Robert Lemanski v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4311
___________
ROBERT LEMANSKI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A73-479-989)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 12, 2009
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: November 18, 2009)
_________
OPINION
_________
PER CURIAM
Robert Lemanski petitions for review of a decision rendered by the Board of
Immigration Appeals on September 29, 2008. For the reasons that follow, we will deny
the petition for review.

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That section provides: “Any person who knowing or in reckless disregard of the fact1
that an alien has come to, entered, or remains in the United States in violation of law,
transports, or moves or attempts to transport or move such alien within the United States
by means of transportation or otherwise, in furtherance of such violation of law . . . shall
be punished as provided in subparagraph (B).” Subparagraph (B) provides for a fine, a
term of imprisonment of not more than five years, or both. See 8 U.S.C. § 1324(a)(1)(B).
2
I. Background
Lemanski is a native and citizen of Poland. He became a lawful permanent
resident of the United States in November 1996. In June 2002, pursuant to a guilty plea,
Lemanski was convicted of one count of transporting illegal aliens in violation of 8
U.S.C. § 1324(a)(1)(A)(ii) and was sentenced to five years of probation. After he1
completed his sentence, in Spring 2008, the Department of Homeland Security (“DHS”)
took Lemanski into custody and began removal proceedings based upon the conclusion
that Lemanski had been convicted of an aggravated felony under INA § 101(a)(43)(N) [8
U.S.C. § 1101(a)(43)(N)].
In proceedings before the Immigration Judge (“IJ”), Lemanski argued that his
conviction does not qualify as an aggravated felony under the INA. In a detailed opinion
issued in June 2008, the IJ concluded that Lemanski presented a persuasive legal
argument that the IJ might have been inclined to accept. However, in light of clear
precedent by this Court and the BIA, as well as the “great weight of authority” running
counter to Lemanski’s position, the IJ held that he was “constrained to find that
respondent’s federal conviction for transporting aliens . . . constitutes an aggravated

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Lemanski has been removed to Poland. His wife and three children remain in the2
United States.
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felony as defined in INA § 101(a)(43)(N).” Accordingly, the IJ ordered Lemanski’s
removal.
Lemanski appealed. On September 29, 2008, the BIA affirmed the IJ’s decision
and dismissed the appeal. This timely petition for review followed.2
II. Analysis
Lemanski was convicted of transporting illegal aliens, which the BIA concluded
qualifies as an aggravated felony covered by § 237(a)(2)(A)(iii). See INA
§ 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N)]. Pursuant to INA § 242(a)(2)(C) [8 U.S.C.
§ 1252(a)(2)(C)], “no court shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed a criminal offense
covered in . . . section 237(a)(2)(A)(iii). . . .” However, judicial review is not precluded if
the petition for review raises “constitutional claims or questions of law.” INA
§ 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)].
Lemanski claims that his conviction is not an aggravated felony for purposes of the
INA. Whether a particular offense qualifies as an aggravated felony is a legal question
over which this Court has jurisdiction. See Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d
Cir. 2007). We exercise plenary review over this issue of statutory construction. See
Biskupski v. Att’y Gen., 503 F.3d 274, 279 (3d Cir. 2007).

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A.
INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N)] specifies that the term
“aggravated felony” includes: “an offense described in paragraph (1)(A) or (2) of section
274(a) [8 U.S.C. § 1324(a)(1)(A) or (2)] (relating to alien smuggling). . . .” Lemanski
focuses on the statute’s parenthetical phrase “relating to alien smuggling.” He argues that
the phrase is meant to limit the reach of the definition only to those subsections of 8
U.S.C. § 1324(a)(1)(A) or (2) that, in his view, concern alien smuggling in the sense of
bringing aliens into this country illegally. He cites §§ 1324(a)(1)(A)(i) and (iv), which
prohibit bringing and attempting to bring aliens into the United States and inducing aliens
to enter the United States illegally. In contrast, the crime to which Lemanski pleaded
guilty, § 1324(a)(1)(A)(ii), prohibits transporting aliens within the United States.
Accordingly, Lemanski contends it is not a crime “relating to alien smuggling.”
The BIA rejected Lemanski’s restrictive reading of the statute. Relying upon
Biskupski v. Att’y Gen., 503 F.3d 274 (3d Cir. 2007), and Patel v. Ashcroft, 294 F.3d 465
(3d Cir. 2002), as controlling authority, the BIA concluded that “all violations of 8 U.S.C.
§ 1324(a)(1) and (2) are offenses ‘relating to alien smuggling’ and fall within the
definition of an aggravated felony contained in section 101(a)(43)(N) of the Act.” See
A.R. 2 (BIA Decision at 1).
We agree with the BIA’s conclusion, which correctly applied our precedent. In
Patel, we concluded that the INA’s parenthetical phrase “relating to alien smuggling” “is

