United States Court of Appeals
For the First Circuit
No. 02-2343
JOSE RAMON URENA-RAMIREZ,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Randy Olen on brief for petitioner.
Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Jennifer A. Parker, Attorney, Office of
Immigration Litigation, on brief for respondent.
August 22, 2003
SELYA, Circuit Judge. This case requires us to decide
for the first time whether an illegal alien, convicted under the
Travel Act for promoting an unlawful activity involving controlled
substances, remains eligible for adjustment of status. Concluding,
as we do, that the Board of Immigration Appeals (BIA) correctly
answered this question in the negative, we uphold the order of
removal and deny the alien's petition for judicial review.
I. BACKGROUND
The petitioner, José Ramón Urena-Ramirez, is a native of
the Dominican Republic. He originally entered the United States
under a false name and without a valid visa. Several years later,
federal authorities charged him with aiding and abetting the
distribution of cocaine. He pleaded guilty, inter alia, to a
reduced charge of traveling in interstate commerce to promote an
unlawful activity in violation of the Travel Act, 18 U.S.C. § 1952.
The sentencing court imposed a 21-month incarcerative term, to be
followed by three years of supervised release.
The Immigration and Naturalization Service (INS)
initiated removal proceedings on November 3, 1997.1 The INS
claimed that the petitioner was deportable on three grounds,
1
On March 1, 2003, the INS ceased to exist as an agency within
the Department of Justice. Its enforcement functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
Because the events at issue here predate that reorganization, we
continue to refer to the INS in this opinion.
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namely,(i) as an alien not in possession of a valid entry document,
8 U.S.C. § 1227(a)(1)(A); (ii) as an alien who had been convicted
of an offense "relating to" a controlled substance, id. §
1227(a)(2)(B)(i); and (iii) as an alien convicted of an aggravated
felony, id. § 1227(a)(2)(A)(iii). The government based the latter
two charges on the petitioner's Travel Act conviction.
At a removal hearing before an Immigration Judge (IJ),
the petitioner conceded deportability on the basis of his illegal
entry into the United States. He denied the other charges,
contending that the Travel Act violation was neither a drug-related
offense nor an aggravated felony. He also requested a
discretionary adjustment of status and waiver of deportation
pursuant to 8 U.S.C. § 1182(h).2
Relying on the record of the petitioner's conviction,
including the plea agreement (which revealed that the petitioner
had pleaded guilty to traveling in interstate commerce for the
specific purpose of promoting "a business enterprise involving
cocaine"), the IJ found that the Travel Act conviction constituted
both a drug-related offense and an aggravated felony. Accordingly,
the IJ declared the petitioner ineligible for discretionary relief,
8 U.S.C. § 1182(h), and ordered his removal. The BIA affirmed this
2
An alien ordinarily may seek adjustment of status to avoid
removal. 8 U.S.C. § 1255(a). Typically, that relief is at the
discretion of the Attorney General. Id. § 1182(h). Such a waiver
cannot be granted, however, if the petitioner has committed a drug-
trafficking offense or an aggravated felony. Id.
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decision without opinion. See id. § 1101(47)(B)(i); 8 C.F.R. §
1003.1(a)(7) (formerly designated as 8 C.F.R. § 3.1(e)(4)); see
also Albathani v. INS, 318 F.3d 365, 376-77 (1st Cir. 2003)
(describing operation of streamlined "affirmance without opinion"
procedure). This timely petition for judicial review followed.
II. ANALYSIS
The petitioner advances two closely related assignments
of error. First, he claims that the Travel Act is not a law
"relating to" a controlled substance. Second, he protests the
classification of his Travel Act conviction as an aggravated
felony.
We first consider the applicable standard of review.
This case hinges in substantial part on the proper determination of
what constitutes a violation of a law relating to a controlled
substance under the Immigration and Nationality Act (INA), 8 U.S.C.
