Matter of A. Vasquez - Federal Kidnapping Conviction Not Aggravated Felony Under INA 101(a)(43)(H)


Introduction: Matter of A. Vasquez, 27 I&N Dec. 503 (BIA 2019)

On April 12, 2019, the Board of Immigration Appeals (BIA) published a new precedent decision in the Matter of A. Vasquez, 27 I&N Dec. 503 (BIA 2019) [PDF version]. The Board held that kidnapping in violation of 18 U.S.C. 1201 is not an aggravated felony offense relating to the demand for or receipt of ransom under section 101(a)(43)(H). In so doing, the Board relied on principles of statutory interpretation to conclude that where an alien is convicted of a Federal offense, it is only an aggravated felony under section 101(a)(43)(H) if it is under one of the four criminal statutes specifically enumerated in section 101(a)(43)(H).

In this article, we will examine the factual and procedural history of Matter of A. Vasquez and the Board's analysis and conclusions.

Factual and Procedural History: 27 I&N Dec. at 503-504

The respondent, a native and citizen of Mexico, had been admitted to the United States as a conditional permanent resident in on April 16, 1998. He adjusted his status to that of a lawful permanent resident on March 10, 2001.

On July 19, 2009, the respondent was convicted in Federal court of two counts of kidnapping in violation of 18 U.S.C. 1201(a)(1) and (2) (2006). He was sentenced to a term of imprisonment of 139 months for these convictions.

On the basis of the respondent's Federal kidnapping convictions, the Department of Homeland Security (DHS) issued to the respondent a notice of a appear, charging that the respondent was removable under section 237(a)(2)(A)(iii) of the INA as an alien who had been convicted of an aggravated felony after admission. Specifically, the DHS charged that the respondent's Federal kidnapping conviction under 18 U.S.C. 1201(a)(1) was an aggravated felony offense relating to the demand for or receipt of ransom under section 101(a)(43)(H). The DHS also charged that the Federal kidnapping conviction was an aggravated felony crime of violence under section 101(a)(43)(F).

The Immigration Judge disagreed with the DHS's charge that the respondent's conviction was for an aggravated felony under section 101(a)(43)(H) and 101(a)(43)(F) and dismissed the removal proceedings. The DHS appealed from that decision to the BIA. However, the DHS only challenged the Immigration Judge's determination regarding section 101(a)(43)(H), meaning that the issue of whether the Federal kidnapping conviction was an aggravated felony crime of violence under 101(a)(43)(F) was not before the Board on appeal. The Board would, for reasons we will examine, dismiss the DHS's appeal.

Relevant Statutes: 27 I&N Dec. at 503-504

The question before the Board was whether the respondent's Federal kidnapping conviction under 18 U.S.C. 1201(a)(1) constituted an aggravated felony “relating to the demand for the receipt of ransom” under section 101(a)(43)(H) of the INA.

Section 101(a)(43)(H) reads as follows: The term aggravated felony means-an offense described in [18 U.S.C. 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom).

Section 101(a)(43)(H) enumerates four Federal criminal statutes in its definition. The reference to each of these four Federal criminal statutes includes a parenthetical description of the nature of the offense:

18 U.S.C. 875 [PDF version] (Interstate communications);
18 U.S.C. 876
[PDF version] (Mailing threatening communications);
18 U.S.C. 877
[PDF version] (Mailing threatening communications from a foreign country); and
18 U.S.C. 1202
[PDF version] (Ransom money)

Significantly, section 101(a)(43)(H) does not require a conviction under any of the four enumerated Federal provisions. It merely requires that the alien have been convicted of engaging in conduct described in those provisions.

The question in the instant case was whether the respondent's Federal kidnapping conviction under 18 U.S.C. 1201(a) fell under section 101(a)(43)(H) insofar as that statute refers to 18 U.S.C. 1202. The Board excerpted the pertinent provisions from the respondent's statute of conviction:

“An individual is guilty of kidnapping under 18 U.S.C. 1201(a) if he or she unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, 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[, or]
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United states…”

The DHS took the position that while 18 U.S.C. 1201(a) is not referenced in section 101(a)(43)(H), the conduct criminalized therein was also an offense “described in” 18 U.S.C. 1202, which is one of the four Federal statutes explicitly referenced in section 101(a)(43)(H).