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This interpretation is consistent with authority from other Courts of Appeals. See,3
e.g., United States v. Guzman-Mata, 579 F.3d 1065, 1069 (9th Cir. 2009) (a conviction
under § 1324(a)(1)(A)(ii) is an “alien smuggling offense” under the INA, and therefore
qualifies for treatment as such under the Sentencing Guidelines); United States v. Soliz-
Campozano, 312 F.3d 164, 166 (5th Cir. 2002) (a conviction under § 1324(a)(1)(A)(ii)
for transporting aliens is “related to” alien smuggling); Gavilan-Cuate v. Yetter, 276 F.3d
418, 419 (8th Cir. 2002) (a conviction under §§ 1324(a)(1)(A)(ii) and (iii) is an
aggravated felony under the INA).
We are unaware of any court that has concluded that the phrase “relating to alien4
smuggling” is restrictive and therefore excludes a conviction for transporting aliens under
8 U.S.C. § 1324(a)(1)(A)(ii). In his decision, the IJ noted that the Court of Appeals for
the Second Circuit might find Lemanski’s position persuasive, as reflected by Evangelista
v. Ashcroft, 359 F.3d 145, 151-52 (2d Cir. 2004). The Evangelista court concluded that a
conviction for “defeating a tax” was a crime “relating to tax evasion” for INA purposes,
see INA § 101(a)(43)(M)(ii) [8 U.S.C. § 1101(a)(43)(M)(ii)], without deciding whether
the statute’s parenthetical phrase “relating to tax evasion” was descriptive or restrictive.
However, the Evangelista court rejected the argument that the grammatical structure of
the statute compelled a particular conclusion. See id. (declining to follow the analysis set
forth in United States v. Monjaras-Castaneda, 190 F.3d 326, 329-30 (5th Cir. 1999)). In
contrast, in Patel, we concluded that the structure of the INA compels a conclusion that
the parenthetical “relating to” phrases “are intended only as a general illustration of the
referenced criminal statute . . . [to] assist the reader who is attempting to determine
whether a particular offense constitutes an aggravated felony.” Patel, 294 F.3d at 471.
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descriptive and not restrictive,” and merely provides “a shorthand description of all of the
offenses listed in INA § 274(a)(1)(A) [8 U.S.C. § 1324(a)(1)(A)].” Patel, 294 F.3d at3
470 (emphasis added). Our decision in Patel forecloses Lemanski’s claim.4
B.
Lemanski attempts to avoid Patel by arguing that recent Supreme Court precedent
requires a different result. Specifically, Lemaski argues that Lopez v. Gonzales, 549 U.S.
47, 53-54 (2006), and Leocal v. Ashcroft, 543 U.S. 1, 9-10 (2004), direct courts to
interpret the INA’s “aggravated felony” provisions “in light of the plan or ordinary

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meaning of the language involved.” According to Lemanski, the plain meaning of the
term “smuggling” implies transit over some border or boundary, while “transporting”
does not.
We do not disagree that Lopez and Leocal direct us to employ a plain meaning
approach. We have, however, already determined that the plain meaning of INA
§ 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N)] is that all of the offenses set forth in
§ 1324(a)(1)(A) and (2) meet the definition of “aggravated felony.” Specifically, in Patel,
we considered the analogous argument that “harboring an alien cannot be an aggravated
felony because the alien . . . was already in this country and he (Patel) had no part in the
alien’s illegal admission or entry.” Patel, 294 F.3d at 469 (emphasis in original).
Because Patel did not bring an alien into this country, he argued, the crime of harboring
an alien who was already in this country was not sufficiently “related to alien smuggling”
for INA purposes. Id.
We rejected the argument. Id. at 470. We concluded that the crime did relate to
alien smuggling, because “harboring an alien” required knowledge or reckless disregard
of the fact that the alien “has come to, entered, or remains in the United States in violation
of law.” Id. at 473, n.8. Likewise, Lemanski’s conviction of “transporting an alien”
incorporates that same element: knowledge or reckless disregard of the fact that the alien
“has come to, entered, or remains in the United States in violation of law.” See 8 U.S.C.

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We need not decide whether to accept Lemanski’s proposed definition of5
“smuggling,” which, he argues, requires transport over a border and does not include
“acts preceding or subsequent to an at of smuggling.” Even if we were to accept this
view, it would not bring his conviction outside the reach of the “aggravated felony”
definition. Lemanski simply ignores the language of the statute, which goes beyond the
act of “smuggling” to include crimes “relating to alien smuggling.”
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§ 1324(a)(1)(A)(ii). Accordingly, under Patel, Lemanski’s conviction “relat[es] to alien
smuggling.” 5
In addition, in Patel, we specifically concluded that the plain meaning of the
statute – as revealed by conventional rules of grammatical structure – was that “the
parenthetical, ‘relating to alien smuggling’ refers to ‘paragraph (1)(A) or (2) of section
1324(a) of this title,’ not ‘offense,’” and that a contrary conclusion “would result in . . . a
judicial amendment of the statute.” 294 F.3d at 472 (citing Monjaras-Castanela, 190 F.3d
at 329). Indeed, we noted that the descriptive approach “is the only way to read” the
provision. Patel, 294 F.3d at 473, n.9.
Although Lemanski argues otherwise, we reiterated this view of the statute’s plain
meaning after, and in light of, the Supreme Court’s decision in Lopez. In Biskupski, we
held that the plain meaning of INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N)] is clear:
“Congress plainly and unambiguously included the offenses described in 8 U.S.C.
§ 1324(a)(1)(A) and (2) as part of the definition of ‘aggravated felony’ in
§ 1101(a)(43)(N).” Biskupski, 503 F.3d at 280. Other Courts of Appeals have reached

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the same conclusion. See United States v. Salas-Mendoza, 237 F.3d 1246, 1247 (10th
Cir. 2001); Ruiz-Romero v. Reno, 205 F.3d 837, 840 (5th Cir. 2000).
Thus, we reject Lemanski’s argument that the Supreme Court’s decisions in Lopez
and Leocal require us to overrule Patel, or that they compel us to accept the restrictive
interpretation of the INA that Lemanski proposes. The plain meaning of the statute
compels the conclusion that Lemanski was convicted of a crime “relating to alien
smuggling” under INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N)].
C.
Finally, Lemanski argues that the “rule of lenity” should apply to his case. As we
noted in Patel, this rule only applies where a criminal statute gives rise to grievous
ambiguity or uncertainty. See Patel, 294 F.3d at 473, n.9. This is simply not such a
statute. “INA § 101(a)(43)(N) is not ambiguous or uncertain, let alone grievously so.”
Id. Accordingly, we will not apply the rule of lenity in this case.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.

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