ADENIYE

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Matter of Bandele Adekunle ADENIYE, Respondent
Decided as amended May 2, 20161
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An “offense relating to a failure to appear by a defendant for service of sentence” is an
aggravated felony under section 101(a)(43)(Q) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(Q) (2012), if the underlying offense was “punishable by”
imprisonment for a term of 5 years or more, regardless of the penalty actually ordered or
imposed.
FOR RESPONDENT: Julio E. Moreno, Esquire, Atlanta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Blake Doughty, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY and GREER, Board Members; GELLER, Temporary
Board Member.
PAULEY, Board Member:
In a decision dated September 1, 2015, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien
convicted of an aggravated felony under section 101(a)(43)(Q) of the Act,
8 U.S.C. § 1101(a)(43)(Q) (2012), and ordered him removed from the
United States. The respondent has appealed from that decision. The appeal
will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Nigeria who was admitted to
the United States as a nonimmigrant visitor on July 20, 1989. 	He adjusted
his status on July 26, 1993, but his lawful permanent resident status was
rescinded in 1996. 	On June 30, 1995, the respondent was convicted of
possessing stolen mailbox keys in violation of 18 U.S.C. § 1704 (1994),
1 On our own motion, we amend the March 17, 2016, order in this case to correct the
erroneous reference on page 728 regarding the jurisdiction in which this matter arises.
Additional case citations have also been included in the amended paragraph.

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which is a Federal felony punishable by a maximum term of imprisonment
of 10 years. As a result of that conviction, the respondent was sentenced to
a 24-month term of imprisonment, but he absconded before being taken
into Federal custody. 	The respondent was later apprehended, and on
December 17, 2014, he was convicted of escape in violation of 18 U.S.C.
§ 751(a) (2012) and of failing to surrender for service of sentence in
violation of 18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(ii) (2012).
The 	Immigration 	Judge 	determined 	that 	the 	respondent’s 	2014
conviction for failing to appear for service of sentence is for an aggravated
felony under section 101(a)(43)(Q) of the Act because it is “an offense
relating to a failure to appear by a defendant for service of sentence if the
underlying offense is punishable by imprisonment for a term of 5 years or
more.” 	Accordingly, the Immigration Judge found that the respondent is
removable and ineligible for all requested relief.
II. ANALYSIS
Although the respondent concedes that his offense of conviction is one
“relating to a failure to appear . . . for service of sentence,” he argues that it
is not an aggravated felony under section 101(a)(43)(Q) of the Act because
the “underlying offense”—possession of stolen mailbox keys—was not
“punishable by imprisonment for a term of 5 years or more.” 	Specifically,
although the respondent does not dispute that 18 U.S.C. § 1704 prescribes a
statutory maximum penalty of imprisonment for 10 years, he maintains that
the 	term 	of 	imprisonment 	by 	which 	his 	underlying 	offense 	was
“punishable” should be determined by looking to the 24-month sentence he
was actually ordered to serve, and not to the offense’s statutory maximum
penalty of 10 years.
In this regard, the respondent observes that the aggravated felony
definition at section 101(a)(43)(Q) of the Act is the only one that focuses
on the term of imprisonment by which an offense is “punishable,” noting
that two other subparagraphs of the definition refer to the sentence that
“may be imposed” for an offense, namely, section 101(a)(43)(J) (covering
certain racketeering and gambling offenses “for which a sentence of one
year imprisonment or more may be imposed”) and section 101(a)(43)(T)
(covering certain “failure to appear” offenses where the underlying offense
was one “for which a sentence of 2 years’ imprisonment or more may be
imposed”). 	According to the respondent, the disparate use of the terms
“may be imposed” and “punishable by” indicates that Congress must have
intended these terms to have different meanings.
It is unclear why Congress chose to use the term “punishable by” in
section 	101(a)(43)(Q) 	of 	the 	Act, 	rather 	than 	the 	“may be 	imposed”