Board's Analysis and Conclusions: 27 I&N Dec. at 504-508

Quoting from Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) [PDF version], the Board explained that the “first step in interpreting a statute is to determine whether the language at issue has a plan and unambiguous meaning with regard to the particular dispute in the case.” Where the statute is unambiguous, the Board explained with reference to K Mart Corp v. Cartier, Inc., 486 U.S. 281, 291 (1988) [PDF version], it “must give effect to the unambiguously expressed intent of Congress.”

The DHS took the position that the “described in” language in section 101(a)(43)(H) reflected Congress' intent to give the aggravated felony provision broad reach. The Board noted that the “described in” language appears in several other aggravated felony provisions, those being sections 101(a)(43)(B), (C), and (F) of the INA. For the forthcoming reasons, the Board would disagree with the DHS and conclude that the “described in” language in section 101(a)(43)(H) did not allow the court “to interpret section 101(a)(43)(H) as including an offense under a Federal statute that is not enumerated there.”

The DHS relied on the Supreme Court's decision in Torres v. Lynch, 136 S.Ct. 1619, 1625-26 (2016) [PDF version]. In Torres, the Supreme Court recognized that the word “'describe' takes on different meanings in different contexts.” In some cases the word “describe” may have an exact reference whereas in others it may be less precise. Torres itself dealt with section 101(a)(43)(E)(i) of the INA, which also includes offenses “described in” four Federal criminal statutes. There, the Supreme Court determined that a New York State arson law matched one of the four incorporated Federal statutes element-for-element, only lacking a requirement that the offense be connected to interstate commerce. Id. at 1625. The Supreme Court recognized that the Board had held in several decisions that the jurisdictional difference between a Federal and State statute does not matter in determining whether the statutes match. In Torres, the Supreme Court agreed, finding “with reference to the statutory context” that the alien's New York arson conviction was described in one of the Federal criminal statutes incorporated by reference into section 101(a)(43)(E)(i).

The Board found that the facts of the instant case were distinguishable in a pertinent aspect from the facts in Torres. Here, the alien was not convicted of violating a State criminal statute, but rather a Federal statute that was not listed in section 101(a)(43)(H). The Board noted that the DHS neither argued that section 101(a)(43)(H) was ambiguous nor that any legislative history supported its reading of the provision, but rather that the “central theme” of the statutes listed in section 101(a)(43)(H) was “threatening to kidnap.” It was for this reason that the DHS reasoned that the respondent's Federal kidnapping offense was “described in,” albeit not listed among, the four Federal criminal statutes enumerated in section 101(a)(43)(H).

The Board explained that it had once rejected a “similar argument” to the one ventured by the DHS in its decision in Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999) [PDF version]. That case dealt with the scope of the aggravated felony provision at section 101(a)(43)(N), which covers “an offense described in [section 274(a)(1)(A) or (2) of the INA].” The Government had argued that section 275(a) was covered by section 101(a)(43)(N) despite its not being enumerated in the statute. The Board rejected this argument, concluding that “the plain language of section 101(a)(43)(N) revealed that Congress intended to specifically reference the offenses listed in sections 274(a)(1)(A) and (2).” Id. at 720. The United States Court of Appeals for the Fifth Circuit — which had jurisdiction over the instant case — reached the same result with regard to section 101(a)(43)(N) in Rivera-Sanchez v. Reno, 198 F.3d 545, 547 (5th Cir. 1999) (per curiam) [PDF version]. The Board concluded that, like section 101(a)(43)(N), “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 Board examined section 101(a)(43)(H) in further detail to explain its reasoning. It noted that “section 101(a)(43)(H) of the Act contains a 'relating to' parenthetical.” In Matter of Ruiz-Romero, 22 I&N Dec. 486, 489 (BIA 1999) [PDF version], the Board held that parentheticals such as this provide a “shorthand description of the referenced criminal offenses” that gives the reader “guidance as to the nature and extent of the offenses.” In Matter of Oppedisano, 26 I&N Dec. 202, 204, 206 (BIA 2013) [PDF version], the Board held that a parenthetical must be read in the context of the overall structure of the statute to determine whether it is “descriptive or limiting.” The Supreme Court applied these same contextual principles in Mellouli v. Lynch, 135 S.Ct. 1980, 1990 (2015) [PDF version] [see article].

