United States Court of Appeals
For the First Circuit
No. 12-1269
JOSE DEMETRIO SOTO-HERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Selya and Thompson,
Circuit Judges.
Robert D. Watt, Jr. for petitioner.
James E. Grimes, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, with
whom Stuart F. Delery, Acting Assistant Attorney General, and Linda
S. Wernery, Assistant Director, were on brief, for respondent.
August 30, 2013
HOWARD, Circuit Judge. The petitioner seeks review of a
decision by the Board of Immigration Appeals (BIA) holding that a
prior conviction for the unlawful transfer of firearms rendered him
statutorily ineligible for cancellation of removal. The petitioner
argues that the BIA committed legal error in determining that his
one-time sale of a single firearm constituted "trafficking in
firearms" under 8 U.S.C. § 1101(a)(43)(C). Because the BIA's
determination involved a permissible construction of the
Immigration and Naturalization Act (INA), we deny the petition for
review.
I. Facts and Background
Jose Demetrio Soto-Hernandez (Soto) is a native and
citizen of the Dominican Republic. He entered the United States
lawfully as a permanent resident in 1996. In June of 2003, Soto
was convicted of the assault and battery of a former girlfriend in
violation of Rhode Island General Laws § 11-5-3 and § 12-29-5. Two
years later, in June of 2005, the Department of Homeland Security
(DHS) initiated removal proceedings against Soto pursuant to
8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of
domestic violence. At his removal hearings, Soto conceded his
removability, but filed an application for cancellation of removal
under 8 U.S.C. § 1229b.
Pursuant to 8 U.S.C. § 1229b, an alien who is deportable
from the United States may be considered for cancellation of
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removal provided that he meets three criteria. First, the
applicant must have been admitted as a lawful permanent resident
for at least five years; second, the applicant must have resided in
the United States continuously for at least seven years; third, the
applicant must never have been convicted of an aggravated felony.
8 U.S.C. § 1229b(a). As defined in 8 U.S.C. § 1101(a)(43)(C), an
aggravated felony includes "illicit trafficking in firearms." Id.
In June of 2005, around the same time that DHS instituted the
removal proceedings, Soto was convicted of unlawfully delivering a
.45 caliber semi-automatic pistol to a purchaser "without complying
with" the Rhode Island General Laws. Specifically, Soto had
violated the state prohibition on the delivery of a pistol or
revolver less than seven days following an application for
purchase, see R.I.G.L. § 11-47-35, as well as the requirement that
pistols be delivered unloaded, securely wrapped, and with the bill
of sale enclosed, see R.I.G.L. § 11-47-26. He was sentenced to two
concurrent, suspended sentences of three years' imprisonment. The
Immigration Judge (IJ) found that Soto's conviction satisfied the
definition of an aggravated felony under 8 U.S.C. § 1101(a)(43)(C)
and pretermitted Soto's application for cancellation of removal.
Soto appealed the IJ's determination to the BIA, arguing
that his conduct could not constitute "illicit trafficking" because
it did not "rise to the level of his being in the business or a
merchant in the trading or dealing of firearms." The BIA
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acknowledged that 8 U.S.C. § 1101(a)(43)(C) does not define
"trafficking" with regard to firearms. It noted, however, that
Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), an earlier case
that addressed the same term in a consecutive provision of the INA
dealing with controlled substances, 8 U.S.C. § 1101(a)(43)(B), had
construed "traffic" pursuant to Black's Law Dictionary as
"commerce; trade; sale or exchange of merchandise, bills, money,
and the like" and trafficking as "trading or dealing in certain
goods." Id. at 541. The BIA had consequently concluded in Davis
that the "essen[ce]" of trafficking was its "business or merchant
nature, the trading or dealing in certain goods, although minimal
degree of involvement may be sufficient . . . ." Id. (emphasis
added). On this basis, the BIA held that Soto's delivery of a
firearm to a purchaser fit under the definition of trafficking and
affirmed the IJ's determination that Soto's conviction constituted
an aggravated felony.
