     07-1183-ag
     Gertsenshteyn v. Mukasey


 1                               UNITED STATES COURT OF APPEALS
 2
 3                                   FOR THE SECOND CIRCUIT
 4
 5                              ____________________________________
 6
 7                                         August Term, 2007
 8
 9    (Argued: March 12, 2008                                       Decided: September 25, 2008)
10
11                                       Docket No. 07-1183-ag
12                              ____________________________________
13
14                              BORIS IZRAYLOVICH GERTSENSHTEYN,
15
16                                             Petitioner,
17
18                                                – v. –
19
20    UNITED STATES DEPARTMENT OF JUSTICE, MICHAEL B. MUKASEY,* ATTORNEY
21                                GENERAL,
22
23                                             Respondent.
24
25                              ____________________________________
26
27    Before: CALABRESI and B.D. PARKER, Circuit Judges, and UNDERHILL, District Judge.**
28
29                              ____________________________________
30
31           Petition for review of a published decision of the Board of Immigration Appeals (“BIA”)
32   affirming a decision by Immigration Judge (“IJ”) Alan Page and ordering the petitioner removed
33   for having been convicted of an aggravated felony. We hold that the BIA erred in rejecting the


             *
               Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B.
     Mukasey has been substituted for former Attorney General Alberto R. Gonzales as a respondent
     in this case.
             **
             The Honorable Stefan R. Underhill, United States District Judge for the District of
     Connecticut, sitting by designation.

                                                   -1-
 1   legal framework that our Circuit applies to evaluating whether an alien has been convicted of an
 2   aggravated felony for purposes of removability under the Immigration and Nationality Act
 3   (“INA”), § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). And as we are not confident that the
 4   BIA would reach the same decision upon a reconsideration cleansed of errors, the petition for
 5   review is GRANTED, the decision of the BIA is VACATED, and this case is REMANDED for
 6   further proceedings.                 _________________________
 7


 8                                 JESSE LLOYD, Neil A. Weinrib & Associates, New York, N.Y.,
 9                                 for Petitioner.
10
11                                 ANDREW M. MCNEELA, Assistant United States Attorney (Ross
12                                 E. Morrison, Of Counsel), for Michael J. Garcia, United States
13                                 Attorney for the Southern District of New York, New York, N.Y.,
14                                 for Respondent.
15                                 _____________________________________
16


17   CALABRESI, Circuit Judge:

18          A flurry of cases have reached this Court recently dealing with how our categorical and

19   modified categorical approaches apply to removal proceedings and what the IJ and BIA may look

20   to when determining whether an alien has been convicted of an “aggravated felony” for the

21   purposes of the Immigration and Nationality Act (“INA”), § 237(a)(2)(A)(iii), 8 U.S.C. §

22   1227(a)(2)(A)(iii). See, e.g., James v. Mukasey, 522 F.3d 250 (2d Cir. 2008); Wala v. Mukasey,

23   511 F.3d 102 (2d Cir. 2007); Dulal-Whiteway v. U.S. Dep’t of Homeland Security, 501 F.3d 116

24   (2d Cir. 2007). Because the petitioner in this case seeks review of a published, precedential

25   opinion by the BIA that abandons prior BIA precedent and seeks to allow immigration courts

26   greater leeway to examine the conduct underlying an alien’s prior conviction, we are required to

27   examine how this new approach fits with the law of our Circuit.

28                                           BACKGROUND


                                                     -2-
 1   I. The Removal Proceedings

 2           Petitioner Boris Izraylovich Gertsenshteyn (“Petitioner”) is a citizen of the Ukraine who

 3   entered the United States as a refugee and subsequently adjusted his status to that of a lawful

 4   permanent resident. On July 30, 2001, in connection with his employment with Sea Pearl Escort,

 5   a prostitution service, Petitioner was convicted of violating and conspiring to violate 18 U.S.C. §

 6   2422(a), a statute prohibiting the enticing of individuals to travel in interstate or foreign

 7   commerce to engage in prostitution.1 And on December 17, 2002, the Immigration and

 8   Naturalization Service (“INS”) placed Petitioner in removal proceedings, pursuant to 8 U.S.C. §

 9   1227(a)(2)(A)(iii). The INS charged him with having been convicted of the aggravated felony set

10   forth in 8 U.S.C. § 1101(a)(43)(K)(ii) (“an offense that . . . is described in section 2421, 2422 or

11   2423 of Title 18 . . . if committed for commercial advantage”), as well as that set forth in 8

12   U.S.C. § 1101(a)(43)(U) (“an attempt or conspiracy to commit an offense described in [§

13   1101(a)(43)]”).

14           Petitioner appeared before the Immigration Court in April 2003 and contested

15   removability, arguing that his crimes of conviction had not been “committed for commercial

16   advantage.” IJ Alan Page disagreed. On January 20, 2004, he determined that both of

17   Petitioner’s convictions were for aggravated felonies. “[I]t was clear from a reading of the overt

         1
           The counts to which he pleaded guilty alleged that “[o]n or about and between October
         1, 1997 and December 9, 1998,” he “knowingly and intentionally conspired to persuade,
         induce, entice and coerce individuals to travel in interstate and foreign commerce to
         engage in prostitution and sexual activities for which a person can be charged with a
         criminal offense, in violation of [18 U.S.C. §] 2422(a),” and that “[o]n or about and
         between July 26, 1998 and August 22, 1998,” he “did knowingly and intentionally
         persuade, induce, entice and coerce two women to travel in interstate and foreign
         commerce to engage in prostitution and sexual activities for which a person can be
         charged with a criminal offense.”


