Stealing mailbox keys proved the gateway to an aggravated felony conviction after Bandele Adeniye failed to show up for his court date, the Board of Immigration Appeals recently held. Matter of Adeniye, 26 I&N Dec. 726 (BIA March 17, 2016).
Back in 1995 Mr. Adeniye, an LPR until that status was rescinded, was convicted of stealing mailbox keys, a federal felony in violation of 18 U.S.C. § 1704. Though it was news to me, stealing mailbox keys is apparently punishable by up to ten years imprisonment. Id. Before stepping into prison, Adeniye absconded. In 2014 he was caught and convicted of failing to surrender for service of sentence in violation of 18 U.S.C. § 3146(b)(1)(A)(ii). The immigration judge concluded that this constituted an aggravated felony under INA § 101(a)(43)(Q), defined as “an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more.”
On appeal to the BIA, Adeniye argued that his conviction did not satisfy the definition at § 101(a)(43)(Q) because he was sentenced to two years imprisonment, well below the five years referenced by § 101(a)(43)(Q). He took the position that § 101(a)(43)(Q) contemplates the length of a prison sentence actually issued rather than the maximum amount of prison time that could be required. Matter of Adeniye, 26 I&N Dec. at 727-28. In support, he notes that § 101(a)(43)(Q)’s reference to the amount of time that an “underlying offense is punishable by” is different from the statutory text that appears in other aggravated felony categories that focuses on how much prison time “may be imposed.” Matter of Adeniye, 26 I&N Dec. at 727-28. He argued that the latter cares about the maximum sentence. Id. at 727. By extension, the former must mean the prison time actually meted out. Id.
Though it suggested some sympathy toward Adeniye’s argument, the BIA ultimately disagreed. When Congress uses different words in different parts of the same or related statutes, that “generally implies that different meanings are intended.” Matter of Adeniye, 26 I&N Dec. at 729. Sometimes, though, that standard interpretation doesn’t apply. This, the Board concluded, is one of those instances. “It is unclear why Congress chose to use the term “punishable by” in section 101(a)(43)(Q) of the Act, rather than the ‘may be imposed’ formulation it employed in sections 101(a)(43)(J) and (T),” the Board wrote. Matter of Adeniye, 26 I&N Dec. at 727-28. But the “plain meaning of the term ‘punishable’” simply doesn’t support Adeniye’s argument. Id. at 728 (internal quotations omitted).
As a result, it rejected Adeniye’s argument. INA § 101(a)(43)(Q) turns on whether or not someone could have received a prison term of five years or more for the underlying crime regardless of what sentence the migrant actually received. Id. at 730.
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