United States Court of Appeals
For the First Circuit
No. 99-2187
EDWIN EMILE,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Stahl and Lynch,
Circuit Judges.
Abira Ashfaq, PAIR Project, for petitioner.
Nelda C. Reyna, Office of Immigration Litigation, Department
of Justice, Civil Division, with whom David W. Ogden, Assistant
Attorney General, Civil Division, and Hugh G. Mullane, Senior
Litigation Counsel, were on brief for respondent.
March 30, 2001
BOUDIN, Circuit Judge. Edwin Emile, a native and
citizen of Haiti, immigrated to the United States in 1971. In
1988, Emile was convicted in a Massachusetts state court of
possession of a controlled substance. In 1990, he was again
convicted, this time of indecent assault and battery on a child
under fourteen, Mass. Gen. Laws ch. 265, § 13B (1998); the
sentence was 350 days, of which 55 were served. In 1996, he was
convicted once again of assault and battery and sentenced to a
year in prison. Out of these convictions grew three efforts by
the Immigration and Naturalization Service ("INS") to deport
Emile.
The INS first acted against Emile in June 1990 based
on the 1988 drug conviction, but the proceedings were terminated
after the conviction was vacated by the state court. In August
1997, the INS began a second proceeding to remove Emile, this
time for the 1996 assault and battery conviction, see 8 U.S.C.
§ 1227(a)(2)(A)(iii) (Supp. II 1996). However, after the
immigration judge had ordered Emile deported, Emile's sentence
was reduced to eleven months--a month shy of the minimum
sentence for a deportable "crime of violence," id. §
1101(a)(43)(F), and thus the Board of Immigration Appeals (the
"Board") remanded the matter to the immigration judge for
reconsideration.
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On remand, the INS abandoned its request for removal
based on the 1996 conviction and substituted a new basis: the
1990 conviction for indecent assault and battery on a child
under fourteen. Although this conviction had earlier been known
to the INS, it became more useful for removal purposes when
Congress amended the Immigration and Nationality Act ("INA") in
1996 by adding "rape, or sexual abuse of a minor" to murder in
the first item on the list of deportable "aggravated felony"
offenses. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1966, Pub. L. No. 104-208, § 321(a)(1),
110 Stat. 3009-546, - 627 (codified at 8 U.S.C. § 1101(a)(43)(A)
(Supp. II 1996)). These new offenses, which Congress did not
further define, make the alien subject to automatic deportation
regardless of the length of sentence imposed.
After a succession of hearings in 1999, the immigration
judge found that the 1990 conviction qualified as "sexual abuse
of a minor" warranting deportation. The immigration judge
relied in part on a police incident report, admitted over
Emile's objection, that purported to describe the offense
conduct based on the statement of Emile's then stepdaughter, who
was thirteen at the time of the incident. She said that one
night when her mother was out, Emile, while inebriated, had made
sexual remarks, touched her chest under her nightgown, and
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touched her groin area although not the skin (for she was
wearing underwear). This was, she said, Emile's second effort
to fondle her.
On review, the Board upheld the deportation order,
using somewhat different reasoning than the immigration judge.
It agreed that Emile's violation comprised "sexual abuse of a
minor," relying in part on a definition borrowed from federal
criminal laws, see 18 U.S.C. §§ 2241-44 (1994 & Supp. II 1996).
It rejected Emile's claim that the police report should not be
considered, but--unlike the immigration judge--it found the
report unnecessary to the outcome. The Board also said that
Emile was not eligible for discretionary relief from
deportation. On this appeal, Emile contests both the
deportation and the refusal of his application for waiver; and
we begin with the deportation order.
The Board held Emile deportable on the ground that he
had been convicted of "sexual abuse of a minor" within the
meaning of the 1996 amendment to the INA. Two different, albeit
related, questions thus arise: one is what is meant by the
quoted phrase, and the other is whether Emile's conviction falls
within the rubric. The former is a routine although difficult
question of statutory interpretation; the latter takes us into
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the murky world of Taylor v. United States, 495 U.S. 575, 600
(1990), and its progeny.
The Definition. The 1996 amendment, adding "sexual
abuse of a minor" to the list of crimes warranting automatic
deportation, does not define the crime or otherwise explicitly
cross-reference a specific federal criminal statute. Compare 8
U.S.C. § 1101(a)(43)(A) (Supp. II 1996), with, e.g., id. §
1101(a)(43)(B) (1994) ("a drug trafficking crime (as defined in
section 924(c) of title 18)"). The Board says that it may
therefore construe the phrase itself under delegated authority
from the Attorney General, 8 C.F.R. § 3.1(d)(1) (2000). The INS
has regularly taken this position. See In re Bahta, Interim
Dec. 3437, 2000 WL 1470462 (BIA 2000); In re Rodriguez-
Rodriguez, Interim Dec. 3411, 1999 WL 731793 (BIA 1999).