                                                       -3-
 1   acts [alleged in the Indictment],” the IJ explained, that Petitioner was involved in “the Sea Pearl

 2   Escort Service,” and “that [he] and his co-conspirators made arrangements so that women could

 3   be transported from outside of New York State, apparently from Russia, to the United States for

 4   the purpose of engaging in prostitution.” Specifically, Petitioner “made a number of phone calls

 5   in order to arrange for at least two women to come to the United States from abroad to work as

 6   prostitutes for the Sea Pearl Escort Service,” and “[p]rostitution by definition is basically

 7   performing sexual activity for hire.” These circumstances, the IJ concluded, demonstrated that

 8   Petitioner committed his crimes “for commercial advantage.” The IJ further found that

 9   Petitioner’s offenses were “particularly serious,” rendering him ineligible for withholding of

10   removal.

11

12   II. The BIA’s First Decision, the First Appeal to Our Court, and the Stipulated Remand

13          Petitioner appealed to the BIA, and, after some procedural problems that are not relevant

14   to the instant Petition, argued, inter alia, that the IJ erred in finding that he had been convicted of

15   an aggravated felony. In a decision dated July 5, 2005, the BIA denied the appeal. First, the BIA

16   rejected the argument that only an individual who has an ownership in a commercial business can

17   commit a crime for a “commercial advantage.” While, the BIA explained, the phrase

18   “commercial advantage” is not defined in the INA or the implementing regulations, Black’s Law

19   Dictionary described it as “any type of business or activity which is carried on for a profit.” On

20   this basis, the BIA held that “a ‘commercial advantage’ would be ‘any profit or other benefit

21   derived from any type of business or activity.’” Second, the BIA concluded that the evidence in

22   the record, along with the testimony by Petitioner during the removal hearing, clearly showed


                                                       -4-
 1   that Petitioner “created a profit for the prostitution business for which he worked,” even though

 2   he himself was just a salaried employee. His actions of “placing clients with prostitutes,

 3   collecting payment from the prostitutes, answering telephones, instructing prostitutes as to

 4   decorum to be observed with clients, and placing advertisements in the local press were done on

 5   behalf of the prostitution business”; his “criminal acts were designed to generate revenue and

 6   aimed at enhancing the profitability of the criminal enterprise for which he worked.” Last, the

 7   BIA agreed with the IJ’s finding that Petitioner’s conviction constituted a “particularly serious

 8   crime.”2

 9          In a separate concurrence, Board Member Filppu discussed an issue not raised by the

10   parties: whether the law required the agency to apply the “categorical”/“modified categorical”

11   framework – the framework that is typically applied when assessing an alien’s prior conviction

12   for purposes of removal – when determining whether Petitioner committed the crimes of

13   conviction for “commercial advantage” (as Petitioner would have had to have done for his crime

14   of conviction to fall within the boundaries of the aggravated felony charged). Board Member

15   Filppu answered this question in the negative. “‘[C]ommercial advantage’ is not an element of

16   [Petitioner’s] offense,” he reasoned, so it “must be subject to proof independent of the

17   ‘conviction record’ constraints.”

18          Petitioner filed a timely petition for review with this Court. But ultimately, upon

19   agreement of the parties, we entered a Stipulation and Order of Settlement and Dismissal.




        2
          The BIA also addressed an ineffective assistance of counsel argument that Petitioner has
        since abandoned.


                                                     -5-
 1   Pursuant to the terms of that Stipulation and Order, the Court remanded the matter to the BIA to

 2   address:

 3          (a) whether the “categorical approach” to determining whether a criminal offense

 4          satisfies a particular ground of removal applies to the inquiry as to whether a

 5          violation of 18 U.S.C. § 2422(a) meets the aggravated felony definition under

 6          INA § 101(a)(43)(K)(ii); and


 7          (b) whether information beyond the record of conviction may be relied upon in

 8          determining whether an alien’s violation of 18 U.S.C. § 2422(a) was for

 9          “commercial advantage.”


10   (internal citation omitted)]

11

12   III. The BIA’s Published, Precedential Decision

13          On March 14, 2007, the BIA issued a published decision. It held: (1) that the categorical

14   and modified categorical approaches do not apply to the agency’s determination of whether an

15   alien’s conviction was “committed for commercial advantage” under 8 U.S.C. §

16   1101(a)(43)(K)(ii), and that the agency could therefore rely on evidence extrinsic to the record of

17   conviction to make that determination; and (2) that the record evidence showed that Petitioner

18   committed his crimes of conviction for “commercial advantage.” In re Gertsenshteyn, 24 I. & N.

19   Dec. 111, 113-17 (B.I.A. 2007).

20

21   A.      The Application of the Categorical and Modified Categorical Approaches



                                                     -6-
 1          According to the BIA, determining whether an alien’s conviction is an aggravated felony

 2   under 8 U.S.C. § 1101(a)(43)(K)(ii) requires “two separate but related” inquiries. Id. at 112. The

 3   first is whether the alien was convicted of one of the offenses described in the listed federal

 4   statutes, 18 U.S.C. §§ 2421, 2422, and 2423; this inquiry “must be made by reference to the

 5   record of conviction alone.” Id. The second is whether the offense was “committed for

 6   commercial advantage,” and this inquiry may involve looking beyond the statutory elements of

 7   the crime to the conduct underlying the offense. Further, the fact in question “may be proved by

 8   any evidence, including evidence outside the record of conviction.” Id.

