Cite as 23 I&N Dec. 448 (BIA 2002) Interim Decision #3476 

In re Anderson David Justin SMALL, Respondent 

File A22 525 186 - Oakdale 

Decided June 4, 2002 

U.S. Department of Justice

Executive Office for Immigration Review 

Board of Immigration Appeals 

A misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony under 

section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) 

(2000). 

FOR RESPONDENT: Leo Jerome Lahey, Esquire, Lafayette, Louisiana 

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Yon Alberdi, Assistant 

District Counsel 

BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; 

SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, COLE, 

GUENDELSBERGER, MILLER, BRENNAN, OSUNA, OHLSON, HESS, and 

PAULEY, Board Members. Concurring Opinion: GRANT, Board Member. 

Dissenting Opinions: FILPPU, Board Member, joined by MOSCATO, Board 

Member; ROSENBERG, Board Member, joined by ESPENOZA, Board 

Member. 

PAULEY, Board Member: 

On September 12, 2001, an Immigration Judge terminated proceedings 

based on his finding that the Immigration and Naturalization Service failed to 

sustain the charge of removability against the respondent under section 

237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1227(a)(2)(A)(iii) (2000). The Service timely appealed the Immigration 

Judge’s decision. The appeal will be sustained and the record will be 

remanded to the Immigration Judge. 

The respondent, a 43-year-old native and citizen of Trinidad and Tobago, 

was admitted to the United States in 1967 as a nonimmigrant attendant, 

servant, or personal employee of a representative, officer, or employee of an 

international organization. On April 24, 1979, he adjusted his status to that 

of a lawful permanent resident of the United States. He was convicted on 

August 22, 2000, in the County Court of the State of New York, County of 

Orange, of sexual abuse in the second degree, in violation of section 

130.60(2) of the New York Penal Law, for which he was sentenced to serve 

1 year in prison. The section of New York law under which he was convicted 

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states that a “person is guilty of sexual abuse in the second degree when he 

subjects another person to sexual contact and when such other person is . . . 

(2) [l]ess than fourteen years old.” N.Y. Penal Law § 130.60 (McKinney 

2000). The term “sexual contact” is defined as the “touching of the sexual or 

other intimate parts of a person . . . for the purpose of gratifying sexual desire 

of either party.” N.Y. Penal Law § 130.00(3) (McKinney 2000). As the 

indictment in this case reveals, the victim was only 11 years old and was 

subjected to sexual contact by the respondent. An offense under this section 

of law is a class A misdemeanor, which is punishable by imprisonment for 

1 year or less. N.Y. Penal Law § 70.15 (McKinney 2000). 

On appeal, the Service argues that the Immigration Judge erred in finding 

that the respondent’s conviction was not for an aggravated felony as defined 

in sections 101(a)(43)(A) and (F) of the Act, 8 U.S.C. §§ 1101(a)(43)(A) and 

(F) (2000). We agree. Although we concur with the Immigration Judge that 

the respondent’s conviction was not for a crime of violence under section 

101(a)(43)(F),1

 we conclude that the offense, although a misdemeanor, meets 

the definition of an “aggravated felony” in section 101(a)(43)(A) of the Act, 

as an offense of “sexual abuse of a minor.” 

This is not the first time we have addressed the issue whether the definition 

of an aggravated felony set forth in section 101(a)(43)(A) encompasses 

misdemeanor crimes of rape or sexual abuse. In Matter of Crammond, 

23 I&N Dec. 9 (BIA 2001), a closely divided Board determined that 

misdemeanor offenses are not included in this section of the Act.2 We 

subsequently vacated Matter of Crammond upon learning that the alien in 

that case had departed the United States prior to the issuance of our decision. 

Matter of Crammond, 23 I&N Dec. 179 (2001); see also 8 C.F.R. § 3.2(d) 

(2001). 

At the time we initially considered Crammond, the question it presented 

was essentially one of first impression, as only one federal circuit court had 

decided the issue. In a decision handed down shortly before our opinion was 

published, the United States Court of Appeals for the Seventh Circuit issued 

a ruling that was at variance with the result reached in Crammond. 

Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001). 

1 Because the respondent’s crime is a misdemeanor, it does not come within the definition of 

a “crime of violence” in 18 U.S.C. § 16(b) (2000), which covers only felony offenses. 

Moreover, as the respondent’s offense does not involve as an element the use of violent or 

destructive physical force, it also does not qualify as a crime of violence pursuant to 18 U.S.C. 

§ 16(a) under the law of the United States Court of Appeals for the Fifth Circuit, in whose 

jurisdiction this case arises. See United States v. Landeros-Gonzalez, 262 F.3d 424, 426 (5th 

Cir. 2001). 

2 Four opinions were rendered, none of which commanded adherence by a majority of Board 

Members. 

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Since our initial decision in Matter of Crammond, the legal landscape 

relating to this question has significantly changed. After considering the issue 

anew in light of our opinion, the Seventh Circuit declined to modify its 

position and denied a petition for rehearing with a further opinion. GuerreroPerez v. INS, 256 F.3d 546 (7th Cir. 2001). In addition, two other circuits, 

the Sixth and the Eleventh, employed similar reasoning in aligning themselves 

with the Seventh Circuit. United States v. Gonzales-Vela, 276 F.3d 763 (6th 

Cir. 2001); United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir.), 

cert. denied, 122 S. Ct. 317 (2001). Most recently, the Ninth Circuit, citing 

United States v. Marin-Navarette, supra, determined that “an offense 

classified by state law as a misdemeanor can be an ‘aggravated felony’ . . . 

if the offense otherwise conforms to the federal definition [of that term] found 

in 8 U.S.C. § 1101(a)(43),” thus signaling its possible agreement with the 

result reached by its three sister circuits. United States v. Robles-Rodriguez, 

281 F.3d 900, 903 (9th Cir. 2002). Moreover, to our knowledge no federal 

court has concluded that section 101(a)(43)(A) of the Act pertains only to 

felony offenses. 

In light of these developments, we have reconsidered the issue and 

conclude that the prevailing appellate court view should be adopted for the 

reasons set forth in the above-cited opinions of the Sixth, Seventh, and 

Eleventh Circuits. We consider it appropriate at this juncture to accede to the 

weight of appellate court authority in the interest of uniform application of the 

immigration laws. 

Accordingly, the Service’s appeal will be sustained and the record will be 

remanded to the Immigration Judge. 

ORDER: The appeal of the Immigration and Naturalization Service is 

sustained. 

FURTHER ORDER: The decision of the Immigration Judge is vacated 

and the record is remanded for further proceedings consistent with the 

foregoing opinion. 

CONCURRING OPINION: Edward R. Grant, Board Member 

I concur fully in the result and reasoning of the majority opinion. I further 

incorporate by reference, in response to any suggestion that the Board has 

failed to engage in an independent analysis of the issue at stake, my separate 

opinion in Matter of Crammond, 23 I&N Dec. 9 (BIA), vacated, 23 I&N 

Dec. 179 (BIA 2001). 

Respectfully submitted. 

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DISSENTING OPINION: Lauri Steven Filppu, Board Member, in which 

Anthony C. Moscato, Board Member, joined 

I respectfully dissent. 

There is substantial room for disagreement on the question whether a 

misdemeanor may constitute an “aggravated felony” under section 

101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1101(a)(43)(A) (2000), as is reflected in the various opinions in Matter of 

Crammond, 23 I&N Dec. 9 (BIA), vacated, 23 I&N Dec. 179 (BIA 2001). 

We properly reexamine that question because Crammond no longer stands as 

precedent, because several courts of appeals have rejected the conclusion we 

reached in Crammond, and because we have a long-standing concern over 

nationwide uniformity in the application of the statute. 

The majority accedes to circuit court precedent because of “the interest of 

uniform application of the immigration laws.” Matter of Small, 23 I&N Dec. 