§§ 1101-1537. The petitioner argues that the BIA incorrectly
construed the relevant section of the INA, 8 U.S.C. §
1227(a)(2)(B)(i), to include the Travel Act violation. In his
view, that statute cannot be deemed sufficiently related to a
controlled substance because the crime (traveling in interstate
commerce) is separate and distinct from the underlying (drug-
related) activity. For essentially the same reason, the petitioner
challenges the BIA's determination that the Travel Act violation
constituted "illicit trafficking," as that term is used in 8 U.S.C.
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§ 1101(a)(43)(B) — a determination that not only converted the
offense into an aggravated felony for purposes of 8 U.S.C. §
1227(a)(2)(A)(iii) but also eliminated any chance for the
petitioner to obtain discretionary relief (an adjustment of status
and withholding of deportation).
So viewed, this case turns on a pure question of law:
whether a particular crime (here, a violation of the Travel Act) is
a violation of a law relating to a controlled substance within the
purview of the INA. That question, as framed, does not implicate
the INS's exercise of administrative discretion. Consequently, the
question engenders de novo review.3 See INS v. Aguirre-Aguirre,
526 U.S. 415, 424-25 (1999) (explaining that courts normally review
de novo an agency's construction of federal statutes); Herrera-
Inirio v. INS, 208 F.3d 299, 304 (1st Cir. 2000) (same).
We turn next to the petitioner's principal argument:
that the Travel Act violation is separate and distinct from the
underlying (drug-related) activity. The BIA rejected this
argument. So do we.
The INA provides for the removal of an alien who has
"been convicted of a violation of . . . any law . . . relating to
3
Where Congress has entrusted an administrative agency with
discretion and the governing statute is silent or ambiguous anent
a particular issue, the agency's reading of the statute ordinarily
will be upheld if it is reasonable. See INS v. Cardoza-Fonseca,
480 U.S. 421, 448-49 (1987); Chevron U.S.A. Inc. v. Natural Res.
Def. Council, 467 U.S. 837, 842-43 (1984). This case does not
present the occasion for such deference.
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a controlled substance." 8 U.S.C. § 1227(a)(2)(B)(i). In
interpreting the phrase "relating to," the BIA looks to the degree
to which the violation in question is connected to underlying
(drug-related) activity. In re Espinoza-Gonzalez, 22 I. & N. Dec.
889 (BIA 1999). If the violation and the underlying activity are
"so closely related" that the two could not be considered "separate
or distinct," then the two are essentially one and the violation is
of a law "relating to" the underlying activity. Id. (quoting
Matter of Beltran, 20 I. & N. Dec. 521, 528 (BIA 1992)).
This brings us to the Travel Act, which provides in
relevant part:
Whoever travels in interstate or foreign
commerce . . . with intent to . . . promote,
manage, establish, carry on, or facilitate the
promotion, management, establishment, or
carrying on, of any unlawful activity, and
thereafter performs or attempts to perform
[any of the acts specified] shall be [punished
as provided].
18 U.S.C. § 1952(a)(3). The Travel Act defines the term "unlawful
activity" to include, among other things, "any business enterprise
involving . . . narcotics or controlled substances . . . ." Id. §
1952(b)(1).
Against this backdrop, we turn to the case at hand. As
said, the petitioner pleaded guilty to traveling in interstate
commerce to promote a business enterprise involving cocaine (a
controlled substance). The conduct underlying the proscribed
travel (the promotion of a business enterprise involving cocaine)
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was tantamount to aiding and abetting the distribution of
narcotics. The plea agreement makes manifest the petitioner's
admission of his involvement in that underlying conduct (and, thus,
his culpability for it). Cf. United States v. Salerno, 66 F.3d
544, 550 (2d Cir. 1995) (pleading guilty to interstate travel in
furtherance of drug trafficking is tantamount to pleading to a
felony drug offense). We see nothing separate or distinct, as a
practical matter, between the Travel Act violation and the
petitioner's involvement in the cocaine trade. Thus, common sense
indicates that the petitioner's violation of the Travel Act was a
violation of a law relating to a controlled substance.
In an effort to blunt the force of this reasoning, the
petitioner makes a number of counter-arguments. None has merit.
