          United States Court of Appeals
                        For the First Circuit

No. 12-1269

                    JOSE DEMETRIO SOTO-HERNANDEZ,

                             Petitioner,

                                  v.

               ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                             Respondent.


               PETITION FOR REVIEW OF AN ORDER OF THE

                     BOARD OF IMMIGRATION APPEALS


                                Before

                     Howard, Selya and Thompson,
                           Circuit Judges.


     Robert   D. Watt, Jr. for petitioner.
     James    E. Grimes, Senior Litigation Counsel, Office of
Immigration   Litigation, Civil Division, Department of Justice, with
whom Stuart   F. Delery, Acting Assistant Attorney General, and Linda
S. Wernery,   Assistant Director, were on brief, for respondent.



                           August 30, 2013
           HOWARD, Circuit Judge.      The petitioner seeks review of a

decision by the Board of Immigration Appeals (BIA) holding that a

prior conviction for the unlawful transfer of firearms rendered him

statutorily ineligible for cancellation of removal. The petitioner

argues that the BIA committed legal error in determining that his

one-time sale of a single firearm constituted "trafficking in

firearms" under 8 U.S.C. § 1101(a)(43)(C).             Because the BIA's

determination   involved       a   permissible   construction     of     the

Immigration and Naturalization Act (INA), we deny the petition for

review.

                       I.     Facts and Background

           Jose Demetrio Soto-Hernandez (Soto) is a native and

citizen of the Dominican Republic.        He entered the United States

lawfully as a permanent resident in 1996.        In June of 2003, Soto

was convicted of the assault and battery of a former girlfriend in

violation of Rhode Island General Laws § 11-5-3 and § 12-29-5. Two

years later, in June of 2005, the Department of Homeland Security

(DHS)   initiated   removal    proceedings   against   Soto   pursuant    to

8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of

domestic violence.     At his removal hearings, Soto conceded his

removability, but filed an application for cancellation of removal

under 8 U.S.C. § 1229b.

           Pursuant to 8 U.S.C. § 1229b, an alien who is deportable

from the United States may be considered for cancellation of


                                    -2-
removal    provided    that   he   meets      three   criteria.        First,   the

applicant must have been admitted as a lawful permanent resident

for at least five years; second, the applicant must have resided in

the United States continuously for at least seven years; third, the

applicant must never have been convicted of an aggravated felony.

8 U.S.C. § 1229b(a).      As defined in 8 U.S.C. § 1101(a)(43)(C), an

aggravated felony includes "illicit trafficking in firearms." Id.

In June of 2005, around the same time that DHS instituted the

removal proceedings, Soto was convicted of unlawfully delivering a

.45 caliber semi-automatic pistol to a purchaser "without complying

with" the Rhode Island General Laws.                    Specifically, Soto had

violated the state prohibition on the delivery of a pistol or

revolver    less   than   seven     days      following    an   application     for

purchase, see R.I.G.L. § 11-47-35, as well as the requirement that

pistols be delivered unloaded, securely wrapped, and with the bill

of sale enclosed, see R.I.G.L. § 11-47-26. He was sentenced to two

concurrent, suspended sentences of three years' imprisonment.                   The

Immigration Judge (IJ) found that Soto's conviction satisfied the

definition of an aggravated felony under 8 U.S.C. § 1101(a)(43)(C)

and pretermitted Soto's application for cancellation of removal.

            Soto appealed the IJ's determination to the BIA, arguing

that his conduct could not constitute "illicit trafficking" because

it did not "rise to the level of his being in the business or a

merchant    in   the   trading     or   dealing    of     firearms."     The    BIA


                                        -3-
acknowledged    that   8    U.S.C.   §    1101(a)(43)(C)   does    not   define

"trafficking" with regard to firearms.             It noted, however, that

Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), an earlier case

that addressed the same term in a consecutive provision of the INA

dealing with controlled substances, 8 U.S.C. § 1101(a)(43)(B), had

construed    "traffic"      pursuant      to   Black's   Law    Dictionary   as

"commerce; trade; sale or exchange of merchandise, bills, money,

and the like" and trafficking as "trading or dealing in certain

goods."   Id. at 541.       The BIA had consequently concluded in Davis

that the "essen[ce]" of trafficking was its "business or merchant

nature, the trading or dealing in certain goods, although minimal

degree of involvement may be sufficient . . . ."                 Id. (emphasis

added).     On this basis, the BIA held that Soto's delivery of a

firearm to a purchaser fit under the definition of trafficking and

affirmed the IJ's determination that Soto's conviction constituted

an aggravated felony.