 9          To explain its holding – which was a clear departure from BIA precedent and Circuit law

10   – the BIA focused on Congress’s intent when expanding the “aggravated felony” definition at 8

11   U.S.C. § 1101(a)(43) to include the crime set forth at § 1101(a)(43)(K)(ii). As originally enacted

12   in April 1996, § 1101(a)(43)(K)(ii) defined as an aggravated felony the commission of “an

13   offense that . . . is described in” any one of three federal statutory provisions “for commercial

14   advantage.” At that time, however, none of the provisions listed had a “commercial advantage”

15   element. In re Gertsenshteyn, 24 I. & N. Dec. at 113-14. So, the BIA reasoned, if immigration

16   courts were only allowed to consider the elements that the criminal trier of fact was required to

17   find in order to convict the alien, they would not be able to deem any offense an “aggravated

18   felony” under § 1101(a)(43)(K)(ii).3 Id. at 114. Clearly, the BIA concluded, this is not what


        3
          The BIA conceded that in 2003, Congress added an offense to 18 U.S.C. § 2423(d) that
        requires that the crime be committed “for the purpose of commercial advantage or private
        financial gain.” But in the BIA’s view, that amendment is not relevant to determining
        congressional intent in 1996, when 8 U.S.C. § 1101(a)(43)(K)(ii) was enacted. The BIA
        further noted that six out of the seven offenses referenced in 18 U.S.C. §§ 2421, 2422,
        and 2423 still lack a “commercial advantage” element. 24 I. & N. Dec. at 114 n.4.


                                                      -7-
 1   Congress intended. Rather, according to the BIA, Congress must have meant to allow

 2   immigration courts to consider the circumstances underlying the alien’s conviction to determine

 3   whether commercial advantage was present.

 4           The BIA claimed that its interpretation was consistent with “the structure of the

 5   aggravated felony provision [8 U.S.C. § 1101(a)(43)] as a whole.” Id. As “Congress has

 6   expanded the scope of crimes deemed to qualify as aggravated felonies,” it “has frequently

 7   included requirements that extend beyond the elements of the offenses,” such as the length of the

 8   sentence given for the conviction. Id. And some of these requirements – like the “commercial

 9   advantage” requirement at issue here – cannot, in the normal course, be ascertained by consulting

10   conviction records.4 Id. at 115. Accordingly, “the parties must be able to offer evidence outside

11   the strict confines of the record of conviction” – “the presentence report, the [alien’s] own

12   admissions, and any other relevant evidence pertaining to aspects of the criminal conviction.” Id.

13   at 115-16. “Otherwise, [8 U.S.C. § 1101(a)(43)(K)(ii)] . . . would be rendered of little or no

14   effect . . . .” Id. at 116.

15           As for all the reasons that it had previously cited in support of not looking behind a record

16   of conviction,5 the BIA dismissed them out of hand. “Although some burden to the system may

         4
           The BIA acknowledged that “on occasion it may be possible to convincingly deduce
         commercial advantage from some conviction records, such as those describing extensive
         conspiracies and criminal business enterprises,” but found it “unlikely” that a criminal
         charging document would allege, or a plea colloquy explore, a “commercial advantage”
         purpose for an offense that did not include a “commercial advantage” element. Id. at 115,
         114 n.5.
         5
           The BIA had, in an April 1996 decision, stated that “the principle of not looking behind
         a record of conviction” was “the only workable approach in cases where deportability is
         premised on the existence of a conviction.” In re Pichardo-Sufren, 21 I. & N. Dec. 330,
         335 (B.I.A. 1996) (emphasis added). “If we were to allow evidence that is not part of the
         record of conviction as proof of whether an alien falls within the reach of section


                                                      -8-
 1   result from the inapplicability of the categorical approach in this instance, we believe such a

 2   burden to be minor.” Id. at 116. And “[i]n any case, we find that it is necessary in order to give

 3   effect” to Congress’s inclusion of the “if committed for commercial advantage” language in 8

 4   U.S.C. § 1101(a)(43)(K)(ii). Id.

 5

 6   B. The Record Evidence that Petitioner Committed the Crimes of Conviction for “Commercial

 7   Advantage”

 8          Next, the BIA addressed whether Petitioner committed the offenses for which he was

 9   convicted “for commercial advantage.” Echoing its earlier decision in this case, the BIA quickly

10   answered “yes”: “The evidence of record, including [Petitioner’s] testimony, reflects that he

11   knew that his employment activity was designed to create a profit for the prostitution business for

12   which he worked.” Id. “That activity included placing clients with prostitutes, collecting

13   payment from the prostitutes, answering telephones, instructing prostitutes as to the decorum to

14   be observed with clients, and placing advertisements in the local press.” Id.

15

16   IV. The Instant Petition for Review



        241(a)(2)(C) of the Act,” the BIA explained in that decision,
                   [W]e essentially would be inviting the parties to present any and all
                   evidence bearing on an alien’s conduct leading to the conviction,
                   including possibly the arresting officer’s testimony or even the
                   testimony of eyewitnesses who may have been at the scene of the
                   crime. Such an endeavor is inconsistent both with the streamlined
                   adjudication that a deportation hearing is intended to provide and with
                   the settled proposition that an Immigration Judge cannot adjudicate
                   guilt or innocence.
        Id.