448, 450 (BIA 2002). I fully respect that view in the present context, 

especially because the term “aggravated felony” appears in both the civil and 

criminal1

 provisions of the Act, arguably giving both this Board and the 

federal criminal courts independent grounds for resolving statutory 

ambiguities and leaving uncertain the question of which interpretation is owed 

deference. Compare INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) 

(explaining that courts owe deference to the Board’s construction of 

ambiguous language in the statute administered by the Board), with Adams 

Fruit Co. v. Barrett, 494 U.S. 638 (1990) (explaining that deference does not 

extend to an agency’s interpretation of a judicially enforceable portion of a 

statute). 

Nonetheless, we face a question that is fundamentally an issue of civil 

immigration law, involving a term defined in the Immigration and Nationality 

Act and used extensively in its civil provisions, even if there is a criminal law 

overlap. Further, the issue does not involve a provision borrowed and crossreferenced from federal criminal law, where I believe we clearly owe 

deference to judicial rulings. See Matter of Yanez, 23 I&N Dec. 390 (BIA 

2002) (deferring to circuit court precedent on the meaning of 18 U.S.C. 

§ 924(c)(2) (2000)). In the end, then, I would not defer to the judicial 

construction of the term “aggravated felony” in circuits that have not spoken 

on the question at hand, unless I viewed the particular construction as 

reflecting the better interpretation of the statutory language. 

The record reflects that the respondent committed a reprehensible crime. 

The state, however, convicted him only of a misdemeanor. For the reasons 

set forth at length in my concurring opinion in Matter of Crammond, supra, 

1 See section 276(b) of the Act, 8 U.S.C. § 1326(b) (2000) (criminal provisions referencing 

the term “aggravated felony”). 

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I understand the term “aggravated felony” to refer to felony convictions, 

except where the literal language of a particular subparagraph of section 

101(a)(43) of the Act otherwise specifies. The literal language of section 

101(a)(43)(A) does not direct us to include misdemeanor convictions. Thus, 

the respondent’s state misdemeanor conviction should not be treated as an 

aggravated felony. 

DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in 

which Cecelia M. Espenoza, Board Member, joined 

Despite an “array of authority,” I am convinced that the construction of the 

aggravated felony provision relied on by the majority to arrive at the result 

reached in this case is erroneous. See United States v. Ibarra-Galindo, 

206 F.3d 1337, 1341 (9th Cir. 2000) (Canby, J., dissenting) (recognizing it to 

be a “daunting exercise to conclude that the majority has reached an incorrect 

result when six other circuits agree with it”), cert. denied, 531 U.S. 1102 

(2001). To coin a phrase, “[t]his case is a perfect example why.” Id. 

The respondent was convicted of a state misdemeanor. See N.Y. Penal 

Law § 130.60(2) (McKinney 2000). There is no dispute that the respondent’s 

conviction is not for a crime of violence as defined in section 101(a)(43)(F) 

of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000), 

which, in turn, relies on the definition of a “crime of violence” that Congress 

provided at 18 U.S.C. § 16 (2000). First, the use of physical force is not an 

element of the offense, as defined under 18 U.S.C. § 16(a); second, the 

offense is not a felony, as required under § 16(b). A conviction must be for 

a felony offense under the law of the jurisdiction in which the conviction 

occurs in order to constitute a crime of violence under § 16(b). Francis v. 

Reno, 269 F.3d 162, 169 (3d Cir. 2001) (“Labeling a particular offense as a 

misdemeanor should end the matter for the purposes of § 16(b).”). But see 

United States v. Urias-Escobar, 281 F.3d 165, 167-68 (5th Cir. 2002). 

Therefore, the respondent has been convicted of an aggravated felony, as 

charged, only if he has been convicted of “murder, rape, or sexual abuse of 

a minor” under section 101(a)(43)(A) of the Act. Section 101(a)(43)(A) has 

not been expanded to encompass offenses for which a particular sentence is 

imposed. Cf. section 101(a)(43)(F) of the Act. Accordingly, the 

determination whether the respondent was convicted of an aggravated felony 

as charged depends on whether the term “aggravated felony” encompasses not 

just felony offenses, but also misdemeanor offenses. The majority concludes 

that it does. I disagree. 