            Soto now petitions for review.

                               II.   Discussion

            We review the BIA's conclusions of law de novo.              Vasquez

v. Holder, 635 F.3d 563, 565 (1st Cir. 2011).                  Where the BIA's

legal conclusions concern statutes and regulations related to

immigration matters, however, we grant the BIA's interpretations

Chevron deference.         Mejia-Orellana v. Gonzales, 502 F.3d 13, 16

(1st Cir. 2007); see also Negusie v. Holder, 555 U.S. 511, 516


                                         -4-
(2009) ("Consistent with the rule in [Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)], the

BIA is entitled to deference in interpreting ambiguous provisions

of the INA."). When a statute "is silent or ambiguous with respect

to the specific issue" before the court, we consequently ask only

"whether the agency's answer is based on a permissible construction

of the statute."         I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999) (quoting Chevron, 467 U.S. at 843) (internal quotation marks

omitted).   We "must uphold the BIA's interpretation . . . so long

as it is reasonable and consistent with the statute."              Rumierz v.

Gonzales, 456 F.3d 31, 37 (1st Cir. 2006).

                        A.   "Trafficking" in Firearms

            Under   8    U.S.C.   §   1229b(a),   an   applicant   who   seeks

cancellation of removal must demonstrate that he has "not been

convicted of any aggravated felony."              Id.; see also 8 U.S.C.

§ 1229a(c)(4)(A)(i) (clarifying that an alien seeking protection

from removal "has the burden of proof to establish that the alien

. . . satisfies the applicable eligibility requirements").                 An

"aggravated felony" is defined in 8 U.S.C. § 1101(a)(43) as

including the "illicit trafficking in firearms or destructive

devices."    Id.    As the BIA observed, the statutory scheme leaves

the term "trafficking" undefined. See Kuhali v. Reno, 266 F.3d 93,

108 (2d Cir. 2001) (noting that "the INA does not define the term

"trafficking" in § 101(a)(43)(C)"); accord Joseph v. Att'y Gen. of


                                       -5-
U.S., 465 F.3d 123, 128 (3d Cir. 2006). Faced with this ambiguity,

the BIA in this case construed "trafficking in firearms" as any

activity involving the commercial exchange of a firearm, including

a single past transaction.

              The BIA's construction is a permissible interpretation of

8 U.S.C. § 1101(a)(43)(C).           Where Congress fails to specify the

meaning of a statutory term, "courts typically read statutory terms

to   convey    their    ordinary     meaning,      including   as   reflected   in

dictionary definitions."           United States v. Knott, 256 F.3d 20, 28

(1st Cir. 2001); see also S.E.C. v. Tambone, 597 F.3d 436, 443 (1st

Cir. 2010) (en banc) ("One reference point for determining the

ordinary      meaning    of    a     word     is    its    accepted      dictionary

definition.").     In construing "trafficking" as an activity defined

purely by its "business or merchant nature," the BIA relied on the

term's official definition in Black's Law Dictionary as "commerce;

trade; sale or exchange of merchandise, bills, money, and the

like."     Davis, 20 I. & N. Dec. at 541 (quoting Black's Law

Dictionary 1240 (5th ed. 1979)).               Although Soto urges that the

"plain language definition" of commerce requires some large-scale

business activity, we cannot hold that the BIA's interpretation of

commerce   as    focusing     primarily     on     some   element   of   financial

exchange is impermissible.            Indeed, the BIA's emphasis on the

"merchant nature" of Soto's conduct conforms with the definitions

of "trafficking" previously espoused by the Supreme Court and this


                                        -6-
court.    See, e.g., Lopez v. Gonzales, 549 U.S. 47, 53 (2006)

("[O]rdinarily   'trafficking'      means    some   sort    of     commercial

dealing."); Urena-Ramirez v. Ashcroft, 341 F.3d 51, 57 (1st Cir.