Although enforcement agencies are not normally given
deference in construing criminal statutes, see Sutherland v.
Reno, 228 F.3d 171, 174 (2d Cir. 2000), the 1996 amendment
implements the immigration laws and does not impose a criminal
penalty. We agree that, under governing Supreme Court
precedent, the INS' reading of the phrase is entitled to
deference and, if reasonable, must be upheld. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 448 (1987). The Board has
declined to supply a complete definition, but it made clear here
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that it would generally regard conduct that (with the
appropriate federal nexus) would violate the federal sexual
abuse statutes, where the victim was a minor, as "sexual abuse
of a minor" within the meaning of the 1996 amendment.
The federal criminal code contains a chapter titled
"sexual abuse," 18 U.S.C. §§ 2241-48, comprising four different
sets of crimes: aggravated sexual abuse (section 2241), sexual
abuse (section 2242), sexual abuse of a minor or ward (section
2243), and abusive sexual contact (section 2244). The Board
here focused on "abusive sexual contact," which makes criminal
certain deliberate "sexual contact" under defined circumstances.
"Sexual contact" is itself defined in another section as
intentional touching, "either directly or through the clothing,"
of another person's genitals or other specified body parts "with
an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person." Id. § 2246(3).
It seems to us reasonable, and well within the Board's
discretion, to regard such conduct, by an adult against a minor,
as presumptively within the 1996 amendment. Emile argues that
such conduct should not, by itself, be classed as sexual abuse
of a minor because it does not fit the only crime so named
(section 2243) or--for that matter--either of the other two
crimes in the chapter whose section headings include the phrase
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"sexual abuse" (sections 2241 and 2242). The three crimes so
denominated are all quite serious: even the least (sexual abuse
of a minor) may result in up to fifteen years' imprisonment. By
contrast, the crime of abusive sexual contact, in Emile's
circumstances, would have carried a maximum penalty of two
years, see 18 U.S.C. § 2244(a)(3).1
But the arguments the other way are also weighty.
Neither the conduct described in section 2244(a)(3) nor the two-
year maximum sentence suggests a trivial crime. The federal
chapter captions all of the four crimes, including section 2244,
under the heading "sexual abuse."2 And, given the interpretive
latitude afforded to the agency, it is hard to exclude from the
1996 amendment adult conduct that is directed against a minor
and would unquestionably violate section 2244(a)(3) if it
occurred on federal property. See Lara-Ruiz v. INS, No. 99-
1
Because Emile's stepdaughter was under the age of 16 and he
was more than 4 years older, section 2244(a) made his offense
punishable by up to 2 years in prison. 18 U.S.C. § 2244(a)(3).
Absent such an aggravating age differential, the maximum penalty
would have been 6 months. Id. § 2244(b). We do not want to be
understood as endorsing the view that every possible violation
of the federal sexual abuse chapter would automatically
translate into a deportable offense.
2
Elsewhere in the federal criminal code, see 18 U.S.C. §
3509(a)(8) (1994), the term "sexual abuse" is used broadly
enough that it indubitably covers Emile's conduct, but it is
debatable how relevant this provision may be. See In re
Rodriguez-Rodriguez, 1999 WL 731793 (Guendelsberger,
dissenting).
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2868, 2001 WL 215953 (7th Cir. Mar. 6, 2001); cf. United States
v. Zavala-Sustaita, 214 F.3d 601, 605 (5th Cir.), cert. denied,
121 S. Ct. 434 (2000).
Thus far we have ignored legislative history because
there is very little directly in point. The conference report
on the 1996 amendment does little to explain the critical
phrase. See H.R. Conf. Rep. No. 104-828, subtit. B, § 321,
available at 1996 WL 563320 (Sept. 24, 1996). However, Emile's
counsel relies on the concurrent addition of a new statutory
basis for removal for crimes of "child abuse," 8 U.S.C. §
1227(2)(E)(i) (Supp. II 1996), and the House bill, H.R. 2202,
104th Cong. (1996), to argue that only very serious sexual abuse
was intended to be covered by the 1996 amendment adding sexual
abuse of a minor as a basis for automatic deportation.
But the House bill itself listed "abusive sexual
contact" after rape, aggravated sodomy, aggravated sexual abuse,
and sexual abuse, in its proposed new category of "crimes of
sexual violence." H.R. 2202, § 218 (a)(F). The provision draws
no distinction as to minors, but otherwise adopts word-for-word
and in order the headings of sections 2241, 2242, and 2244,
suggesting that Congress intended this new category to encompass
conduct that would be criminal under those provisions. Indeed,
even the dissenters in In re Rodriguez-Rodriguez recognized that
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"sexual abuse of a minor," as proposed in the 1996 amendment,
encompassed "sexual contact" offenses. 1999 WL 731793
(Guendelsberger, dissenting).
