Daniel Thomann, Esquire
Board of Immigration Appeals holds that possession of ammunition by a convicted felon is an aggravated felony. Matter of Rocco Oppedisano, 26 I&N Dec. 202 (BIA October 25, 2013). Board Members: Pauley, Gundelsberger and Malphrus.
Respondent, a lawful permanent resident of forty years, was convicted in 2005 of possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) and sentenced to five years of probation and a $15,000 fine. He was charged with removability under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony, specifically “an offense described in ... section 922(g)(1) … of title 18, United States Code (relating to firearms offenses)” under § 101(a)(43)(E)(ii).
On appeal, Respondent argued that the parenthetical “relating to firearms offenses” was a limiting clause, such that a violation of 18 U.S.C. § 922(g) relating to ammunition should not be deemed an aggravated felony. Respondent argued that the immigration judge should have applied the rule of lenity and construed any ambiguity in his favor.
Held: Parentheticals in statutory language may be descriptive or limiting. Citing its analysis in Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999) of “relating to alien smuggling” language found in INA § 101(a)(43)(N), the Board reasoned that “relating to” parentheticals are descriptive, so that an offense “relating to” ammunition was not excluded from aggravated felony treatment under § 101(a)(43)(E)(ii). As there was no ambiguity in the statutory language, the rule of lenity did not apply.