[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15446 ELEVENTH CIRCUIT
MARCH 10, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A035-089-741
AGOSTINO ACCARDO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 10, 2011)
Before CARNES, PRYOR and COX, Circuit Judges.
CARNES, Circuit Judge:
Agostino Accardo, a native and citizen of Italy, seeks review of the final
order of removal by the Board of Immigration Appeals and the Board’s interim
order, which found that Accardo was subject to removal under the Immigration and
Nationality Act because he had been convicted of an “aggravated felony.” The
Board concluded that a violation of 18 U.S.C. § 892(a) is categorically a crime of
violence. We disagree with the Board’s conclusion on the categorical approach
because § 892(a) encompasses some criminal behavior that falls within the
definition of “aggravated felony” and some that does not. For that reason, we grant
Accardo’s petition and remand to the Board for it to apply the modified categorical
approach and determine in the first instance whether Accardo was actually
convicted of an aggravated felony under that approach.
I.
In February 2007 Accardo pleaded guilty to violating 18 U.S.C. § 892(a) by
making an extortionate extension of credit. The Department of Homeland Security
initiated removal proceedings, charging that Accardo was removable pursuant to
INA § 237(a)(2)(A)(iii) as an alien who had been convicted of an aggravated
felony. Specifically, the Department argued that Accardo had been convicted of a
“crime of violence” as defined by 18 U.S.C. § 16, which constitutes an “aggravated
felony” under INA § 101(a)(43)(F). The Department argued at a hearing before an
Immigration Judge that § 892(a) was a divisible statute and that Accardo had been
convicted of a crime of violence under the modified categorical approach. The IJ
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applied the modified categorical approach and granted Accardo’s motion to
terminate removal proceedings. The IJ determined that Accardo had neither been
convicted of, nor had he admitted to committing, a crime of violence even though
in his plea colloquy Accardo declared that he and his victim understood that her
“failure to make repayment of all [the] money could result in the use of criminal
means to cause harm to her reputation in the community.” Accardo never
indicated in the plea colloquy or otherwise that he would have harmed the person
or property of his victim, as distinguished from her reputation, if she failed to
repay the loan.
The Department of Homeland Security appealed the IJ’s decision, and the
BIA “sustained” the appeal and reinstated the removal proceedings. The Board
concluded that § 892(a) was categorically a crime of violence under 18 U.S.C. §
16(a), and it remanded the case to the IJ. Alternatively, the Board held that §
892(a) was categorically a crime of violence under 18 U.S.C. § 16(b). On remand,
the IJ issued an order of removal. Accardo again appealed to the Board, which
declined to review its earlier decision and dismissed Accardo’s appeal from the
order of removal. Accardo contends that the Board erred in finding that a
conviction for the extortionate extension of credit under 18 U.S.C. § 892(a), as
defined by 18 U.S.C. § 891(6), is a crime of violence under 18 U.S.C. § 16 and
thereby an aggravated felony within the meaning of the INA.
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II.
We review de novo whether a conviction qualifies as an “aggravated
felony.” Obasohan v. United States Att’y Gen., 479 F.3d 785, 788 (11th Cir.
2007), abrogated on other grounds by Nijhawan v. Holder, --- U.S. ---, 129 S.Ct.
2294 (2009); Hernandez v. United States Att’y Gen., 513 F.3d 1336, 1339 (11th
Cir. 2008).
The INA provides that “[a]ny alien who is convicted of an aggravated felony
at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA
specifically defines an “aggravated felony” to include a “crime of violence” as
defined by 18 U.S.C. § 16, for which the term of imprisonment is at least one year.
8 U.S.C. § 1101(a)(43)(F). A crime of violence is defined as:
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
18 U.S.C. § 16.
In order to determine whether the extortionate extension of credit qualifies
as a “crime of violence” under 18 U.S.C. § 16, “the statute directs our focus to the
‘offense’ of conviction[,] . . . [which] requires us to look to the elements and the
nature of the offense of conviction, rather than to the particular facts relating to
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petitioner’s crime.” Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 381 (2004);
see also Hernandez, 513 F.3d at 1339. If the statutory language encompasses some
offenses that would constitute aggravated felonies and others that would not, the
statute is “divisible.” See Jaggernauth v. United States Att’y Gen., 432 F.3d 1346,
1353 (11th Cir. 2005). In order to determine whether a conviction or guilty plea
under a divisible statute constitutes an aggravated felony, the Board should apply
the modified categorical approach by looking to “the record of conviction,” which
“includes the charging document, plea, verdict or judgment, and sentence.” Id. at
1355.
According to 18 U.S.C. § 892(a), “[w]hoever makes any extortionate
extension of credit, or conspires to do so, shall be fined under this title or
imprisoned not more than 20 years, or both.” 18 U.S.C. § 892(a). An
“extortionate extension of credit” is defined as:
any extension of credit with respect to which it is the understanding of the
creditor and the debtor at the time it is made that delay in making repayment
or failure to make repayment could result in the use of violence or other
criminal means to cause harm to the person, reputation, or property of any
person.