                                                     -9-
 1           Petitioner filed with our Court a timely petition for review of the BIA’s decision. He

 2   argues (1) that the BIA improperly looked beyond the elements of 18 U.S.C. § 2422(a) (i.e., it

 3   improperly went beyond the categorical approach), (2) that even if the BIA was allowed to

 4   “modify” the categorical approach, it was not allowed to do what it did and look beyond facts to

 5   which he actually and necessarily pleaded in order to establish the elements of the offense, and

 6   (3) that even if the BIA were allowed to review the underlying facts, it still erred because

 7   Petitioner’s actions do not demonstrate that his crimes were committed for “commercial

 8   advantage.”

 9           In response, the Government argues that the BIA correctly decided not to apply the

10   categorical or the modified categorical approach to the “committed for commercial advantage”

11   component of 8 U.S.C. § 1101(a)(43)(K)(ii). The Government emphasizes that in that particular

12   provision of the INA, Congress used the word “committed” instead of the word “convicted,”

13   thereby signaling, in the Government’s view, its intent to allow a broader review of the

14   petitioner’s criminal record. The Government further argues that the BIA’s construction of the

15   term “commercial advantage” is entitled to deference under Chevron, U.S.A., Inc. v. Natural

16   Resources Defense Council, Inc., 467 U.S. 837 (1984), and that the BIA correctly applied its

17   interpretation of the term to the facts of this case.

18                                               DISCUSSION

19   I. Jurisdiction

20           As of the codification of the Illegal Immigration Reform and Immigrant Responsibility

21   Act of 1996, Pub. L. No. 104-208, Div. C., Title III-B, 110 Stat. 3009-546 (Sept. 30, 1996), we

22   lack jurisdiction to review any final order of removal against an alien who is deportable because


                                                       -10-
 1   he or she was convicted of an aggravated felony, save for constitutional claims and questions of

 2   law. 8 U.S.C. § 1252(a)(2)(C). “This jurisdictional bar arises if: (1) the petitioner is an alien;

 3   and (2) he is deportable under one of the offenses enumerated in 8 U.S.C. § 1101(a)(43).”

 4   Mugalli v. Ashcroft, 258 F.3d 52, 54-55 (2d Cir. 2001). We retain jurisdiction, however, to

 5   determine whether this jurisdictional bar applies – that is, whether a petitioner satisfies the

 6   jurisdictional facts such as convictions for an aggravated felony. Id. at 55. “The determination

 7   of our jurisdiction is exclusively for the court to decide.” Id. (internal quotation marks omitted).

 8

 9   II. Standard of Review

10          When the BIA has adopted the IJ’s reasoning and offered additional commentary, we

11   review the decision of the IJ as supplemented by the BIA. Wala, 511 F.3d at 105. Additionally,

12   when our jurisdiction depends on the definition of a phrase used in the INA, and “when the intent

13   of Congress is unclear and the agency’s interpretation is reasonable,” we accord the BIA’s

14   determination the deference mandated by the Supreme Court’s decision in Chevron. Mugalli,

15   258 F.3d at 55 (internal quotation marks omitted). But when, in the course of interpreting the

16   INA, the BIA has interpreted state or federal criminal laws, we review its decision de novo. Id.

17

18   III. Applicable Law: The INA’s Definition of “Aggravated Felony” and Our Categorical and

19   Modified Categorical Approaches

20          Under the INA, “[a]ny alien who is convicted of an aggravated felony at any time after

21   admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). In a separate, definitional section, the

22   INA defines “aggravated felony” to include a wide range of offenses, from the generic to the



                                                      -11-
 1   specific, and it uses various means to describe the offenses contemplated. These include

 2   reference to the length of the sentence imposed, see, e.g., id. § 1101(a)(43)(F) (“[A] crime of

 3   violence . . . for which the term of imprisonment [is] at least one year”), citation to federal

 4   statute, see, e.g., id. § 1101(a)(43)(H) (“[A]n offense described in section 875, 876, 877, or 1202

 5   of title 18 . . . .”), and mention of a particular circumstance or consequence of the offense, see,

 6   e.g., id. § 1101(a)(43)(M)(i) (“[A]n offense that involves fraud or deceit in which the loss to the

 7   victim or victims exceeds $10,000”).

 8             We have adopted a “categorical approach” to deciding whether a crime of conviction fits

 9   within the definition of “aggravated felony” in § 1101(a)(43), thereby rendering an alien

10   removable under § 1227(a)(2)(A)(iii). Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir. 2006) (per

11   curiam). Under this approach, which is sometimes called the Taylor-Shepard approach, after

12   Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005),

13   “the singular circumstances of an individual petitioner’s crimes should not be considered, and

14   only the minimum criminal conduct necessary to sustain a conviction under a given statute is

15   relevant[.]” Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001) (alteration in original) (internal

16   quotation marks and citation omitted). In other words, “[w]e ‘look to the elements and the nature

17   of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.’”

18   Dulal-Whiteway, 501 F.3d at 121 (quoting Canada v. Gonzales, 448 F.3d 560, 565 (2d Cir.

19   2006)).