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formulation it employed in sections 101(a)(43)(J) and (T). 	The legislative
history of the aggravated felony definition sheds no light on the question.2
Nevertheless, we are not persuaded to adopt the respondent’s construction
of the language in section 101(a)(43)(Q).
The fundamental problem with the respondent’s argument is that it runs
counter to the plain “meaning of the term ‘punishable,’ which refers to any
punishment capable of being imposed.” Schrader v. Holder, 704 F.3d 980,
986 (D.C. Cir. 2013) (emphasis added). 	In analogous contexts, the courts
have held that Congress’ use of the term “punishable by” denotes a focus
on the maximum penalty that may be imposed for the offense of conviction,
rather than on the penalty that was (or could have been) imposed upon any
particular 	defendant. 	See 	United 	States 	v. 	Denson, 	588 	F.2d 	1112,
1116−17, 1120−22 (5th Cir. 1979); see also, e.g., United States v. Gallaher,
624 F.3d 934, 940 (9th Cir. 2010); United States v. Guzman-Tlaseca, 546
F.3d 571, 579 (8th Cir. 2008); United States v. Murillo, 422 F.3d 1152,
1153−54 (9th Cir. 2005).
The respondent’s reading is also inconsistent with the Supreme Court’s
line of decisions culminating in Moncrieffe v. Holder, 133 S. Ct. 1678
(2013), which have held that the term “drug trafficking crime”—defined by
18 U.S.C. § 924(c)(2) (2012) to mean “any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.)”—refers to offenses “for
which 	the 	‘maximum 	term 	of 	imprisonment 	authorized’ 	[under 	the
Controlled Substances Act] is ‘more than one year.’” 	Id. at 1683 (quoting
18 U.S.C. § 3559(a)(5) (2012)); see also Carachuri-Rosendo v. Holder, 560
U.S. 563, 567 (2010). 	As the Moncrieffe Court further explained, “The
upshot is that a noncitizen’s conviction of an offense that the Controlled
Substances 	Act 	(CSA) 	makes 	punishable 	by 	more 	than 	one 	year’s
imprisonment will be counted as an ‘aggravated felony’ for immigration
2 The language now codified in section 101(a)(43)(Q) of the Act was initially enacted as
subparagraph (P) by section 222(a) of the Immigration and Nationality Technical
Corrections Act (“INTCA”) of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4320, 4322. It
was subsequently redesignated as subparagraph (Q), and the original 15-year term of
imprisonment required by the statute was amended to require the current 5-year term.
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No.
104-132, §§ 440(e)(5), (6), 110 Stat. 1214, 1277−78. However, it has always included
the “punishable by” language. 	Section 222(a) also added section 101(a)(43)(J) of the
Act, which has continuously used the words “may be imposed” rather than “punishable
by.” INTCA § 222(a), 108 Stat. at 4321. Section 101(a)(43)(T) of the Act, which was
added by section 440(e)(8) of the AEDPA, 110 Stat. at 1278, has always employed the
“may be imposed” formulation as well. Our research has revealed no evidence to suggest
that the proponents of these various provisions attributed any particular significance to
their discrepant use of “punishable by” and “may be imposed.”

