Wednesday, November 24, 2010

Seattle Immigration Lawyer | Bribery of a Public Official is Not an Aggravated Felony Under INA

As immigration attorneys and other immigration law watchers know, the definition of “aggravated felony” under the Immigration and Nationality Act (“INA”) is ever-changing. Last month was no exception. In a decision that represented a victory for the narrow definition crowd, the Board of Immigration Officials (“BIA”) recently ruled in favor of an Austrian lawful permanent resident who was convicted of bribery of a public official under federal law, for which he was sentenced to 36 months of imprisonment. Matter of Chrysanth George Gruenangerl, 25 I&N Dec. 351 (BIA 2010).

In September, an Immigration Judge (“IJ”) had found Mr. Gruenangerl removable as an alien convicted of an aggravated felony, specifically, because his offense related to “commercial bribery” under INA Sect. 101(a)(43)(R). Mr. Gruenangerl appealed, and the BIA ruled that bribery of a public official under 18 USC Sect. 201(b)(1)(A)(2006) is not an offense “relating to” commercial bribery and thus not an aggravated felony under the INA.

By way of background, according to the indictment, Mr. Gruenangerl had promised to pay a portion of a finder’s fee to a US Forest Service employee that he expected to receive for the sale of a new gondola at a ski resort, if the employee would tell the ski resort in a report that it needed to replace its gondola.

In its analysis of the crime charged, 18 USC Sect. 201(b)(1)(A), which prohibits “[b]ribery of public officials and witnesses,” the BIA found that “the essence of the offense is the corrupt intent to influence official action.” In contrast, it held that commercial bribery “focuses on influencing action in the private sector involving the breach of the duty of fidelity.”

The BIA actually disagreed with Mr. Gruenangerl’s argument that the Fifth Circuit (where his case arose) has taken a restrictive approach to the phrase “relating to” which would require that the offense he was charged with be described in the immigration statute as a crime of commercial bribery. In fact, the BIA pointed out that both it and the Fifth Circuit had consistently held the phrase has an expansive meaning, especially when used with a general term. Nonetheless, and no doubt to the government’s chagrin, the BIA did not find the phrase “relating to” so encompassing that it includes convictions under 18 USC Sect. 201 for bribery involving public officials in order to influence official action.

Citing Perrin v. United States, 444 US 37 (1979), the BIA pointed out that Congress’s decision to use only the narrow term “commercial bribery” in the immigration statute reflected its awareness that the generic definition of “bribery” included a broad range of conduct, including violations of State commercial bribery statutes.

Disagreeing with the IJ , the BIA held that Sect. 101(a)(43)(R) is a generic provision of the Act, which requires the categorical approach since it lacks specific circumstances on how the offender committed the crime on a specific occasion. Employing such an approach, the BIA found that Mr. Gruenangerl’s crime is not an aggravated felony because the criminal statute does not facially define an offense sufficiently related to commercial bribery.

The BIA also criticized the IJ for his use of the modified categorical approach, where he considered the facts of the case and determined that the alien’s purpose in committing the offense was to obtain financial gain and therefore was commercial in nature. The BIA held that given that the essence of the criminal statute here was the intent to influence official action, the alien’s particular purpose did not somehow transform the offense into one “relating to” commercial bribery of someone in the private sector.

Of course, Mr. Gruenangerl’s battle is not over. The BIA reversed the IJ’s finding of removability (based on aggravated felony) and remanded to determine whether he is removable as an alien convicted of a crime involving moral turpitude. (In dicta, the BIA said that the crime did involve moral turpitude, but the factual issue of whether he committed the offense within five years of the date he was admitted to the U.S. remained.)