First, he suggests that a violation of the Travel Act
cannot be a violation of a law relating to a controlled substance
because the Travel Act covers a myriad of criminal activities, many
of them non-drug-related (e.g., gambling, bribery). As he sees it,
the Travel Act fundamentally relates to racketeering rather than to
drug trafficking (indeed, the Travel Act's placement in the United
States Code so indicates). For this reason, he likens his offense
to misprision of a conspiracy to possess an illegal narcotic — an
offense that the Sixth Circuit once ruled was not a violation of a
law relating to a controlled substance, see Castaneda De Esper v.
INS, 557 F.2d 79 (6th Cir. 1977) — and to the illegal carriage of
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a firearm during the commission of a felony — an offense that the
BIA once ruled was not a violation of a law relating to a
controlled substance notwithstanding that the felony in question
was itself drug-related, see Matter of Carrillo, 16 I. & N. Dec.
625 (BIA 1978).
We do not regard these quarter-century-old precedents as
persuasive authority here. In the first place, both cases were
decided under an earlier version of the INA, 8 U.S.C. § 1251(a)(11)
(1956) (repealed), which was not as sweeping in its definition of
a drug-related offense as is the current version. The Ninth
Circuit, in refusing to follow Castaneda De Esper and Carrillo on
facts very much like those of the case at bar, found this change in
the statutory language significant. See Johnson v. INS, 971 F.2d
340, 342 n.4 (9th Cir. 1992). We agree.
Second — and more important — the petitioners in
Castaneda De Esper and Carrillo were both found guilty of violating
general statutes that made no specific reference to drug-related
activity. Thus, in Castaneda De Esper, 557 F.2d at 84, the
petitioner was convicted under 18 U.S.C. § 4 for "having knowledge
of . . . a felony" and concealing that fact. Similarly, in
Carrillo, 16 I. & N. Dec. at 625, the petitioner was convicted
under 18 U.S.C. § 924(c) for illegally "carrying a firearm during
the commission of a felony." In both cases the statute of
conviction was a generic statute that did not mention controlled
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substances.4 Unlike those statutes, the Travel Act specifically
refers to drug-related activity. It criminalizes, inter alia,
travel in interstate commerce with the intent to promote, carry on,
or facilitate an unlawful activity, and specifically defines the
term "unlawful activity" to include business enterprises involving
controlled substances. 18 U.S.C. § 1952(a)(3)-(b)(1). This
congressional targeting of drug-related activity furnishes a much
closer nexus than is afforded by the generic statutes involved in
Castaneda De Esper and Carrillo.
We add, moreover, that Congress passed the Travel Act in
an effort to deny individuals who act for criminal purposes, such
as interstate drug trafficking, "access to the channels of
commerce." Erlenbaugh v. United States, 409 U.S. 239, 246 (1972).
The Travel Act is simply the mechanism that Congress chose to
accomplish regulation of the channels of commerce. See 18 U.S.C.
§ 1952 (1970) (adding "controlled substances" to the list of
unlawful activities contained in the Travel Act). The petitioner,
by traveling in interstate commerce to promote a narcotics
enterprise, thus violated a law specifically aimed at the
regulation of the narcotics trade. The fact that the Travel Act
4
The same is true of the state statute that criminalizes
solicitation of another "with intent to promote or facilitate the
commission of a felony or misdemeanor." Ariz. Rev. Stat. § 13-
1002(A). Thus, the Ninth Circuit's holding that a violation of
that generic statute was not a violation of a law relating to a
controlled substance, Coronado-Durazo v. INS, 123 F.3d 1322, 1326
(9th Cir. 1997), is equally distinguishable.
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also targets other types of interstate travel does not disqualify
it from service, in an appropriate case, as a law relating to
controlled substances. Accord Johnson, 971 F.2d at 342.
The petitioner also tries to analogize his Travel Act
conviction to a conviction for being an accessory after the fact.
See, e.g., In re Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997)
(holding that the crime of being an accessory after the fact, 18
U.S.C. § 3, does not relate to an antecedent controlled substance
offense because it "takes place subsequent to the completion of the
underlying felony" and is not "punishable equally as the underlying
substantive crime"). He argues that because the penalties for a
Travel Act violation and a narcotics violation are so different,5
a Travel Act violation cannot amount to a deportable offense. This
course of ratiocination does not journey far.