The Taylor Issue. This brings us to the second and
equally difficult question in this case. Emile was not
prosecuted under federal law; he was convicted under a
Massachusetts statute, Mass. Gen. Laws ch. 265 § 13B. Even if
we assume that "abusive sexual contact" by an adult directed to
a minor constitutes "sexual abuse of a minor" under the 1996
amendment to the INA, the question remains whether Emile was
"convicted" of such an offense. After all, section 13B says
nothing directly about "abusive sexual contact" or "sexual abuse
of a minor"; the state crime is indecent assault and battery on
a child under fourteen, and it is not further defined in the
statute, although state case law provides a considerable gloss.
At first blush, it might seem easy to bypass the state
statute since we "know" what Emile did. But there are two
problems: first, we "know" the nature of his actual conduct
only by relying on the police report, whose admissibility is
disputed, and second, a complex body of federal law developed
under the Taylor decision limits the extent to which courts are
allowed, at least in criminal sentencing, to look at actual
conduct--as opposed to looking at the statute of conviction as
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construed by the state courts, e.g., United States v. Preston,
910 F.2d 81, 86 & n.5 (3d Cir. 1990), cert. denied, 498 U.S.
1103 (1991). Emile makes arguments on both points.
Taylor, in its classic form, limits consideration to
the coverage of the state statute rather than the actual conduct
of the offender (but, as we will see, exceptions exist). Taylor
construed a federal criminal statute--the career offender
provisions of the criminal code, 495 U.S. at 577-78 (construing
18 U.S.C. § 924(e)(1988)). One could well argue that the Board
was not obliged to apply Taylor in construing the INA. However,
without much discussion, most circuits have assumed that Taylor
applies.3
We need not pursue the issue because the Board has
itself cited Taylor in the past, without quibble, in applying
the INA provisions that define deportable offense.4 And while
3
See Drakes v. Zimski, --- F.3d --- , 2001 WL 170872, at *2
(3d Cir. Feb. 20, 2001); United States v. Zavala-Sustaita, 214
F.3d 601, 603 (5th Cir.), cert. denied, 121 S. Ct. 434 (2000);
Solorzano-Patlan v. INS, 207 F.3d 869, 873-75 (7th Cir. 2000);
United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.
1999), cert. denied, 121 S. Ct. 1130 (2001); United States v.
Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993); United States
v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992).
4
See, e.g., In re Bahta, 2000 WL 1470462; In re Perez,
Interim Dec. 3432, 2000 WL 726849 (BIA 2000); In re Rodriguez-
Rodriguez, 1999 WL 731793; In re Sweetser, Interim Dec. 3390,
1999 WL 311950 (BIA 2000); In re Palacios-Pinera, Interim Dec.
3373, 1998 WL 911545 (BIA 1998); In re Alcantar, 20 I. & N. Dec.
801, 812 (BIA 1994).
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the Board did not mention Taylor by name in this case, it
effectively followed Taylor by relying upon the Massachusetts
statute rather than on Emile's conduct as described in the
police report. In substance, the Board concluded that section
13B focused upon conduct that would constitute sexual abuse of
a minor under the 1996 amendment.
By its terms, section 13B condemns only "an indecent
assault and battery on a child under the age of fourteen."
Emile points out that in the abstract, section 13B has been
described as including indecent touching directed against a
minor regardless of the actor's "specific intent," and not
necessarily "for the purpose of sexual arousal, gratification,
or offense," see Commonwealth v. Conefrey, 640 N.E.2d 116, 122-
23 (Mass. App. Ct. 1994), rev'd on other grounds, 650 N.E.2d
1268, 1273 (Mass. 1995). He concludes that the statute may
therefore include less serious behavior that is not intended to
have a sexual character.
The Supreme Judicial Court has expressly referred to
a conviction under section 13B as a "sex offense." Doe v. Sex
Offender Registry Bd., 697 N.E.2d 512, 515 (Mass. 1998). The
Massachusetts legislature has elsewhere classified a conviction
under section 13B as a "sex offense involving a child" and a
"sexually violent offense." Mass. Gen. Laws. ch. 6, § 178C
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(1998). We have reviewed dozens of cases and are unpersuaded
that section 13B has been applied by Massachusetts courts to
conduct other than intentional touchings of a sexual character
directed against minors. See, e.g., Commonwealth v. Knap, 592
N.E.2d 747, 748 (Mass. 1992); Commonwealth v. Nuby, 589 N.E.2d
331, 332 (Mass. App. Ct. 1992).5
Emile's claim that "intent" is not required stems from
Conefrey, which held that it was not error under section 13B to
refuse an instruction that the defendant's purpose must be
sexual arousal or the like and that it was sufficient that the
indecent touching was "intentional and deliberate." 640 N.E.2d
at 122. But the federal statute on sexual contact also does not
require an intent to arouse; it is enough to intend to "abuse,
humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person." 18 U.S.C. § 2246(3) (emphasis added).