18 U.S.C. § 891(6). Section 892(a) encompasses offenses that would qualify as
crimes of violence under 18 U.S.C. § 16 because it criminalizes the extension of
extortionate loans where there is an understanding that failure to make repayment
“could result in the use of violence . . . to cause harm to the person . . . or property
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of any person.” 18 U.S.C. § 891(6). We agree with Accardo, however, that the
statute also covers offenses that do not constitute crimes of violence under either §
16(a) or § 16(b).
A.
Beginning with § 16(a), the question is whether the “use, attempted use, or
threatened use of physical force against the person or property of another” is an
element of the extortionate extension of credit. Our inquiry begins with the plain
language of the statute. See Harris v. Garner, 216 F.3d 970, 972–73 (11th Cir.
2000) (en banc). Section 891(6) provides that one engages in the extortionate
extension of credit if there is an understanding between both parties “that delay in
making repayment or failure to make repayment could result in the use of . . . other
criminal means to cause harm to the . . . reputation . . . of any person.” The
potential that a debtor could suffer harm to her reputation as a result of failing to
repay an extortionate loan is, therefore, a “realistic probability, not a theoretical
possibility.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 822
(2007). For example, a person could commit the offense by extending an usurious
loan with the understanding that he would release embarassing photographs to the
local newspaper if payments were tendered late or not at all. An interpretation that
included the attempted, threatened, or actual use of physical force as an element of
§ 892(a) in every case would render the word “reputation” superfluous, which
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would of course violate the well-established rule of statutory construction that we
must give effect to every word of a statute when possible. See Duncan v. Walker,
533 U.S. 167, 174, 121 S.Ct. 2120, 2125 (2001).
Despite Congress’ inclusion of “other criminal means” and the possibility of
injury to reputation in the language of the statute, other courts have interpreted §
891(6) to require violence, the threat of violence, or something akin to violence.
See United States v. Madori, 419 F.3d 159, 167 (2d Cir. 2005) (“Proving that both
parties knew at the time that the loan was ‘extortionate’ requires the government to
establish that [the victim] understood that a threat of violence existed.”); United
States v. Allen, 127 F.3d 260, 266 (2d Cir. 1997) (“Crucial to conviction under this
statute is proof that both the creditor and the debtor understood when the loan was
made that force could be used to collect the loan at issue.”); United States v.
Spillone, 879 F.2d 514, 526 (9th Cir. 1989) (“It is the mutual understanding of the
parties to the transaction that failure to repay could lead to violence . . . that the
statute requires.”); United States v. Pacione, 738 F.2d 567, 572 (2d Cir. 1984)
(“[T]he term ‘other criminal means’ was meant to supplement the context of
‘violence’ so as to punish those who forced their non-paying victims into
committing crimes.”).
On one occasion, this Court has made a statement consistent with those
decisions from other circuits. Robert Suris Gen. Contractor Corp. v. New Metro.
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Fed. Sav. & Loan Ass’n, 873 F.2d 1401, 1405 (11th Cir. 1989) (“Because neither
the conduct here alleged nor that in Pacione involved anything akin to violent
collection means, neither falls within the ambit of the Extortionate Credit
Transaction Act.”) In Suris, we held that the creation of false loan documents that
were backed by an implied threat of perjury failed to constitute a predicate
violation of § 892 for a civil RICO claim. Id. at 1405. The reference to Pacione
and “violent collection means” relied on by the Board, however, is dicta. We first
observed in Suris that the plaintiff did not even suggest that the defendants
committed or threatened to commit perjury. Instead, Suris’ “‘extortion’ assertion
rest[ed] on a dual speculation (that defendants would sue on the notes and would
then commit perjury in court).” Id. From that, we concluded “that such
testimonial and documentary evidence, accepted and given the benefit of all
reasonable inferences, shows at most contractual facts that cannot be reasonably
construed as a threat of perjury.” Id. Without even an allegation that the
defendants threatened perjury, there could be no predicate violation of § 892(a),
even by “other criminal means.” As a result, any statement or implication in Suris
that § 892 requires something “akin to violent collection means” is dicta; that
decision did not hold that violence was required to violate § 892.
Likewise, the decisions from other circuits construing the phrase “other
criminal means,” have not involved potential harm to a debtor’s reputation as a
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consequence of noncompliance; while they have held that violence or the threat of
violence is enough to violate § 892(a), they have not held that it cannot be violated
by a non-violent threat to damage reputation. See Madori, 419 F.3d at 167
(holding that “a debtor’s belief that a creditor is connected to organized crime may
be introduced since it evidences the debtor’s understanding that a threat of violence
exists”); Allen, 127 F.3d at 266 (holding that a creditor’s recounting of a single
previous instance in which he resorted to violence to collect on an extortionate loan
was insufficient to support a conviction under § 892, particularly when the
defendant secured sufficient collateral for the loan at issue); Spillone, 879 F.2d at
526 (explaining that under § 892(a) a mutual understanding that violence may
result is enough, even without an actual fear of violence); Pacione, 738 F.2d at 572
(holding that § 892(a) did not criminalize the recording of a falsified mortgage as
penalty for failure to repay an extortionate loan because Congress did not intend
the phrase “other criminal means” to mean “any criminal means”).