20             We have, however, modified this approach in one respect: When “a criminal statute

21   encompasses diverse classes of criminal acts – some of which would categorically be grounds for

22   removal and others of which would not – we have held that [the] statute[] can be considered


                                                      -12-
 1   ‘divisible’”; the agency may then “refer[] to the record of conviction for the limited purpose of

 2   determining whether the alien’s conviction was under the branch of the statute that permits

 3   removal.” Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir. 2003). While we have yet to

 4   determine how to utilize this approach in all situations, see, e.g., Dulal-Whiteway, 501 F.3d at

 5   124-29 (noting that “we have not explicitly queried” how to approach statutes “where only one

 6   type of generic conduct . . . is proscribed, but an alien can commit the conduct both in ways that

 7   would render him removable . . . and in ways that would not”), its application to cases involving

 8   removal under 8 U.S.C. § 1227(a)(2)(A)(iii) remains the law of our Circuit.

 9

10   IV. Whether the BIA Used the Proper Framework for Deciding Whether Petitioner Was

11   Convicted of an “Aggravated Felony”

12          Petitioner’s primary argument is that in determining whether he was convicted of the

13   aggravated felony set forth in 8 U.S.C. § 1101(a)(43)(K)(ii), the BIA utilized a legally erroneous

14   framework.6 In effect, the BIA separated the question of whether Petitioner had a qualifying

15   conviction under 18 U.S.C. §§ 2421, 2422, or 2423 from the question of whether Petitioner

16   “committed” the offense for “commercial advantage” (i.e., whether the circumstances of


        6
          Petitioner focuses on the BIA’s finding regarding 8 U.S.C. § 1101(a)(43)(K)(ii), even
        though he was also found to have been convicted of the aggravated felony set forth in 8
        U.S.C. § 1101(a)(43)(U), because whether his conspiracy conviction under 18 U.S.C. §
        371 constitutes an aggravated felony depends on whether he conspired to commit an
        offense that qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(K)(ii). See
        Kamagate v. Ashcroft, 385 F.3d 144, 152-53 (2d Cir. 2004) (explaining that “if the
        substantive crime that is the objective of a charged conspiracy fits within the aggravated
        felony definition of subsection [8 U.S.C. § 1101(a)(43)](R)” (“an offense relating to . . .
        counterfeiting”), the alien’s conviction for conspiracy to commit the substantive crime “is
        also an aggravated felony by virtue of subsection (U)”).


                                                    -13-
 1   Petitioner’s crime matched the description in § 1101(a)(43)(K)(ii)). It applied the categorical

 2   approach to the former. But as to the latter, it rejected both the categorical and the modified

 3   categorical approaches – and the corresponding restrictions these approaches place on what

 4   evidence the BIA may consider. Instead, it adopted an approach that allowed it to consider

 5   whatever it deemed relevant, including facts that Petitioner never admitted and to which he never

 6   pleaded guilty. Accordingly, Petitioner contends, the BIA’s decision must be vacated and the

 7   case remanded.

 8          The Government urges us to uphold the BIA’s new approach. Besides repeating the

 9   BIA’s argument that application of the categorical or modified categorical approach would

10   render § 1101(a)(43)(K)(ii) a “nullity,” the Government urges us to limit our categorical and

11   modified categorical approaches to the factual circumstances of Taylor and Shepard. Those

12   cases, which were about how to determine whether a defendant’s conviction meets the definition

13   of burglary in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), involved a

14   criminal statute that references convictions as opposed to offenses committed, the Government

15   observes, and the legislative history of the ACCA indicated to the Supreme Court that Congress

16   did not contemplate an elaborate factfinding process by the sentencing court. The Taylor and

17   Shepard Courts were also concerned with the practical implications of requiring a district court

18   to take and weigh extraneous evidence, both in terms of fairness to the defendant and burden on

19   the court. Here, by contrast (or so the Government urges us to conclude), (1) the plain language

20   of the aggravated felony definition at 8 U.S.C. § 1101(a)(43)(K)(ii) directs inquiry into whether




                                                     -14-
 1   an offense was “committed” for “commercial advantage”7; (2) the legislative history of that

 2   definitional provision shows that Congress added the “committed” language after the Supreme

 3   Court decided Taylor, implying that Congress had no objection to factfinding in this context; and

 4   (3) the policy concerns raised in Taylor and Shepard are not at issue, because §

 5   1101(a)(43)(K)(ii) contemplates a narrow factual inquiry that is no more difficult than the sort of

 6   inquiry that immigration courts routinely conduct when determining whether an applicant for

 7   relief from removal merits a favorable exercise of discretion.

 8          As a preliminary matter, we address our standard of review. Petitioner claims that we

 9   owe no deference to the BIA’s decision regarding how the categorical and modified categorical

10   approaches apply to aggravated felony inquiries under the INA, as this matter falls outside the

11   BIA’s area of expertise. The Government argues the opposite, but claims that we need not

12   decide the issue because the BIA’s decision is correct irrespective of our standard of review. We

13   agree that we need not resolve the issue, but we disagree with the Government’s position. The

14   BIA’s decision cannot stand under either a deferential or a de novo standard of review.

15



        7
          In this way the Government distinguishes Dulal-Whiteway, in which we held that the
        BIA was confined to looking at the record of conviction when determining whether the
        alien’s fraud offense resulted in a loss to the victim in excess of $10,000. The
        Government points out that the aggravated felony at issue in Dulal-Whiteway, 8 U.S.C. §
        1101(a)(43)(M)(i), does not use the word “committed.” This argument is troublingly
        disingenuous. It is possible to distinguish Dulal-Whiteway on that ground, but as the
        Government is surely aware, the BIA has recently published a decision (relying heavily
        on its decision in this case) that rejects the holding of Dulal-Whiteway and concludes that
        immigration courts may look at whatever they please when determining whether loss to
        the victim exceeded $10,000 for purposes of § 1101(a)(43)(M)(i). See In re Babasikov,
        24 I. & N. Dec. 306, 317-21 (B.I.A. 2007).