I continue to agree with the interpretation we reached in Matter of 

Crammond, 23 I&N Dec. 9 (BIA), vacated, 23 I&N Dec. 179 (BIA 2001). 

There, we recognized that in the absence of any qualifying language, the 

statute provided that a conviction for “murder, rape, or sexual abuse of a 

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minor” must be for a felony offense in order for the crime to be considered 

an aggravated felony under section 101(a)(43)(A) of the Act.1 This 

reasonable conclusion rests on two principal grounds. 

First, the words “felony” and “aggravated” have a uniform and unequivocal 

meaning, both in common usage and under federal law. In INS v. CardozaFonseca, 480 U.S. 421, 431-32 (1987), the Supreme Court recognized that 

“[w]ith regard to this very statutory scheme, we have considered ourselves 

bound to‘“assume ‘that the legislative purpose is expressed by the ordinary 

meaning of the words used.’”’ INS v. Phinpathya, 464 U.S. 183, 189 (1984) 

(quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982), in turn 

quoting Richards v. United States, 369 U.S. 1, 9 (1962))” (citations omitted). 

As I noted in my concurring opinion in Matter of Crammond, supra, at 23 

(Rosenberg, concurring), the commonly understood meaning of the word 

“felony” refers to a degree of crime that is especially serious and that does 

not include misdemeanors. See United States v. Graham, 169 F.3d 787, 

792-93 (3d Cir.), cert. denied, 528 U.S. 845 (1999) (acknowledging a 

uniformly accepted federal standard for differentiating between felonies and 

misdemeanors); see also Pacheco v. INS, 225 F.3d 148, 156 (2d Cir. 2000) 

(Straub, J., dissenting) (“[T]here can be little argument that the word ‘felony’ 

is commonly understood—and statutorily defined—to include crimes 

punishable by prison terms of greater than one year.”), cert. denied, 533 

U.S. 904 (2001); Matter of Crammond, supra, at 18 (Filppu, concurring) 

(“The plain or natural reading of the word ‘felony’ would not include 

misdemeanors.”). The term “felony” also is uniformly distinguished in the 

United States Sentencing Guidelines Manual § 2L1.2, cmt. n.1; in Black’s 

Law Dictionary 633 (7th ed. 1999); and in Webster’s Third New Int’l 

Dictionary 836 (1993). In addition, the word “aggravated” has a commonly 

accepted meaning, typically modifying another word to describe a situation 

that is worse, enhanced, or more severe in some way. See, e.g., Black’s Law 

Dictionary, supra, at 65 (defining the word “aggravated,” when used to 

describe a crime, as “made worse or more serious by circumstances such as 

violence, the presence of a deadly weapon, or the intent to commit another 

crime”); Webster’s Third New Int’l Dictionary, supra, at 41 (defining the 

verb to “aggravate” to mean “to make worse, more serious, or more severe”). 

Moreover, “it is quite clear that ‘aggravated felony’ defines a subset of the 

broader category ‘felony.’” Pacheco v. INS, supra, at 157 (Straub, J., 

dissenting) (“Common sense and standard English grammar dictate that when 

an adjective—such as ‘aggravated’—modifies a noun—such as ‘felony’—the 

combination of the terms delineates a subset of the noun.”). 

1 We vacated that decision on jurisdictional grounds upon learning that the respondent had 

departed the United States prior to our order, but we did not reconsider or vacate the decision 

on the merits. 

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It is well settled that “[w]here Congress uses terms that have accumulated 

settled meaning . . . a court must infer, unless the statute otherwise dictates, 

that Congress means to incorporate the established meaning of these terms.” 

NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981); see also United States 

v. United States Gypsum Co., 438 U.S. 422, 437 (1978) (“Congress will be 

presumed to have legislated against the background of our traditional legal 

concepts . . . .”). The majority opinion offers no justification for concluding 

that, since our decision in Matter of Crammond, supra, the settled meaning 

of the terms has changed or a different meaning of the terms is warranted. 