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purposes,” thus signifying that the Court understands the term “punishable
by” to refer to the maximum possible sentence that may be imposed upon
conviction, not to the sentence actually ordered or imposed.3 Moncrieffe
v. Holder, 133 S. Ct. at 1683. 	We agree and see no reason to depart from
that commonsense understanding here.
We realize that Congress’ use of different terms within related statutes
generally implies that different meanings are intended. 	See, e.g., Sosa
v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004). 	Thus, while the
ordinary meaning of undefined statutory terms is strongly preferred, there
may be occasions when similar or related terms must be given different
meanings, 	even at 	the cost of 	interpreting 	one of 	those terms 	in an
uncommon way. 	For instance, in Johnson v. United States, 529 U.S. 694
(2000), a case involving the revocation of a criminal defendant’s supervised
release, the Supreme Court recognized Congress’ “unconventional usage”
of the statutory term “revoke,” explaining that the “uncommon sense” of a
term may be relied on “when the ordinary meaning fails to fit the text and
when the realization of clear congressional policy . . . is in tension with the
result that customary interpretive rules would deliver.” 	Id. at 704−09
& n.9. 	This principle does not aid the respondent here, however, because
there is no indication that the ordinary meaning of the term “punishable by”
does not make contextual sense or that using the ordinary meaning of the
term would in any way frustrate congressional intent.
Moreover, the respondent’s argument that different phrases must be
construed to have different meanings does not necessarily support his claim
that the meaning to be ascribed to the term “punishable by” in his case
should be the sentence actually imposed. 	Several subparagraphs of the
aggravated felony definition do focus on the sentence that was ordered in a
3 Carachuri-Rosendo is not to the contrary. The Court held there that an alien’s second
misdemeanor conviction for drug possession under State law did not correspond to
“recidivist possession”—a “felony punishable” by imprisonment for more than 1 year
under 	the 	Controlled 	Substances 	Act, 	21 	U.S.C. § 	844(a)—where 	no 	recidivist
enhancement was actually ordered in State court. 	Carachuri-Rosendo v. Holder, 560
U.S. at 576−82; see also United States v. Brooks, 751 F.3d 1204, 1209−13 (10th Cir.
2014) (applying the reasoning of Carachuri-Rosendo in holding that a State must have
sought an upward sentencing departure under its sentencing guidelines scheme in order to
find 	that 	a 	defendant 	was 	convicted 	in 	that 	State 	of 	an 	“offense 	punishable
by . . . imprisonment for a term exceeding one year” (quoting U.S. Sentencing
Guidelines Manual § 4B1.2 cmt. n.1 (U.S. Sentencing Comm’n 2007))). 	Unlike in
Carachuri-Rosendo, the respondent’s offense of conviction was punishable by a term of
imprisonment of more than 5 years based solely on its elements. Carachuri-Rosendo
v. Holder, 560 U.S. at 582 (stating that a defendant must “have been actually convicted of
a crime that is itself punishable as a felony under federal law”).

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particular respondent’s case. 	See sections 101(a)(43)(F), (G), (R), (S) of
the Act (defining as aggravated felonies certain offenses “for which the
term of imprisonment is at least one year”). According to the respondent’s
own theory, if Congress had intended section 101(a)(43)(Q) to focus on the
sentence 	actually 	imposed, 	it 	would 	most 	naturally 	have 	used 	the
formulation 	in 	those 	subparagraphs, 	but 	it 	chose 	not 	to. 	Under 	the
circumstances, we find that the respondent’s argument cuts both ways and
is therefore unpersuasive.
We find no sufficient reason to warrant our deviation from the ordinary
meaning 	of 	the 	term 	“punishable 	by” 	in 	the 	context 	of 	section
101(a)(43)(Q) of the Act. 	Since the maximum penalty for a violation of
18 U.S.C. § 1704 is imprisonment for 10 years, the respondent’s offense is
“punishable by imprisonment for a term of 5 years or more,” regardless of
the fact that the sentence actually imposed was for 24 months. 	We
therefore conclude that he was convicted of an aggravated felony under
section 101(a)(43)(Q).
III. CONCLUSION
Possession of stolen mailbox keys in violation of 18 U.S.C. § 1704 is an
offense “punishable by imprisonment for a term of 5 years or more” under
section 101(a)(43)(Q) of the Act. 	Thus, the respondent’s conviction under
18 U.S.C. § 3146 for failing to appear to serve his sentence for that offense
is for an aggravated felony that renders him removable under section
237(a)(2)(A)(iii) of the Act. 	No other issues are presented on appeal.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.