Ruiz-Romero v. Reno

Revised March 8, 2000

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

__________________________

No. 99-60129
__________________________

FILBERTO RUIZ-ROMERO,
Petitioner,
versus

JANET RENO,
U.S. Attorney General,
Respondent.
______________________________________________________

Petition for Review of an Order of the
Board of Immigration Appeals
______________________________________________________
March 3, 2000

Before JONES, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:

Ruiz-Romero appeals from a judgment of the Board of

Immigration Appeals (“BIA”) ordering that he be deported. We hold

that Ruiz-Romero has committed an “aggravated felony” as that term

is defined in Section 101(a)(43)(N) of the Immigration and

Nationality Act (“INA”);1 we are compelled, therefore, to dismiss

the appeal for want of jurisdiction.

I.

FACTS & PROCEEDINGS

Ruiz-Romero entered the United Stated without inspection in

1
8 U.S.C. § 1101(a)(43)(N). Unless otherwise indicated, all
citations to the current version of the INA.
1984. In 1987, he was granted temporary resident status through

the legalization program, and in 1990 he adjusted his status to

that of lawful permanent resident. In November 1995, Ruiz-Romero

was arrested for transporting eight Mexican aliens from one point

in New Mexico to another in violation of INA § 274(a)(1)(A)(ii).

That section provides:

[Any person who——] knowing or in reckless disregard of
the fact that an alien has come to, entered, or remains
in the United States in violation of law, transports, or
moves or attempts to transport or move such alien within
the United States by means of transportation or
otherwise, in furtherance of such violation of law [shall
be punished as provided in subparagraph (B).]2

In December 1996, the Immigration and Naturalization Service

(“INS”) commenced deportation proceedings against Ruiz-Romero. The

INS charged that Ruiz-Romero had been convicted of an aggravated

felony and was therefore deportable pursuant to INA

§ 237(a)(2)(A)(iii),3 which provides that “[a]ny alien who is

convicted of an aggravated felony at any time after admission is

deportable.” Ruiz-Romero moved to terminate the deportation

proceedings on the ground that he had not committed an “aggravated

felony” as that phrase is defined by INA § 101(a)(43).

The immigration judge (“IJ”) denied the motion and ordered

2
8 U.S.C. § 1324(a)(1)(A)(ii).
3
At the time deportation proceedings were commenced against
Ruiz-Romero, this provision was codified at INA
§ 241(a)(2)(A)(iii). It was subsequently recodified by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, as INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

2
that Ruiz-Romero be deported. Ruiz-Romero appealed and the BIA

upheld the IJ’s order.4 Ruiz-Romero timely appealed the BIA’s

decision.

II.

DISCUSSION

A. Standard of Review

Generally, in immigration cases we review only the decision of

the BIA, not that of the IJ.5 “BIA conclusions of law are reviewed

de novo (although with the usual deference to the Board’s

interpretation of ambiguous provisions on the Act in accordance

with Chevron U.S.A. Inc. v. Natural Resources Defense Council, 476

U.S. 837 (1984)).”6

B. Jurisdiction

The pivotal question in this appeal is whether the

parenthetical phrase “(relating to alien smuggling)” found in the

definition of “aggravated felony” in INA § 101(a)(43)(N),7

describes or restricts the statutory references that directly

precede it. That section provides in full:

[The term “aggravated felony” means——] an offense
described in paragraph (1)(A) or (2) of [INA] section

4
See Matter of Ruiz-Romero, 22 I. & N. __, 19 Immigr. Rep. B1-
351 (Interim Decision No. 3376, BIA 1999).
5
See Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.
1996).
6
Id.
7
8 U.S.C. § 1101(a)(43)(N).

3
 274(a) [8 U.S.C. § 1324(a)] (relating to alien
smuggling), except in the case of a first offense for
which the alien has affirmatively shown that the alien
committed the offense for the purpose of assisting,
abetting, or aiding only the alien’s spouse, child, or
parent (and no other individual) to violate a provision
of this act[.]

Ruiz-Romero argues that the parenthetical phrase is

restrictive. He urges that only those offenses that are both cross

referenced by INA § 101(a)(43)(N) and that “relat[e] to alien

smuggling” fit the definition of aggravated felony. Ruiz-Romero

concedes that he has been convicted of a crime that is cross

referenced by INA § 101(a)(43)(N); he argues, however, that because

he transported aliens from one point to another within the United

States without crossing a national border, he did not “smuggle”

aliens.8 Ruiz-Romero concludes that because the government has not

proved that he was convicted of a crime relating to alien

smuggling, he is not an aggravated felon and is therefore not

deportable.