2003) ("Courts define 'illicit trafficking' as illegally 'trading,

selling or dealing' in specified goods." (quoting Kuhali, 266 F.3d

at 107)); Bruno v. United States, 289 F. 649, 655 (1st Cir. 1923)

("Traffic . . . means to pass goods or commodities from one person

to another for an equivalent in goods or money."                   (internal

quotation marks and citation omitted)).

           Furthermore,   the     BIA's   definition     conforms     to   the

agency's own precedent in interpreting the INA.            "The normal rule

of statutory construction assumes that identical words used in

different parts of the same act are intended to have the same

meaning." Sorenson v. Sec'y of Treasury of U.S., 475 U.S. 851, 860

(1986) (internal quotation marks and citations omitted); see also

United States v. Jimenez, 507 F.3d 13, 19 (1st Cir. 2007) (finding

that use of an "identical" phrase in consecutive subsections

"strongly intimat[es] that it has the same meaning in both").              In

defining "trafficking in firearms" under § 1101(a)(43)(C), the BIA

relied on its established interpretation of the same term in a

neighboring provision of the INA discussing "trafficking in a

controlled substance."    See Davis, 20 I. & N. Dec. at 541; 8 U.S.C.

§   1101(a)(43)(B).   The   BIA    also     emphasized   its     longstanding

precedent that a single conviction for the sale of narcotics


                                    -7-
qualifies an alien as a drug "trafficker" under the statute.                  See

Matter of Roberts, 20 I. & N. Dec. 294, 301 (BIA 1991) (finding

that one conviction for sale of cocaine brought the respondent

within the definition of a drug trafficker); Matter of P-, 5 I. &

N. Dec. 190, 191-92 (BIA 1953) (finding that an applicant's "first

and only" attempt to sell drugs qualified him as a trafficker).

The   BIA's        consistent      interpretation      of     "trafficking"     in

§   1101(a)(43)(B)        as   a   term   that     encompasses   even   isolated

commercial dealings provides a strong foundation for the BIA's

adoption      of     a     similar     definition      of     "trafficking"    in

§ 1101(a)(43)(C).

           We do not dispute that "trafficking" may reasonably be

read to imply some element of large-scale commercial dealing. This

narrower reading, however, is not the only reasonable one.                   Under

Chevron review, we hold that the BIA's definition of "trafficking

in firearms" in 8 U.S.C. § 1101(a)(43)(C) as encompassing any

commercial exchange, in accordance with both dictionary definitions

and the BIA's own precedent in a neighboring provision of the INA,

is "reasonable and consistent with the statute." Rumierz, 456 F.3d

at 37.

                          B.   Trafficking in "Firearms"

           At      oral    argument,      Soto's    counsel   also   urged    that

§ 1101(a)(43)(C)'s explicit reference to "trafficking in firearms,"

in the plural, precludes the BIA from applying the term to a one-


                                          -8-
time delivery of a single firearm.     Because Soto failed to raise

this argument before either the IJ or the BIA, it is waived on

appeal. See Molina De Massenet v. Gonzales, 485 F.3d 661, 664 (1st

Cir. 2007) ("[A]rguments not raised before the BIA are waived due

to a failure to exhaust administrative remedies.").1

          Even were we to confront the issue on the merits, Soto's

argument is flawed on its face. "In determining the meaning of any

Act of Congress, unless the context indicates otherwise . . . words

importing the plural include the singular."    1 U.S.C. § 1.   While

this interpretive presumption may be rebutted where its application

renders a statute illogical or otherwise impracticable, see, e.g.,

United States v. Fior D'Italia, Inc., 536 U.S. 238, 263-64 (2002),

the reference to "trafficking" in § 1101(a)(43)(C) does not present

such a case.   Cf. United States v. Foote, 413 F.3d 1240, 1246 (10th

Cir. 2005) (applying 1 U.S.C. § 1 to hold that "trafficking in a

single counterfeit good constitutes trafficking in 'goods'" under

the Counterfeit Trademark Act). Congress's reference to "firearms"


     1
       Soto's briefs to the IJ and to the BIA argue only, and far
more vaguely, that "the conduct of the Respondent does not rise to
the level of his being in the business or a merchant in the trading
or dealing of firearms." At Soto's immigration hearing, Soto's
counsel did not raise the number of weapons sold, arguing instead
that "trafficking at least as it relates to the weapon would have
to constitute something more than a single sale" (emphasis added).
To the extent that these statements may have implicitly sought to
incorporate Soto's second argument, they were "insufficient to put
the agency on notice of [Soto's] claim." See Molina De Massenet,
485 F.3d at 664 n.2. Indeed, the BIA explicitly identified Soto's
only argument on appeal as the claim that his conviction "was not
an aggravating felony because he did not 'traffic' firearms."