Soto now petitions for review.
II. Discussion
We review the BIA's conclusions of law de novo. Vasquez
v. Holder, 635 F.3d 563, 565 (1st Cir. 2011). Where the BIA's
legal conclusions concern statutes and regulations related to
immigration matters, however, we grant the BIA's interpretations
Chevron deference. Mejia-Orellana v. Gonzales, 502 F.3d 13, 16
(1st Cir. 2007); see also Negusie v. Holder, 555 U.S. 511, 516
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(2009) ("Consistent with the rule in [Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)], the
BIA is entitled to deference in interpreting ambiguous provisions
of the INA."). When a statute "is silent or ambiguous with respect
to the specific issue" before the court, we consequently ask only
"whether the agency's answer is based on a permissible construction
of the statute." I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999) (quoting Chevron, 467 U.S. at 843) (internal quotation marks
omitted). We "must uphold the BIA's interpretation . . . so long
as it is reasonable and consistent with the statute." Rumierz v.
Gonzales, 456 F.3d 31, 37 (1st Cir. 2006).
A. "Trafficking" in Firearms
Under 8 U.S.C. § 1229b(a), an applicant who seeks
cancellation of removal must demonstrate that he has "not been
convicted of any aggravated felony." Id.; see also 8 U.S.C.
§ 1229a(c)(4)(A)(i) (clarifying that an alien seeking protection
from removal "has the burden of proof to establish that the alien
. . . satisfies the applicable eligibility requirements"). An
"aggravated felony" is defined in 8 U.S.C. § 1101(a)(43) as
including the "illicit trafficking in firearms or destructive
devices." Id. As the BIA observed, the statutory scheme leaves
the term "trafficking" undefined. See Kuhali v. Reno, 266 F.3d 93,
108 (2d Cir. 2001) (noting that "the INA does not define the term
"trafficking" in § 101(a)(43)(C)"); accord Joseph v. Att'y Gen. of
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U.S., 465 F.3d 123, 128 (3d Cir. 2006). Faced with this ambiguity,
the BIA in this case construed "trafficking in firearms" as any
activity involving the commercial exchange of a firearm, including
a single past transaction.
The BIA's construction is a permissible interpretation of
8 U.S.C. § 1101(a)(43)(C). Where Congress fails to specify the
meaning of a statutory term, "courts typically read statutory terms
to convey their ordinary meaning, including as reflected in
dictionary definitions." United States v. Knott, 256 F.3d 20, 28
(1st Cir. 2001); see also S.E.C. v. Tambone, 597 F.3d 436, 443 (1st
Cir. 2010) (en banc) ("One reference point for determining the
ordinary meaning of a word is its accepted dictionary
definition."). In construing "trafficking" as an activity defined
purely by its "business or merchant nature," the BIA relied on the
term's official definition in Black's Law Dictionary as "commerce;
trade; sale or exchange of merchandise, bills, money, and the
like." Davis, 20 I. & N. Dec. at 541 (quoting Black's Law
Dictionary 1240 (5th ed. 1979)). Although Soto urges that the
"plain language definition" of commerce requires some large-scale
business activity, we cannot hold that the BIA's interpretation of
commerce as focusing primarily on some element of financial
exchange is impermissible. Indeed, the BIA's emphasis on the
"merchant nature" of Soto's conduct conforms with the definitions
of "trafficking" previously espoused by the Supreme Court and this
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court. See, e.g., Lopez v. Gonzales, 549 U.S. 47, 53 (2006)
("[O]rdinarily 'trafficking' means some sort of commercial
dealing."); Urena-Ramirez v. Ashcroft, 341 F.3d 51, 57 (1st Cir.