Nevertheless, in this case the Board concluded that § 892(a) was
categorically a crime of violence under § 16(a) because it always involves the use,
attempted use, or threatened use of physical force against the person or property of
another as an element of the offense. But the decisions interpreting the use of
“other criminal means” cited by the Board do not stand for the proposition that one
cannot violate § 892(a) without the attempted, threatened, or actual use of violence.
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Even the Second Circuit’s Pacione, the progenitor of the line of cases interpreting
“other criminal means” to require something “akin to violence,” did not go so far
as to read out of the statute the possibility that a creditor and debtor could mutually
understand that failure to repay a loan could result in non-violent, yet criminal,
harm to the debtor’s reputation. In fact, the Second Circuit explicitly indicated that
its analysis did not “attempt to ascertain the precise limits of the statute.” Pacione,
738 F.2d at 572. The fact that the defendant did not resort to or threaten the use of
“extra-legal methods” in encouraging his debtor to repay the loan on time was
enough for the Second Circuit to uphold the district court’s dismissal of the
indictment in that case. Id. (citing United States v. Natale, 526 F.2d 1160, 1165
(2d Cir. 1975)).
As the court in Pacione explained, “[a]bsent threats of violence or other
extra-legal methods to enforce such loans, Congress did not intend to add the
federal proscriptions of the extortionate credit transactions statute to those already
existing at the state level.” Id. at 573 (emphasis added); see also id. at 571–72
(“[C]ongress was concerned primarily with the use of actual and threatened
violence by members of organized crime engaged in loan sharking . . . .”)
(emphasis added). Thus, despite the seemingly broad brush courts have used to
paint their interpretations of § 892(a), it is possible to violate that statutory
provision by an understanding that failure to comply with the terms of an
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extortionate loan could result in harm to the reputation of the debtor through non-
violent but still extra-legal means. Accordingly, § 892(a) is not categorically a
crime of violence under § 16(a) because a person may commit the offense even
without the attempted, threatened, or actual use of physical force against the person
or property of another.
B.
The Board concluded that even if § 892(a) were not categorically a crime of
violence under § 16(a), it was one under § 16(b). We disagree. Section 16(b)
further defines a “crime of violence” to include “any other offense that is a felony
and that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.” 18 U.S.C. § 16(b). According to the Supreme Court, § 16(b) sweeps
more broadly than § 16(a) and covers “offenses that naturally involve a person
acting in disregard of the risk that physical force might be used against another in
committing an offense.” Leocal v. Ashcroft, 543 U.S. at 10, 125 S.Ct. at 382–83.
While § 16(b) is broader than § 16(a), the use of physical force or the substantial
risk that physical force will be used is required in both subsections. Id. at 11, 125
S.Ct. at 383. “The reckless disregard in § 16 relates not to the general conduct or
to the possibility that harm will result from a person’s conduct, but to the risk that
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the use of physical force against another might be required in committing a crime.”
Id. at 10, 125 S.Ct. at 383.
Section 892(a) is not categorically a crime of violence under § 16(b) because
it does not invariably “by its nature, involve a substantial risk that physical force
against the person or property of another may be used in the course of committing
the offense.” 18 U.S.C. § 16(b) (emphasis added). An extension of credit is
extortionate, and thereby a violation of § 892(a), when a loan is extended with an
understanding between the creditor and debtor that failure to repay it could result
in harm to the debtor’s person, property, or reputation through violence or other
criminal means. Every violation of the subsection does not involve the risk that the
use of physical force against another will be required.
III.
“Generally speaking, a court of appeals should remand a case to an agency
for decision of a matter that statutes place primarily in agency hands. This
principle has obvious importance in the immigration context.” I.N.S. v. Orlando
Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 356 (2002). Because the Board erred in
finding that § 892(a) was categorically a crime of violence, we remand so that the
Board may apply the modified categorical approach in the first instance. Under the
modified categorical approach, the Board “may determine which statutory phrase
was the basis for the conviction by consulting a narrow universe of ‘Shepard
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documents’ that includes any charging documents, the written plea agreement, the
transcript of the plea colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” United States v. Palomino, 606 F.3d 1317, 1337
(11th Cir. 2010). Having not made an inquiry using the modified categorical
approach in this case ourselves, we imply no view about what the result of should
be.
Accordingly, we GRANT the petition and REMAND this case to the BIA in
order for it to determine, using the modified categorical approach, whether
Accardo’s conviction under § 892(a) qualifies as a crime of violence and is
therefore an aggravated felony.1
1
This case was decided without oral argument pursuant to 11th Cir.R.34-3(f).
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