In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1799

Jose F. Guerrero-Perez,

Petitioner,

v.

Immigration and Naturalization
Service, and John Ashcroft,

Respondents.

On Petition for Rehearing

Submitted April 18, 2001--Decided July 2, 2001



  Before Flaum, Chief Judge, and Bauer and
Coffey, Circuit Judges.

  Flaum, Chief Judge. In Guerrero-Perez
v. INS, 242 F.3d 727 (7th Cir. 2001), we
determined that Jose F. Guerrero-Perez’s
misdemeanor conviction for sexual abuse
of a minor constituted an aggravated
felony under sec. 101(a)(43)(A) of the
Immigration and Nationality Act ("INA"),
8 U.S.C. sec. 1101(a) (43)(A). Shortly
after we issued our opinion, the Board of
Immigration Appeals ("BIA") in an en banc
decision, In re Robin Juraine Crammond,
2001 BIA LEXIS 3, 23 I & N. Dec. 9, found
that a misdemeanor conviction for sexual
abuse of a minor is not an aggravated
felony under 8 U.S.C. sec.
1101(a)(43)(A). Guerrero/1 now requests
that we reconsider our view on this
matter in light of the BIA’s disposition.


Discussion

  Our task is to determine whether we
should accept the BIA’s approach as
outlined in Crammond or affirm the
position that we articulated in Guerrero-
Perez. We begin by recognizing that a
majority of the Board Members (11 out of
the 20) concur that for a person to be
considered an aggravated felon under 8
U.S.C. sec. 1101(a)(43)(A), which
encompasses murder, rape, or sexual abuse
of a minor, an individual must commit a
felony offense. To determine whether
someone has committed a felony, the
majority said that one should look to the
federal definition of a felony. This was
about all that the majority was able to
agree upon, as there exists no consensus
among them regarding how to reach the
aforementioned outcome. Board
MemberGuendelsberger, writing for seven
other Board Members, found no clear
congressional intent in the plain
language of the aggravated felony
statute. Having determined the statute
was ambiguous, Board Member
Guendelsberger then proceeded to employ
traditional tools of statutory
construction to discern the meaning of
the statute. In the end, this exercise
proved futile. As a consequence, he
invoked the principle that when a statute
is ambiguous it should be construed in
favor of the alien. Board Member Filppu,
authoring her own separate concurrence,
took issue with Board Member
Guendelsberger’s invocation of what she
labeled the "rule of lenity." Crammond,
2001 BIA LEXIS 3, at *23. After
conducting her own analysis of the
statute utilizing the "ordinary approach
to questions of statutory construction,"
id. at *23, her answer to the dilemma
appears to be that Congress intended that
8 U.S.C. sec. 1101(a)(43)(A) include only
felony offenses. Board Member Rosenberg,
who was joined by Board Member Miller,
wrote separately to voice her view that
"there is a significant expression of
congressional intent favoring the
conclusion reached by the majority and
that a narrow construction of the statute
limiting the reach of the aggravated
felony provision is appropriate." Id. at
*34. The dissent, written by Board Member
Grant and joined by eight other Board
Members, seems to endorse the reasoning
and decision that we reached in Guerrero-
Perez. Board Member Grant also warned
that the majority opinion had placed the
Board in a difficult position because it
will in the future either have to
announce that all parts of 8 U.S.C. sec.
1101(a)(43)(A) must involve felony
offenses, which he asserts is "in
derogation of the meaning of the Act."
Id. at *74. If the Board does not choose
such a course, then some parts of the
statute will require a felony offense and
other parts will not, leading to a
violation of the principle of statutory
construction that it is improper to adopt
a construction of a text that attributes
different meanings to the same phrase
within the same sentence. Id. By the
narrowest of margins, a majority of the
Board Members decided to reject the
forceful position of the dissent in favor
of the rule that an individual must
commit a felony offense as so defined by
federal law in order for his or her
conduct to fall within the parameters of
8 U.S.C. sec. 1101(a) (43)(A).

  We cannot adopt the approach that a
splintered majority of the Board in
Crammond supports. None of the positions
articulated by the various Board Members
who make up the majority present
statutory interpretations that we have
not considered previously. Thus, we
respectfully conclude that this case does
not warrant vacating our decision in
Guerrero-Perez./2
Conclusion

  For the foregoing reasons, we DENY
Guerrero’s petition for rehearing.

FOOTNOTES

/1 The petitioner identified himself as Jose Guer-
rero at his immigration hearing. We therefore
will refer to him as Guerrero rather than Guer-
rero-Perez. The details of Guerrero’s case can be
found in Guerrero-Perez, 242 F.3d at 728-31.

/2 It is worth to note that we are not the sole
Circuit to disagree with the BIA’s position on
this matter. The Eleventh Circuit has interpreted
8 U.S.C. sec. 1101(a)(43)(A) in the criminal
context to encompass misdemeanor state convic-
tions. United States v. Marin-Navarette, 244 F.3d
1284 (11th Cir. 2001).