2003) ("Courts define 'illicit trafficking' as illegally 'trading,
selling or dealing' in specified goods." (quoting Kuhali, 266 F.3d
at 107)); Bruno v. United States, 289 F. 649, 655 (1st Cir. 1923)
("Traffic . . . means to pass goods or commodities from one person
to another for an equivalent in goods or money." (internal
quotation marks and citation omitted)).
Furthermore, the BIA's definition conforms to the
agency's own precedent in interpreting the INA. "The normal rule
of statutory construction assumes that identical words used in
different parts of the same act are intended to have the same
meaning." Sorenson v. Sec'y of Treasury of U.S., 475 U.S. 851, 860
(1986) (internal quotation marks and citations omitted); see also
United States v. Jimenez, 507 F.3d 13, 19 (1st Cir. 2007) (finding
that use of an "identical" phrase in consecutive subsections
"strongly intimat[es] that it has the same meaning in both"). In
defining "trafficking in firearms" under § 1101(a)(43)(C), the BIA
relied on its established interpretation of the same term in a
neighboring provision of the INA discussing "trafficking in a
controlled substance." See Davis, 20 I. & N. Dec. at 541; 8 U.S.C.
§ 1101(a)(43)(B). The BIA also emphasized its longstanding
precedent that a single conviction for the sale of narcotics
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qualifies an alien as a drug "trafficker" under the statute. See
Matter of Roberts, 20 I. & N. Dec. 294, 301 (BIA 1991) (finding
that one conviction for sale of cocaine brought the respondent
within the definition of a drug trafficker); Matter of P-, 5 I. &
N. Dec. 190, 191-92 (BIA 1953) (finding that an applicant's "first
and only" attempt to sell drugs qualified him as a trafficker).
The BIA's consistent interpretation of "trafficking" in
§ 1101(a)(43)(B) as a term that encompasses even isolated
commercial dealings provides a strong foundation for the BIA's
adoption of a similar definition of "trafficking" in
§ 1101(a)(43)(C).
We do not dispute that "trafficking" may reasonably be
read to imply some element of large-scale commercial dealing. This
narrower reading, however, is not the only reasonable one. Under
Chevron review, we hold that the BIA's definition of "trafficking
in firearms" in 8 U.S.C. § 1101(a)(43)(C) as encompassing any
commercial exchange, in accordance with both dictionary definitions
and the BIA's own precedent in a neighboring provision of the INA,
is "reasonable and consistent with the statute." Rumierz, 456 F.3d
at 37.
B. Trafficking in "Firearms"
At oral argument, Soto's counsel also urged that
§ 1101(a)(43)(C)'s explicit reference to "trafficking in firearms,"
in the plural, precludes the BIA from applying the term to a one-
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time delivery of a single firearm. Because Soto failed to raise
this argument before either the IJ or the BIA, it is waived on
appeal. See Molina De Massenet v. Gonzales, 485 F.3d 661, 664 (1st
Cir. 2007) ("[A]rguments not raised before the BIA are waived due
to a failure to exhaust administrative remedies.").1
Even were we to confront the issue on the merits, Soto's
argument is flawed on its face. "In determining the meaning of any
Act of Congress, unless the context indicates otherwise . . . words
importing the plural include the singular." 1 U.S.C. § 1. While
this interpretive presumption may be rebutted where its application
renders a statute illogical or otherwise impracticable, see, e.g.,
United States v. Fior D'Italia, Inc., 536 U.S. 238, 263-64 (2002),
the reference to "trafficking" in § 1101(a)(43)(C) does not present
such a case. Cf. United States v. Foote, 413 F.3d 1240, 1246 (10th
Cir. 2005) (applying 1 U.S.C. § 1 to hold that "trafficking in a
single counterfeit good constitutes trafficking in 'goods'" under
the Counterfeit Trademark Act). Congress's reference to "firearms"
1
Soto's briefs to the IJ and to the BIA argue only, and far
more vaguely, that "the conduct of the Respondent does not rise to
the level of his being in the business or a merchant in the trading
or dealing of firearms." At Soto's immigration hearing, Soto's
counsel did not raise the number of weapons sold, arguing instead
that "trafficking at least as it relates to the weapon would have
to constitute something more than a single sale" (emphasis added).