                                                    -15-
 1          A. Our Use of the Categorical Approach Follows from Congress’s Use of the Word

 2   “Convicted” in 8 U.S.C. § 1227(a)(2)(A)(iii).

 3          Our holding today is grounded in history – specifically, the history of why we have

 4   applied the categorical approach to aggravated felony inquiries in the removal context. The

 5   primary reason was that 8 U.S.C. § 1227(a)(2)(A)(iii) – the provision of the INA that renders an

 6   alien removable for having been convicted of an aggravated felony (leaving to provision 8 U.S.C.

 7   § 1101(a)(43) the definition of “aggravated felony”) – uses the word “convicted.” That is, the

 8   INA premises removability not on what an alien has done, or may have done, or is likely to do in

 9   the future (tempting as it may be to consider those factors), but on what he or she has been

10   formally convicted of in a court of law. Thus “[f]or nearly a century,” the BIA recently observed,

11   “the Federal circuit courts of appeals have held that where a ground of deportability is premised

12   on the existence of a ‘conviction’ for a particular type of crime, the focus of the immigration

13   authorities must be on the crime of which the alien was convicted, to the exclusion of any other

14   criminal or morally reprehensible acts he may have committed.” In re Velazquez-Herrera, 24 I.

15   & N. Dec. 503, 513 (B.I.A. 2008).

16          One way to ensure proper focus on the conviction, we decided, was the method the

17   Supreme Court applied in Taylor and Shepard. See Ming Lam Sui v. INS, 250 F.3d 105, 116-17

18   (2d Cir. 2001) (stating that “the Taylor opinion provides valuable guidance” to a determination

19   of whether an alien’s offense constitutes an “aggravated felony” under the INA because, like the

20   statute at issue in Taylor, “§ 1227(a)(2)(A)(iii) renders deportable an alien who has been




                                                     -16-
 1   ‘convicted’ of an aggravated felony, not one who has ‘committed’ an aggravated felony”).8 We

 2   also reasoned (1) that “nothing in the legislative history [of 8 U.S.C. § 1227(a)(2)(A)(iii)]

 3   suggested a factfinding role for the BIA in ascertaining whether an alien had committed an

 4   aggravated felony, just as, in Taylor, nothing suggested such a role for the sentencing court in

 5   evaluating the factual basis of a prior burglary conviction,” and (2) that “the practical evidentiary

 6   difficulties and potential unfairness associated with looking behind [an alien’s] offense of

 7   conviction were no less daunting in the immigration [context] than in the sentencing context.”

 8   Dulal-Whiteway, 501 F.3d at 125-26 (internal quotation marks and citations omitted). In sum,

 9   our use of the categorical approach emanates from our understanding of what Congress intended

10   when it drafted § 1227(a)(2)(A)(iii), a provision that, like the provision in Taylor and Shepard,

11   requires the Government to prove the existence of a qualifying conviction in order to make its

12   case.

13           In the precedential opinion that the BIA issued in this case, it has taken a new approach.

14   But it has done so not by reinterpreting 8 U.S.C. § 1227(a)(2)(A)(iii), the provision whose

15   wording led it – and us – to adopt the categorical approach in the first place. Rather, it has

16   focused entirely on a subpart of § 1101(a)(43), the provision of the INA that defines “aggravated

17   felony.” The BIA has authority to interpret that provision, and its interpretation – specifically, its

18   sensible reading of the phrase “commercial advantage” – may well merit deference should the

        8
         Other courts took the same view, applying the same reasoning. See Gonzales v. Duenas-
        Alvarez, 127 S. Ct. 815, 818 (2007) (noting that in determining whether a conviction falls
        within the scope of an offense listed as an “aggravated felony” in the INA, “the lower
        courts uniformly have applied the approach this Court set forth in [Taylor].”); see also
        Ming Lam Sui, 250 F.3d at 117 n.11 (cataloguing cases prior to Ming Lam Sui in which
        our Circuit and others have approved the use of the Taylor-Shepard, or categorical,
        approach in the removal context).


                                                      -17-
 1   BIA reassert it in this case (on remand) or in others. But the BIA’s discussion of §

 2   1101(a)(43)(K)(ii) gives us no reason to depart from its, and our own, precedents regarding the

 3   more fundamental question of what is required of the agency – in the interests of both fairness

 4   and efficiency – when an alien’s removability hinges on the existence of a prior conviction,

 5   however that conviction is defined.

 6          Phrased another way, the fundamental problem with the decision on review is this: The

 7   government’s position is that if the crime of which a defendant is convicted was done “nastily” it

 8   is, Congress had told us, an aggravated felony. But if it was done “benignly” it is not. That may

 9   well be so. But that does not alter what must be (and what may not be) examined to establish

10   whether the crime of which the alien was convicted entailed nastiness or did not. To determine

11   that, under our and Supreme Court precedents, the immigration court must look to what was

12   required to convict the alien, i.e., the elements of the crime of conviction. If the elements include

13   nastiness, all well and good. If they do not, then looking at whether there was in fact nastiness

14   necessarily undercuts the whole basis of the categorical approach, which is that what the alien

15   was convicted of determines whether the felony is an aggravated one and not (unless it is needed

