When the statutory language has a clear meaning, we need not look further. Id.; see also In re Crammond, 23 I N Dec. 9 (BIA 2001) (examining first the "terms of the statute itself" before turning to "traditional tools of statutory construction, such as the legislative history" to determine Congressional intent). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."
See Wireko v. Reno, 211 F.3d 833, 835 (4th Cir. 2000) ("Under the plain language of this definition, there is no requirement that the offense actually have been a felony, as that term is conventionally understood."); see also United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (misdemeanor petit larceny conviction was an aggravated felony). Kebede's reliance on In re Crammond, 23 I. & N. Dec. 9 (BIA), vacated on other grounds, 23 I. & N. Dec. 179 (BIA 2001) is misplaced. In that opinion, the Board stated that its holding only applied to aggravated felonies under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), i.e., "murder, rape, or sexual abuse of a minor."
The BIA has recognized that preventing this type of discord among IJ decisions is one of its major institutional goals, and one that requires it to exercise de novo review over how reasonable people would respond to a particular set of facts. Burbano, 20 I. N. Dec. at 873-74 ("The advantage of an independent standard of review is that it promotes uniformity in the application of the various discretionary provisions of the [INA]"); see also In re Crammond, 23 I. N. Dec. 9, 15 (B.I.A.) ("Important policy considerations favor applying a uniform federal standard in adjudicating removability . . . under the Act."), vacated on other grounds by 23 I. N. Dec. 179 (B.I.A. 2001).
But it was a Class A misdemeanor; Gattem's was a Class B, punishable by a maximum of six months in prison, one-twentieth of the maximum prison sentence for the crime at issue in Rodriguez-Rodriguez.Guerrero-Perez had a curious sequel that goes unremarked by my colleagues. Shortly after it was decided, the Board of Immigration Appeals ruled In re Crammond, 23 I. N. Dec. 9 (en banc), vacated on other grounds, 23 I. N. Dec. 179 (2001) (en banc), that for "sexual abuse of a minor" to count as an "aggravated felony" for purposes of removal, it must be a felony as defined in 18 U.S.C. § 3559(a)(5); that is, it must be punishable by more than a year in prison. On the basis of this ruling, Guerrero-Perez moved this court for reconsideration.
The BIA, in an opinion that was subsequently vacated on procedural grounds, disagreed with the Seventh Circuit and concluded that, for an offense to be the aggravated felony of "sexual abuse of a minor," it must first be a felony. See Matter of Crammond, 23 I. N. Dec. 9(BIA), vacated on other grounds, 23 I. N. Dec. 179 (BIA 2001); see also Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2002) (denying a petition for rehearing that was based on Crammond). The BIA has since arrived at the diametrically opposite conclusion.
As previously noted, the critical language in the statutory provision that is relevant here, INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), is identical to the language of the provision construed in Graham, and consequently Graham is controlling in this case. In making this argument, the petitioner relies on the Board of Immigration Appeals' decision in In re Robin Juraine Crammond, 23 I N Dec. 9 (BIA Mar. 22, 2001) (" Crammond I"), in which the BIA held that under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), an offense must be a felony under state law to qualify as an "aggravated felony." We note, however, that the BIA later vacated Crammond I. See In re Robin Juraine Crammond, 23 I N Dec. 179 (BIA Oct. 16, 2001).
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. The case is remanded to the Board of Immigration Appeals for reconsideration in light of In re Robin Juraine Crammond, 2001 WL 312775 (BIA March 22, 2001). VACATED AND REMANDED.
In Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001), we determined that Jose F. Guerrero-Perez's misdemeanor conviction for sexual abuse of a minor constituted an aggravated felony under § 101(a)(43)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(A). Shortly after we issued our opinion, the Board of Immigration Appeals ("BIA") in an en banc decision, In re Robin Juraine Crammond, 2001 WL 312775, 2001 BIA LEXIS 3, 23 I. N. Dec. 9, found that a misdemeanor conviction for sexual abuse of a minor is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Guerrero now requests that we reconsider our view on this matter in light of the BIA's disposition.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. The case is remanded to the Board of Immigration Appeals for reconsideration in light of In re Robin Juraine Crammond, 2001 WL 312775 (BIA March 22, 2001). VACATED AND REMANDED.
bank employee with an intent to defraud); Prus v. Holder, 660 F.3d 144, 149 (2d Cir. 2011) (finding that promoting prostitution did not constitute an aggravated felony because "N.Y. Penal Law § 230.25(1) punishes conduct that does not involve a 'prostitution business' as the term prostitution is used in the INA" (internal citation omitted)); Duarte-Ceri v. Holder, 630 F.3d 83, 85 (2d Cir. 2010) (remanding to the district court for factual finding on the time of day the noncitizen was born, in order to determine whether noncitizen acquired derivative U.S. citizenship from his mother); Lawson v. U.S. Citizenship & Immigration Servs., 795 F. Supp. 2d 283, 296 (S.D.N.Y. 2011) (finding that noncitizen could establish good moral character where, among other things, his aggravated felony conviction had occurred in 1986 and was not subject to the aggravated felony bar); Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 2014) (discussing who may receive a Section 212(c) wavier of ineligibility); In re Crammond, 23 I. & N. Dec. 9 (BIA 2001) (en banc), vacated on other grounds, 23 I. & N. Dec. 179 (BIA 2001) (en banc) (for "sexual abuse of a minor" to count as an "aggravated felony" for purposes of removal, it must be a felony as defined in 18 U.S.C. § 3559(a)(5)). The Court concludes, however, that the cases cited by Plaintiff are factually and/or procedurally inapposite, and thus unhelpful in resolving the relevant legal issues.