inform the Board's and Immigration Judges' analysis of statutes under than section 101(a)(43)(Q) that include the term.

With regard to 101(a)(43)(Q), the Matter of Adeniye means that if an alien is convicted for an offense relating to the failure to appear for sentencing, the only question with regard to section 101(a)(43)(Q) applicability will be what the maximum possible sentence was for the underlying offense. It will not be relevant whether the actual sentence was for more or less than 5 years' imprisonment. Broadly speaking, it is important to remember that the failure to appear for sentencing is a serious offense in the criminal context as well as in the immigration context. If an alien is charged with an aggravated felony or has any criminal issues that may affect his or her immigration status, the alien should consult with an experienced immigration attorney immediately.