16   to convict) the particular manner in which the crime was committed.9

        9
          Our decision today is arguably in tension with Ali v. Mukasey, 521 F.3d 737, 743 (7th
        Cir. 2008), in which the Seventh Circuit “conclude[d] that when deciding how to classify
        convictions under criteria that go beyond the criminal charge – such as the amount of the
        victim’s loss, or whether the crime is one of ‘moral turpitude’, the agency has the
        discretion to consider evidence beyond the charging papers and judgment of conviction.”
        Ali, however, involved the BIA’s decision to classify a particular conviction as a crime of
        “moral turpitude” for purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I) (rendering ineligible for
        admission “any alien convicted of, or who admits having committed, or who admits
        committing acts which constitute the essential elements of a crime involving moral
        turpitude”), a decision that precluded the concededly-removable petitioner from seeking
        adjustment of status. Ali, 521 F.3d at 739. Ali’s holding, then, is limited to that provision


                                                     -18-
 1          B. The BIA’s Discussion of 8 U.S.C. § 1101(a)(43)(K)(ii) Provides No Logical Basis for

 2   Abandoning the Categorical Approach.

 3           The BIA’s main argument against retaining the traditional approach is essentially a

 4   “practical” one. The BIA begins by noting that only a person who has been convicted of one of

 5   the federal statutes enumerated in § 1101(a)(43)(K)(ii), namely 18 U.S.C. § 2421

 6   (“Transportation generally”), 2422 (“Coercion and enticement”), and 2423 (“Transportation of

 7   minors”), is rendered removable for having been convicted of the aggravated felony set forth in §

 8   1101(a)(43)(K)(ii). And for the most part, those statutes do not contain “committed for

 9   commercial advantage” language, meaning—always according to the BIA—that unless

10   immigration courts are allowed to look at the circumstances underlying an alien’s conviction, §

11   1101(a)(43)(K)(ii) is a “nullity.” We do not believe this is so, for that is not the only way to read

12   § 1101(a)(43)(K)(ii). Section 1101(a)(43)(K)(ii) defines as an “aggravated felony” “an offense

13   that . . . is described in section 2421, 2422 or 2423 of Title 18 of the United States Code . . . if

14   committed for commercial advantage” (emphasis added). Any number of state statutes

15   criminalize the offenses described in these federal statutes,10 and some of those state statutes

        of the INA.
                 In any case, Ali’s holding appears to follow from a premise that our Circuit has
        not embraced: that the BIA’s decision to treat a petitioner’s conviction as one involving
        moral turpitude (i.e., its interpretation of the petitioner’s statute of conviction and, if
        necessary, record of conviction) is entitled to the same deference as the BIA’s
        determination that the presence of a particular element or elements makes a crime one of
        “moral turpitude” (i.e., its interpretation of an ambiguous term in the INA). See Wala v.
        Mukasey, 511 F.3d 102, 105 (2d Cir. 2007) (observing that in our Circuit, we defer to the
        latter, in accordance with Chevron, but review the former de novo).
        10
           See, e.g., Cal. Penal Code § 266j (criminalizing the intentional transportation of a child
        under the age of sixteen for the purpose of any lewd or lascivious conduct); Tex. Penal
        Code § 20A.02 (prohibiting the knowing trafficking of a person with the intent or
        knowledge that the trafficked person will engage in prostitution); Vt. Stat. Tit. 13, §


                                                      -19-
1    include “if committed for commercial advantage” language as an element of the crime.11

2    Furthermore, the INA specifically says that the term “aggravated felony” applies to any offense

3    described in § 1101(a)(43), “whether in violation of Federal or State law.” 8 U.S.C. §

4    1101(a)(43) (emphasis added). And although the Government claims that it would not seek to

5    apply § 1101(a)(43)(K)(ii) to convictions under state laws that resemble the listed federal

6    statutes, the BIA has adopted precisely this reasoning in other cases.12

7            But, the BIA continues, at least as to the federal statutes listed, if confined to the

8    categorical and modified categorical approaches, it will rarely be able to prove that an alien who

9    was convicted of an offense described in § 1101(a)(43)(K)(ii) committed the crime for

10   commercial advantage. The BIA concedes that “on occasion it may be possible to convincingly


        2635(a)(1) (“A person shall not [i]nduce, entice or procure a person to come into the state
        or to go from the state for the purpose of prostitution or for any immoral purpose or to
        enter a house of prostitution in the state.”).
        11
          See, e.g., Nev. Rev. Stat. § 201.360(1)(b) (defining as a felony the receipt of “any
        compensation, gratuity or reward, or promise thereof, for or on account of placing in a
        house of prostitution or elsewhere a person for the purpose of causing that person to
        cohabit with someone who is not the person’s spouse”); Del. Code Tit. 11, § 787(b)(2)(a)
        (“A person is guilty of sexual servitude of a minor when the person knowingly: Recruits,
        entices, harbors, transports, provides or obtains by any means, a minor under 18 years of
        age, knowing that the minor will engage in commercial sexual activity, a sexually explicit
        performance, or the production of pornography.”); accord 720 Ill. Comp. Stat. 5/10A-
        10(b); Miss. Code. § 97-3-54.1(1)(c); see also 720 Ill. Comp. Stat. 5/10A-10(c)
        (describing as a felony the knowing “benefit[], financially or by receiving anything of
        value, from participation in a venture which has engaged in [involuntary servitude of a
        minor]”); accord Miss. Code. § 97-3-54.1(2).
        12
          See, e.g., In re Yusafi, 2008 WL 339652 (B.I.A. Jan. 5, 2008) (“We agree with the
        Immigration Judge that the respondent’s offense of conviction under section 43.26(a) of
        the Texas Penal Code is an ‘offense described in’ 18 U.S.C. § 2252(a)(4)(B), thereby
        qualifying it as an aggravated felony under section 101(a)(43)(I) of the Act.”). We
        express no opinion, of course, as to the validity of this reading of the INA; we merely
        note the inconsistency of the BIA’s position.