Second, the basis on which the majority rests its decision, coupled with our 

finding in Matter of Crammond, supra, at 11, leaves little doubt that the 

language used in section 101(a)(43)(A) is not plain. Id. (“We do not find a 

clear expression of congressional intent in the plain language of section 

101(a)(43) of the Act.”). At the very least, given our disparate interpretations 

in less than a 2-year period, the language appears to be ambiguous in the 

practical sense. See Matter of Small, 23 I&N Dec. 448, 451 (Filppu, 

dissenting) (“There is substantial room for disagreement on the question 

whether a misdemeanor may constitute an ‘aggravated felony’ under section 

101(a)(43)(A) . . . .”). 

If the term “aggravated felony” is not to be interpreted literally, based on 

the plain and commonly understood meaning of the two words that make up 

the term, then the interpretation of such an apparently ambiguous term is 

subject to the controlling principles of statutory construction. The majority 

opinion neither mentions, nor observes, the foremost of the principles of 

construction applicable to immigration cases: “[W]e will not assume that 

Congress meant to trench on [the immigrant’s] freedom beyond that which is 

required by the narrowest of several possible meanings of the words used.” 

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (emphasis added) 

(recognizing that “deportation is a drastic measure and at times the equivalent 

of banishment or exile” (citing Delgadillo v. Carmichael, 332 U.S. 388 

(1947))). 

The Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), 

reflects that this rule maintains its currency today and applies even to 

interpretations of the plain language of the statute under the first prong of the 

test prescribed in Chevron, U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 842 (1984). See INS v. St. Cyr, supra, at 320 

(recognizing “‘the longstanding principle of construing any lingering 

ambiguities in deportation statutes in favor of the alien’” (quoting INS v. 

Cardoza-Fonseca, supra, at 449)). Thus, we are obliged to opt for the more 

narrow reading, i.e., the one that will result in less harsh removal 

consequences. But the majority ignores this rule and does not even appear 

to consider it in reaching its conclusion that a misdemeanor under state law 

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should be considered a felony if the offense sounds like one that is articulated 

under the aggravated felony definition. 

The majority invokes the decisions of the United States Courts of Appeals 

for the Sixth, Seventh, and Eleventh Circuits—none of which controls the 

result in the respondent’s case—to buttress the result it reaches. It reiterates 

the holding of the Seventh Circuit, which had already been issued at the time 

we decided Matter of Crammond, supra, and notes that two other circuits 

have reached similar interpretations. It cites to the decision of the Ninth 

Circuit, which has not addressed this particular issue at all, and speculates 

that a state law misdemeanor might qualify as an aggravated felony in that 

jurisdiction. United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir. 

2002) (stating that “an offense classified by state law as a misdemeanor can 

be an ‘aggravated felony’ . . . if the offense otherwise conforms to the federal 

definition of ‘aggravated felony’”) (emphasis added)); Matter of Small, supra, 

at 450; see also Wireko v. Reno, 211 F.3d 833, 836 (4th Cir. 2000) 

(distinguishing section 101(a)(43)(B) of the Act from section 101(a)(43)(F), 

under which an offense with a sentence of at least 1 year is an aggravated 

felony). 

The existing circuit court rulings that address section 101(a)(43)(A) of the 

Act are questionable and do not mandate our adoption of a nationwide rule. 

For example, in Guerrero-Perez v. INS, 242 F.3d 727, 736 (7th Cir.), reh’g 

denied, 256 F.3d 546 (7th Cir. 2001), the Seventh Circuit pointed to 

Congress’ grouping of the crime of sexual abuse of a minor with the crimes 

of murder and rape in subparagraph (A) of section 101(a)(43) as “a fairly 

strong indication, albeit a limited one . . . , that Congress intended both 

misdemeanor and felony convictions for sexual abuse of a minor to be 

considered aggravated felonies.” However, the grouping of sexual abuse of 

a minor with murder and rape, crimes almost universally classified as 

felonies, appears to provide greater support for the argument that Congress 

intended to cover only felony offenses involving sexual abuse of a minor. 