                                 -9-
in the plural in § 1101(a)(43)(C) does not, in itself, render the

BIA's construction of the provision as encompassing the sale of a

single firearm impermissible.

                         C.   Rule of Lenity

            Finally, Soto argues that the rule of lenity requires

this court to interpret immigration statutes in the light most

favorable     to   the   alien   facing    deportation.      Because

§ 1101(a)(43)(C) leaves the term "illicit trafficking" undefined,

Soto claims that the term is ambiguous and should be read to

exclude his one-time sale.

            As the government notes, we have consistently limited the

application of the rule of lenity to criminal statutes. See, e.g.,

Lawson v. FMR LLC, 670 F.3d 61, 70 n.12 (1st Cir. 2012) (noting

that "the rule of lenity . . . is used only in criminal cases");

Lopes v. Keisler, 505 F.3d 58, 63 n.2 (1st Cir. 2007) (finding the

rule of lenity "irrelevant" where the "statutes at issue are

immigration statutes"). The Supreme Court's own record of applying

the principle to immigration statutes, however, is more ambiguous.

On occasion, the Court has agreed that the rule of lenity is

appropriate only where a court is interpreting a criminal statute.

See, e.g., Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2589

(2010) (applying the rule in an immigration case where "the

critical language appears in a criminal statute"); Leocal v.

Ashcroft, 543 U.S. 1, 12 (2004) (applying the rule "[a]lthough here


                                 -10-
we deal with § 16 in the deportation context" because "§ 16 is a

criminal statute").        Yet the Court has also repeatedly suggested

that    the    rule   of   lenity    may   apply    to    immigration       statutes

themselves, including 8 U.S.C. § 1101(a).                See, e.g., Kawashima v.

Holder, 132 S. Ct. 1166, 1175-76 (2012) (assuming that the rule of

lenity   could     apply    to   §   1101(a)(45)(M),       though      finding    the

provision sufficiently clear to preclude it); I.N.S. v. St. Cyr,

533 U.S. 289, 320 (2001) (noting "the longstanding principle of

construing any lingering ambiguities in deportation statutes in

favor of the alien"); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449

(1987) (same).

               Ultimately, this case does not require us to confront

whether (and if so, when) the rule of lenity applies in the

immigration context, because Soto's argument would have us stretch

the principle beyond any reasonable application.                  As the Supreme

Court    has    clarified,     "[b]ecause     the   meaning     of     language   is

inherently       contextual,     [courts    should       not]   deem    a   statute

'ambiguous' for purposes of lenity merely because it [i]s possible

to articulate a construction more narrow than that urged by the

Government."      Moskal v. United States, 498 U.S. 103, 108 (1990).

"The rule of lenity . . . is not applicable unless there is a

grievous ambiguity or uncertainty in the language and structure of

the Act, such that even after a court has seize[d] every thing from

which aid can be derived, it is still left with an ambiguous


                                       -11-
statute."    Chapman v. United States, 500 U.S. 453, 463 (1991)

(internal quotation marks and citations omitted).   The definition

of the term "trafficking" in § 1101(a)(43)(C) is a legal question

that may satisfactorily be resolved through ordinary principles of

statutory interpretation, including reference to dictionaries and

neighboring statutory provisions.      The BIA made use of these

precise principles in reaching its definition of trafficking as an

activity defined by its "business or merchant nature."   Especially

in light of the deference owed to the BIA's constructions of the

INA, the rule of lenity cannot apply to contravene the BIA's

reasonable interpretation in this case.

                         III.   Conclusion

            For the foregoing reasons, the petition for review is

denied.




                                -12-