                                                      -20-
 1   deduce commercial advantage from some conviction records, such as those describing extensive

 2   conspiracies and criminal business enterprises,” but insists that the record of conviction (to which

 3   it would be confined under our modified categorical approach) is “unlikely” to provide

 4   immigration courts with the necessary information. In re Gertsenshteyn, 24 I. & N. Dec. at 115

 5   & 114 n.5. We are inclined to doubt whether this is in fact as difficult as the government asserts.

 6   But we cannot, in any event, accept this line of reasoning.

 7          We are aware that as Congress has expanded upon and particularized the INA’s definition

 8   of “aggravated felony,” immigration courts have been faced with a dissonance between (1) the

 9   aggravated behavior which the Department of Homeland Security, following Congress, says

10   would make aliens’ prior convictions aggravated felonies and (2) the elements of the criminal

11   statutes under which the aliens in question were actually convicted. But the burden of this

12   dissonance falls on the Government: When the Government has decided to seek the removal of a

13   lawfully admitted alien under 8 U.S.C. § 1227(a)(2)(A)(iii), the Government is obligated to prove

14   that the alien’s conviction falls within the statutory definition of “aggravated felony.” See 8

15   U.S.C. § 1229a(c)(3)(A); Ibragimov v. Gonzales, 476 F.3d 125, 131 (2d Cir. 2007). That the

16   Government finds that task difficult in some cases is no reason for immigration courts to

17   renounce the restrictions that the courts have said the law requires.

18

19   V. The BIA’s Error Requires Remand

20          All that said, it may well be that under our rules for applying the categorical and modified

21   categorical approaches, petitioner was, in fact, convicted of an aggravated felony, i.e., of

22   enticing, for commercial advantage, individuals to travel in interstate or foreign commerce to


                                                     -21-
 1   engage in prostitution. But we cannot determine that ourselves. The BIA did not decide the case

 2   on that basis, and as a result, and despite our desire to conserve judicial resources, remand cannot

 3   be avoided. “‘We may not enforce [an agency’s] order by applying a legal standard the [agency]

 4   did not adopt.’” Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 532 (2d Cir. 2006)

 5   (quoting NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 721 (2001)); see also Cao He Lin v.

 6   U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir. 2005) (“To assume a hypothetical basis for the

 7   IJ’s determination, even one based in the record, would usurp her role.”).

 8           This case must, therefore, be sent back to the BIA, where, according to the legal

 9   framework that remains the law of this Circuit, the BIA must consider, first, whether Petitioner’s

10   “statute [of conviction] is ‘divisible,’ such that some categories of proscribed conduct render an

11   alien removable and some do not.” Dulal-Whiteway, 501 F.3d at 126. If the BIA concludes that

12   the statute is not divisible, the proper course is to focus on “the intrinsic nature of the offense

13   rather than on the factual circumstances surrounding [Petitioner’s] violation.” Dalton, 257 F.3d

14   at 204. And unless “every set of facts violating [the] statute . . . satisf[ies] the criteria for

15   removability,” it may not deem Petitioner removable. Dickson, 346 F.3d at 48. If, instead, the

16   BIA determines that Petitioner’s statute of conviction is divisible, it may “consult the record of

17   conviction to ascertain the category of conduct of which the alien was convicted,” Dulal-

18   Whiteway, 501 F.3d at 126, so long as it confines its inquiry to “facts to which [the] defendant

19   actually and necessarily pleaded in order to establish the elements of the offense,” id. at 131. We

20   note that before the BIA, and in his brief to this Court, Petitioner has argued that 18 U.S.C. §

21   2422 may not be a divisible statute. We express no views as to the merits of Petitioner’s




                                                       -22-
 1   arguments. Our Circuit has recently spoken on divisibility,13 and it is to those precedents that the

 2   BIA will, we are confident, give its careful consideration.

 3

 4                                            CONCLUSION

 5           The BIA’s decision in this case departs, with insufficient reason, from the legal

 6   framework that we have long used to decide whether an alien charged with removability under 8

 7   U.S.C. § 1227(a)(2)(A)(iii) has been convicted of an aggravated felony. And we are not

 8   confident of what result it would reach under the proper framework. Accordingly, we VACATE

 9   the BIA’s decision and REMAND this case, so that the BIA may, in accordance with that

10   framework, determine whether petitioner was in fact convicted of an aggravated felony.




        13
           See, e.g., Dulal-Whiteway, 501 F.3d at 126-27 (observing that “we have explicitly
        found statutes divisible only where the removable and non-removable offenses they
        describe are listed in different subsections or comprise discrete elements of a disjunctive
        list of proscribed conduct”; “we have not explicitly queried whether this logic extends to
        a statute . . . where only one type of generic conduct . . . is proscribed, but an alien can
        commit the conduct both in ways that would render him removable . . . and in ways that
        would not . . . .”); James v. Mukasey, 522 F.3d 250, 255 (2d Cir. 2008) (noting the open
        question to which Dulal-Whiteway called attention).


                                                     -23-
