Keeley v. Whitaker, 6th Cir., 12-17-18, Published
PANEL: GRIFFIN and DONALD, Circuit Judges; BERTELSMAN, District Judge*
*The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of Kentucky, sitting by designation.
OPINION BY: JUDGE BERNICE BOUIE DONALD
KEYQUOTE:
This case requires us to use the tools of statutory interpretation to determine whether a conviction for rape in Ohio is an aggravated felony under the Immigration and Nationality Act (“INA”). The Fifth Circuit and the Board of Immigration Appeals (“BIA”) previously considered this question and answered it in the negative. In the case before us, though, the BIA reversed course in a published decision and found that such a conviction is an aggravated felony under the INA. On review of all the relevant materials, we disagree with the BIA. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the INA cannot. Therefore, the Ohio conviction does not categorically fit within the federal definition, and the petitioner’sconviction is not an aggravated felony. Accordingly, we REVERSE.
. . . .
In its opinion, the BIA ignored the most important guiding factor to statutory interpretation—the language of the statute—which shows that Congress did not consider rape and sexual abuse to be coextensive. When a court discerns the intent of Congress, “[o]ur analysis begins with the language of the statute.” Esquivel-Quintana, 137 S. Ct. at 1569 (emphasis added) (quoting Leocal v. Ashcroft, 543 U.S. 1, 8 (2004)). When defining what crimes constituted aggravated felonies in the INA, Congress included “rape” and “sexual abuse of a minor” separately. § 101(a)(43)(A). The only conclusion we can draw from this drafting is that Congress intended for the terms to describe different aggravated felonies.
The BIA’s approach is impermissible because it would strip meaning from the statute’s words. “Under accepted canons of statutory interpretation, we must interpret statutes as a whole,giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Menuskin v. Williams, 145 F.3d 755, 768 (6th Cir. 1998) (quoting Lake Cumberland Trust, Inc. v. U.S. E.P.A., 954 F.2d 1218, 1222 (6th Cir. 1992)). To accept the BIA’s position that Congress intended for rape and sexual abuse to be synonymous would render meaningless Congress’ decision to utilize the two different terms—rape and sexual abuse—to describe two different aggravated felonies.6 Congress clearly intended to penalize a more expansive set of sex crimes
No. 17-4210 Keeley v. Whitaker Page 7
committed against minors than against adults; and to effectuate that intent, Congress used the term “rape” as to adults and “sexual abuse” as to minors. The BIA ignored the language of the statute.7 Its holding cannot stand.
The primary error the BIA committed was to place the states’ treatment of the crime above the language of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (holding that we must discern the intent of Congress when interpreting a federal statute).8 Even accepting as true that many of the states treated rape and sexual abuse as “interchangeable” in 1996, we cannot impute such an understanding to Congress. The language of the INA prohibits us from doing so.
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Gee, the Fifth Circuit actually told the BIA the correct answer! And, initially, the BIA got it right!
But then, perhaps in an effort to ingratiate themselves with “Gonzo Apocalypto” Sessions, their “new boss,” the BIA screwed it up by trying to expand the reach of the removal provision so that more folks could be removed in violation of law. Sounds like just the kind of scofflaw thing Ol’ Gonzo encouraged and dreamed about. Looks to me like “job security” is overruling “justice” at “Justice!”
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172209.P Jasso-6th Cir18a0272p-06
Jasso Arangure v. Whitaker, 6th Cir., 12-18-18, Published
PANEL: THAPAR, BUSH, and NALBANDIAN, Circuit Judges
OPINION BY: JUDGE THAPAR
KEY QUOTE:
Courts have always had an “emphatic[]” duty “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). But all too often, courts abdicate this duty by rushing to find statutes ambiguous, rather than performing a full interpretive analysis. When dealing with agencies, this abdication by ambiguity is even more tempting—and even more problematic. Because, under Chevron, ambiguity means courts get to outsource their “emphatic” duty by deferring to an agency’s interpretation. But even Chevron itself reminds courts that they must do their job before applying deference: they must first exhaust the “traditional tools” of statutory interpretation and “reject administrative constructions” that are contrary to the clear meaning of the statute. Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). First and foremost, this means courts must analyze the statutory text. But when the text standing alone does not supply an answer, courts must consider canons of interpretation. Here, a canon makes the statute’s meaning clear. Thus, we reject the agency’s contrary interpretation.
. . . .
In this case, the Chevron analysis begins and ends with step one. The common-law presumption of res judicata makes the INA unambiguous. Res judicata doctrine applies in removal proceedings.
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“Preaching to the choir” here on “Chevron deference.” As my former students in RLP and ILP at Georgetown might remember, I referred to Chevron as “judicial task avoidance,” which is exactly what it is. It’s a gross violation of Marbury. Effectively, “TJ” dancing on the grave of John Marshall!
Chevron deference is particularly inappropriate in the case of the BIA, which these days functions as an enforcement appendage of the Attorney General (who, without authorization, has actually “re-assumed” many of the civil immigration enforcement functions of DHS). And, both Sessions and Whitaker have shown that if the BIA dares to render any semblance of a reasonable interpretation that might actually help a respondent in Removal Proceedings in any way it will be swiftly and mindlessly reversed.
Neither Sessions nor Whitaker had any chance of being confirmed as an Article III Judge. Indeed, Sessions was emphatically rejected for such a position by his own party because of his record of racially biased views (which he inflicted on the most vulnerable migrants during his toxic tenure as AG).
They have no business serving in a “quasi-judicial” capacity in any immigration proceeding. And, the Article III Courts have no business giving the BIA “deference” reserved for an impartial panel of subject matter experts. By no stretch of the imagination does that describe today’s “captive” BIA (which, incidentally, hasn’t had an “outside Government” appointment this century –even before Sessions, its jurisprudence had become very lopsidedly in favor of the DHS).
PWS
12-22-18