The government, on the other hand, contends that the

parenthetical is a short-hand description of the cross referenced

provisions, not a substantive restriction. The BIA agreed, holding

that

the parenthetical is merely descriptive. A reading of
[INA §] 101 (a)(43) in its entirety supports this
conclusion. Section 101(a)(43) references a number of
statutes that are outside of the [INA]. These include

8
The term “smuggle” is generally understood to require the
crossing of a national border. See United States v. Monjaras-
Castaneda, 190 F.3d 326, 328 (5th Cir. 1999).

4
 provisions contained in titles 18, 26, and 50 of the
[U.S.C.]. Instead of requiring the reader to examine the
referenced titled and section of the code, [the many]
subparagraphs . . . of [INA §] 101(a)(43) include
parentheticals which provide a shorthand description of
the referenced criminal offenses.9

In United States v. Monjaras-Casteneda,10 we faced precisely

the same question in the sentencing-guidelines context11 and reached

the same conclusion as did the BIA in this case. We held that

“‘(relating to alien smuggling)’ acts only to describe, not to

limit the ‘offenses described in paragraph (1)(A) or (2) of section

1324(a).’”12 Ruiz-Romero argues that because this is an immigration

case and Monjaras-Casteneda was a sentencing guidelines case, it is

merely persuasive authority and should be disregarded. We

disagree.

9
Matter of Ruiz Romero, 22 I. & N. __, 19 Immigr. Rep. B1-351
(Interim Decision No. 3376, BIA 1999).
10
190 F.3d 326, 331 (5th Cir. 1999).
11
Monjaras-Casteneda was convicted of illegal reentry into the
United States in violation of 8 U.S.C. § 1326(a) & (b)(2). See id.
at 327. He had previously been arrested for transporting aliens in
violation of INA § 241(a)(2)(A)(iii) (now INA § 237(a)(2)(A)(iii),
see supra n.3) and deported. (Ruiz-Romero was convicted under the
same sub-section.) The Sentencing Guidelines section applicable to
Monjarads-Casteneda’s illegal reentry conviction provides for a
sentencing enhancement for those who have previously been convicted
of an aggravated felony. Application Note One to that section of
the sentencing guidelines provides that “[a]ggravated felony is
defined at 8 U.S.C. § 1101(a)(43).” See U.S.S.G. § 2L1.2, comment,
n.1. In Monjaras-Casteneda, therefore, we applied the same
definition of “aggravated felony” to the same underlying
substantive offense (i.e., transporting aliens within the United
States in violation of INA § 237(a)(2)(A)(iii)).
12
190 F.3d at 331.

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 Ruiz-Romero correctly points out that in United States v.

Pornes-Garcia13 the Second Circuit gave a different meaning to

“aggravated felony” for sentencing-guidelines purposes than a prior

Second Circuit panel had for immigration purposes. The Pornes-

Garcia court recognized, however, that it was departing from the

usual rule that favors uniformity in statutory construction.14 That

court found, nevertheless, that there were overriding

considerations that supported construing the same language

differently.15 Unlike the Pornes-Garcia court, we perceive no

overriding considerations in this case and are not persuaded that

we should deviate from our prior holding.

We therefore hold, in accordance with Monjaras-Casteneda,16

that the first parenthetical phrase in INA § 101(a)(43)(N) is a

description of, not substantive restriction on, the statutory cross

references that precede it.17 It necessarily follows that the BIA

13
171 F.3d 142, 147 (2d Cir. 1999).
14
See, e.g., United States v. Fernandez, 887 F.2d 465 (4th Cir.
1989); 2B NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 53.01 (1992
rev. ed.) (“Harmony and consistency are positive values in a legal
system because they serve the interests of impartiality and
minimize arbitrariness. Construing statutes by reference to others
advances those values. In fact, courts have been said to be under
a duty to construe statutes harmoniously where that can reasonably
be done.” (footnotes omitted)).
15
See 171 F.3d at 147.
16
190 F.3d at 331.
17
All of Ruiz-Romero’s arguments regarding why the
parenthetical phrase is limitation on the statutory references that
precede it, and his alternative argument that the rule of lenity is

6
was correct when it concluded that Ruiz-Romero committed an

aggravated felony.

Deportation proceedings were commenced against Ruiz-Romero

before April 1, 1997 and concluded more than thirty days after

October 30, 1996; therefore, this case is governed by the IIRIRA

transitional rules.18 Under those rules, the Courts of Appeals have

no jurisdiction over final orders of removal issued against aliens

who have been convicted of an aggravated felony.19 As we therefore

lack subject matter jurisdiction, this appeal is

DISMISSED.

applicable, were considered and rejected in Monjaras-Castaneda. We
need not repeat that discussion here.
18
See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302-03
(5th Cir. 1999); IIRIRA §§ 309(a) & (c)(1).
19
See IIRIRA § 309(c)(4)(G).

7