In the context of section 101(a)(43)(H)'s parenthetical, the Board explained 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 in section 101(a)(43)(H), not the phrase 'relating to kidnapping.'” The Board stated that the respondent's statute of conviction — 18 U.S.C. 1201 — “does not require a demand for or receipt of ransom to support a conviction…” The Fifth Circuit noted in United States v. Osborne, 68 F.3d 94, 100 (5th Cir. 1995) [PDF version], that 18 U.S.C. 1201 requires proof that a person has been “held for ransom, reward, or otherwise,” meaning that a conviction can attain where a person is not held for ransom or reward, but for some other purpose entirely. The Supreme Court recognized in United States v. Healy, 376 U.S. 75, 82 (1964) [PDF version], that 18 U.S.C. 1201 is not limited in scope to kidnappings for “pecuniary gain” or for an “illegal purpose.” This contrasts with 18 U.S.C. 1202, one of the four statutes enumerated by section 101(a)(43)(H), which requires that ransom money be delivered or received in connection with a kidnapping. Some portions of the other three Federal statutes enumerated in section 101(a)(43)(H) relate to a demand for ransom in connection with a kidnapping while other sections do not relate to kidnapping at all.

The Board appealed to principles of statutory construction to hold that had Congress intended for kidnapping in violation of 18 U.S.C. 1201 to be an aggravated felony, it could have enumerated that criminal statute in section 101(a)(43)(H) of the INA. 18 U.S.C. 1201 existed in its current form when Congress enacted section 101(a)(43)(H) in 1994. Congress has not subsequently amended section 101(a)(43)(H) to include 18 U.S.C. 1201.

The DHS argued that some of the offenses enumerated in section 101(a)(43)(H) may involve a threat to kidnap, whereas 18 U.S.C. 1201 involves the more serious conduct of actual kidnapping. The Board acknowledged that the DHS may be correct in this assertion, but that it could not “agree that it 'defies logic' to hold that Congress did not intend to include kidnapping under [section] 1201 as an aggravated felony.” The Supreme Court held in Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) [PDF version], that a court may only deviate from the plain language of a statute under “rare and exceptional circumstances.” In Helvering v. Hammel, 311 U.S. 504, 510-11 (1941) [PDF version], the Court held that courts may only depart from the literal reading of a statute when the literal reading would lead to “absurd results or would thwart the obvious purpose of the statute.” The Board held that a literal reading of section 101(a)(43)(H) would not lead to any such absurd results.

The Board concluded its decision by agreeing with the DHS that kidnapping is an abhorrent and serious offense. It added that “[t]here are clearly policy considerations that would warrant making kidnapping under [section] 1201 an aggravated felony.” However, the Board stated that it is up to Congress to decide what an aggravated felony is.

For these reasons, the Board dismissed the DHS's appeal.

27 I&N Dec. at 504 n.3: Question of Whether State or Foreign Statute Can Be Considered “Described In” Section 101(a)(43)(H) Left Open

The Board explicitly did not resolve whether a State or Foreign statute can be considered to be “described in” one of the four statutes enumerated in section 101(a)(43)(H) such that it is an aggravated felony.


The Board's decision in Matter of A. Vasquez is significant in two respects. First, the Board held clearly that kidnapping in violation of 18 U.S.C. 1201 is not an aggravated felony. Second, the Board reiterated important principles that it uses to read statutes. It notably left open the question of whether a State or foreign statute with the same elements as one of the four statutes enumerated in section 101(a)(43)(H) could be considered to be “described in” section 101(a)(43)(H).

To learn about related issues, please see our growing sections on criminal aliens [see category], removal and deportation defense [see category], and immigration appeals [see category]. You can read about more important immigration administrative precedent decisions in our growing article index on the subject [see index].