Similarly, the reasoning of the Eleventh Circuit was that “[b]y adding 

sexual abuse of a minor to the definition of ‘aggravated felony’ without any 

reference to a term of imprisonment, Congress broadened the coverage of the 

‘aggravated felony’ classification.” United States v. Marin-Navarette, 

244 F.3d 1284, 1286 (11th Cir.), cert. denied, 122 S. Ct. 317 (2001). The 

Seventh Circuit noted that “[t]here is no explicit provision . . . directing that 

the term ‘aggravated felony’ is limited only to felony crimes. We therefore 

are constrained to conclude that Congress, since it did not specifically 

articulate that aggravated felonies cannot be misdemeanors, intended to have 

the term aggravated felony apply to the broad range of crimes . . . .”

Guerrero-Perez v. INS, supra, at 737 (citation omitted); see also United 

States v. Gonzales-Vela, 276 F.3d 763, 766-68 (6th Cir. 2001). 

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However, there is no basis for reading “including a misdemeanor” into the 

aggravated felony offenses defined in section 101(a)(43)(A) of the Act. 

When Congress wished to expand the scope of the aggravated felony 

classification to encompass offenses that would otherwise be considered 

misdemeanors, it did so expressly. See, e.g., sections 101(a)(43)(F), (G) of 

the Act (imposing a sentence requirement of “at least one year” that 

encompasses misdemeanor offenses in which a sentence of 1 year may be 

imposed); United States v. Graham, supra, at 792 (finding that the term 

“includes certain misdemeanants who receive a sentence of one year” 

(emphasis added)). It is well settled that where language is included in one 

section of a provision and omitted in another section, the disparate inclusion 

or exclusion is presumed to be intentional. INS v. Cardoza-Fonseca, supra, 

at 432 (citing Russello v. United States, 464 U.S. 16, 23 (1983) (citing United 

States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))). 

As the Third Circuit has noted, “An intent to broaden the coverage of the 

aggravated felony classification . . . is not necessarily an intent to include 

misdemeanors in that category.” United States v. Graham, supra, at 792. 

Furthermore, we have only recently found it inappropriate to read into a 

statute additional provisions that Congress did not expressly articulate. See 

Matter of Salazar, 23 I&N Dec. 223, 227 (BIA 2002) (ruling that “under the 

plain language of section 101(a)(48)(A) of the Act, we have no authority to 

make such an exception” where Congress did not provide one). Given this 

authority, I conclude that each subparagraph of section 101(a)(43) of the Act 

must be read and interpreted according to its own terms. 

I cannot agree that the appropriate exercise of the Board’s authority in this 

case is to take a poll of circuit court decisions and reach a result based on 

one, two, or even several circuit court decisions. The Board has been 

recognized as having unique expertise in interpreting the complexities and 

substantive concerns attendant to the implementation of the immigration laws, 

and the meaning of the provision articulated by Congress in section 

101(a)(43)(A) of the Act is no exception. INS v. Aguirre-Aguirre, 526 U.S. 

415, 424-25 (1999). Nothing about this case suggests that we should defer 

to a particular decision of one or two circuit courts in exercising our 

authority, and to do so simply begs the question. 

Our responsibility to construe the immigration law requires deliberation, 

analysis, and time to grapple with the legal issues that are posed in the 

context of factual circumstances presented in individual appeals. It is not 

merely a matter of tallying circuit law interpretations. And, admittedly, such 

deliberation takes longer than simply pronouncing a nationwide rule based on 

the most restrictive interpretation of the statutory language. 

In my view, the majority has opted for a seemingly uniform result that 

completely skips over the critical legal issue relating to the scope of 

aggravated felony offenses. Even putting our interpretive responsibility 

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aside, I believe that the majority has reached an erroneous conclusion as a 

matter of law. Therefore, I dissent. 

457