To the extent that these statements may have implicitly sought to
incorporate Soto's second argument, they were "insufficient to put
the agency on notice of [Soto's] claim." See Molina De Massenet,
485 F.3d at 664 n.2. Indeed, the BIA explicitly identified Soto's
only argument on appeal as the claim that his conviction "was not
an aggravating felony because he did not 'traffic' firearms."
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in the plural in § 1101(a)(43)(C) does not, in itself, render the
BIA's construction of the provision as encompassing the sale of a
single firearm impermissible.
C. Rule of Lenity
Finally, Soto argues that the rule of lenity requires
this court to interpret immigration statutes in the light most
favorable to the alien facing deportation. Because
§ 1101(a)(43)(C) leaves the term "illicit trafficking" undefined,
Soto claims that the term is ambiguous and should be read to
exclude his one-time sale.
As the government notes, we have consistently limited the
application of the rule of lenity to criminal statutes. See, e.g.,
Lawson v. FMR LLC, 670 F.3d 61, 70 n.12 (1st Cir. 2012) (noting
that "the rule of lenity . . . is used only in criminal cases");
Lopes v. Keisler, 505 F.3d 58, 63 n.2 (1st Cir. 2007) (finding the
rule of lenity "irrelevant" where the "statutes at issue are
immigration statutes"). The Supreme Court's own record of applying
the principle to immigration statutes, however, is more ambiguous.
On occasion, the Court has agreed that the rule of lenity is
appropriate only where a court is interpreting a criminal statute.
See, e.g., Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2589
(2010) (applying the rule in an immigration case where "the
critical language appears in a criminal statute"); Leocal v.
Ashcroft, 543 U.S. 1, 12 (2004) (applying the rule "[a]lthough here
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we deal with § 16 in the deportation context" because "§ 16 is a
criminal statute"). Yet the Court has also repeatedly suggested
that the rule of lenity may apply to immigration statutes
themselves, including 8 U.S.C. § 1101(a). See, e.g., Kawashima v.
Holder, 132 S. Ct. 1166, 1175-76 (2012) (assuming that the rule of
lenity could apply to § 1101(a)(45)(M), though finding the
provision sufficiently clear to preclude it); I.N.S. v. St. Cyr,
533 U.S. 289, 320 (2001) (noting "the longstanding principle of
construing any lingering ambiguities in deportation statutes in
favor of the alien"); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449
(1987) (same).
Ultimately, this case does not require us to confront
whether (and if so, when) the rule of lenity applies in the
immigration context, because Soto's argument would have us stretch
the principle beyond any reasonable application. As the Supreme
Court has clarified, "[b]ecause the meaning of language is
inherently contextual, [courts should not] deem a statute
'ambiguous' for purposes of lenity merely because it [i]s possible
to articulate a construction more narrow than that urged by the
Government." Moskal v. United States, 498 U.S. 103, 108 (1990).
"The rule of lenity . . . is not applicable unless there is a
grievous ambiguity or uncertainty in the language and structure of
the Act, such that even after a court has seize[d] every thing from
which aid can be derived, it is still left with an ambiguous
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statute." Chapman v. United States, 500 U.S. 453, 463 (1991)
(internal quotation marks and citations omitted). The definition
of the term "trafficking" in § 1101(a)(43)(C) is a legal question
that may satisfactorily be resolved through ordinary principles of
statutory interpretation, including reference to dictionaries and
neighboring statutory provisions. The BIA made use of these
precise principles in reaching its definition of trafficking as an
activity defined by its "business or merchant nature." Especially
in light of the deference owed to the BIA's constructions of the
INA, the rule of lenity cannot apply to contravene the BIA's
reasonable interpretation in this case.
III. Conclusion
For the foregoing reasons, the petition for review is
denied.
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