Based on our reading of the state cases, we see no evidence that
anything much less or different would be required under section
13B.6
5
That serious conduct is involved might also be inferred
from the penalties provided: up to ten years' imprisonment for
a first offense and up to life in prison for a second. Mass.
Gen. Laws ch. 265, § 13B.
6
While Conefrey called a violation of section 13B a "strict
liability" crime, see also Knap, 592 N.E.2d at 749, we see this
as nothing more than the imposing of an objective rather than a
subjective test of what is indecent.
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Similarly, if there is daylight between the conduct
component of section 13B and the federal statute, we think it is
relatively slight. There is no indication that, as Emile
suggests, an arm around the waist would sustain a section 13B
conviction, cf. Commonwealth v. Mosby, 567 N.E.2d 939, 941-42
(Mass. App. Ct. 1991). It may be that there are some
"touchings" that would violate section 13B that might not be
"sexual contact" under the federal statute, but the discrepancy
does not appear to be very great. Compare id. at 941 ("thigh"),
with 18 U.S.C. § 2246(3) ("inner thigh").
Thus, we think that unlawful sexual contact with a
minor approximating the federal definition is presumptively
within the amended INA's scope, and that in neither intent nor
conduct does section 13B go much beyond the federal definition
or beyond a lay understanding of sexual abuse of a minor. Cf.
United States v. Baron-Medina, 187 F.3d 1144, 1146-47 (9th Cir.
1999). If so, a conviction under section 13B strongly indicates
that the defendant is deportable under the 1996 amendment. We
refrain, however, from giving an open-ended endorsement to this
view. If and when a defendant is convicted under section 13B
for conduct shown to be markedly less serious, and is sought to
be deported based on that conviction, we will consider the issue
afresh. Compare Zavala-Sustaita, 214 F.3d at 605.
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However section 13B is read, Taylor's requirements
would still be satisfied, at least in this circuit. Taylor
could have been taken as a rigid prohibition on looking at
actual conduct; but the Supreme Court itself carved exceptions,
495 U.S. at 602 (the charging instrument and jury instructions),
and the lower courts have tended to be still more generous. 7
Pertinently, this circuit has allowed the use of police reports
in the criminal sentencing context to identify actual conduct
where the state statute encompasses conduct within and without
the federal definition. See United States v. Shepard, 231 F.3d
56, 70 (1st Cir. 2000). In this case, Emile's conduct, as
described in the police report, easily fits within the 1996
amendment.
This brings us to Emile's claim that it violates due
process to rely on the police report.8 Since deportation is
civil, the Confrontation Clause does not apply. See Austin v.
United States, 509 U.S. 602, 608 n.4 (1993). As for due
process, which remains as a constraint, see Hernandez v. Reno,
7See, e.g., United States v. Palmer, 68 F.3d 52, 59 (2d Cir.
1995) (plea colloquy transcript and agreement); United States v.
Harris, 964 F.2d 1234, 1236-37 (1st Cir. 1992) (presentence
report subsequent to guilty plea).
8
Under Board rules, hearsay is not automatically banned in
deportation proceedings, so the report was admissible as an
administrative matter whether or not it fit within a recognized
hearsay exception. See 8 C.F.R. § 240.7(a).
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238 F.3d 50, 55 (1st Cir. 2001), nothing in the report made it
peculiarly suspect and nothing prevented Emile, who had ample
knowledge of the matter, from contesting the description of the
offense. Thus, we see no fundamental unfairness in considering
the report.
Discretionary Relief. Lastly, Emile argues that the
Board erred in refusing to consider his application for
discretionary relief from deportation. Because Emile was
convicted of an aggravated felony, we have no authority to
consider on direct review any other claim once we conclude that
he was legitimately so classified. See INA § 242(a)(2)(C)
(codified at 8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996)); Sousa v.
INS, 226 F.3d 28, 34 & n.6 (1st Cir. 2000). A district court
may consider on habeas legal claims for which an alien has no
means of securing direct review, see id.; Mahadeo v. Reno, 226
F.3d 3, 9 (1st Cir. 2000), and our dismissal on this issue is
without prejudice to such claims.
The petition for review is denied as to the Board's
determination that Emile is removable as an aggravated felon;
and it is dismissed without prejudice to a habeas application
insofar as it contests the Board's refusal to consider
discretionary relief.
It is so ordered.
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