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June 29, 2008

Split on Immigration and Nationality Act

In Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008), the panel majority held that the term "aggravated felony" in 8 USC 1101(a)(43)(M)(i) included other felonies, besides tax evasion, and so affirmed a deportation order. It furthers a circuit split and one marked by dissents, including a strong one here by Judge Dennis, who in part relied upon the proposition that statutes should be construed in favor of aliens. I had not heard of that canon, but Judge Dennis wrote in part:

The Supreme Court and this Circuit have consistently recognized “the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” INS v. Cardoza- Fonseca, 480 U.S. 421, 449 (1987); see also INS v. St. Cyr, 533 U.S. 289, 320 (2001) (same); INS v. Errico, 385 U.S. 214, 225 (1966) (“‘[S]ince the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.’”) (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)); Martinez v. Mukasey, --- F.3d ---, 2008WL642565, at *10 (5th Cir. Mar. 11, 2008) (quoting Cardoza-Fonseca and explaining that “[t]his canon of construction, comparable to the rule of lenity in criminal cases, is based on the drastic nature of removal”); Banda-Ortiz v. Gonzales, 445 F.3d 387, 396 (5th Cir. 2006) (Smith, J., dissenting) (“Though the majority finds this weight of authority insufficient, it might at least, out of comity, acknowledge the merit of the competing position by applying the ‘longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.’”).

June 29, 2008 | Permalink


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