In Batista-Hernandez, the BIA focused its analysis of the
offense not merely on the penalties that it carried, but also "on
the historical treatment of the crime in question." Id. at 959.
The question there was to what extent the generic offense of
accessory after the fact related to the underlying (drug-related)
conduct. The BIA noted that the crime of accessory after the fact
takes place after the completion of the principal crime, and, as
5
A Travel Act violation carries with it a maximum penalty of
five years' imprisonment. See 18 U.S.C. § 1952(a)(3)(A). A
narcotics violation, however, can carry penalties of up to life
imprisonment, depending upon drug type and quantity. See 21 U.S.C.
§ 841(b).
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such, "does not aid in the commission of the [principal] offense."
Id. at 960. This is a far cry from the petitioner's case, in which
the Travel Act violation was part and parcel of his drug-
trafficking activity. The fact that the penalties differ, without
more, lacks the talismanic significance that the petitioner
attaches to it.
Next, the petitioner insists that his Travel Act
violation must be separate and distinct from his underlying
activity because one can be prosecuted simultaneously for both a
Travel Act infraction and for a specific drug-trafficking offense
(say, possession with intent to distribute). Cf. United States v.
Stafford, 831 F.2d 1479, 1481 (9th Cir. 1987) (a case in which the
defendant pleaded guilty both to traveling interstate to commit
bribery and to the underlying offense of bribery). That plaint
misses the point. The issue here is not whether the Travel Act
sometimes overlaps with other criminal statutes, but, rather,
whether a Travel Act violation is, in particular circumstances, a
violation of a law relating to a controlled substance. For
purposes of this inquiry, the fact that the elements of different
crimes may partially coincide is meaningless.
Finally, the petitioner strives to convince us that the
BIA reads the relevant section of the INA too broadly. We are not
persuaded. While adjudicators are bound in certain circumstances
to interpret the Travel Act narrowly, see Rewis v. United States,
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401 U.S. 808, 812-13 (1971); United States v. Hathaway, 534 F.2d
386, 398 (1st Cir. 1976), and to construe vague terms in favor of
the alien, Aybar-Alejo v. INS, 230 F.3d 487, 489 (1st Cir. 2000),
neither principle is apposite here. The question in this case is
whether section 1227(a)(2)(B)(i) covers offenses such as the
petitioner's Travel Act violation. That is a question of law, and
the BIA answered it correctly.
For these reasons, we hold that the Travel Act is a law
relating to controlled substances as long as there is a
sufficiently close nexus between the violation and the furtherance
of a drug-related enterprise. See Johnson, 971 F.2d at 342.
Because such a nexus exists here, the petitioner's Travel Act
violation amounted to a deportable offense under 8 U.S.C. §
1227(a)(2)(B)(i).
The petitioner's remaining point goes to the BIA's
determination that his Travel Act violation constituted a drug-
trafficking crime, and, as such, an aggravated felony under 8
U.S.C. § 1101(a)(43)(B). In the last analysis, this argument also
depends on whether the Travel Act violation can be construed as
relating to a controlled substance. Consequently, what we already
have said controls here. Courts define "illicit trafficking" as
illegally "trading, selling or dealing" in specified goods. Kuhali
v. Reno, 266 F.3d 93, 107 (2d Cir. 2001). Carrying on a business
enterprise that deals in narcotics is within this rubric. Thus,
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the BIA correctly ruled that the petitioner's Travel Act violation
constituted an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B)
(listing illicit trafficking in a controlled substance as an
aggravated felony).
III. CONCLUSION
We need go no further. For the reasons stated herein,
the petitioner was appropriately held deportable under 8 U.S.C. §§
1227(a)(2)(B)(i), 1227(a)(2)(A)(iii). Moreover, he was ineligible,
as a matter of law, for discretionary relief. See id. § 1182(h).
The petition for review must, therefore, be denied and dismissed.
It is so ordered.
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