Crimes of Moral Turpitude

 

(B)  Appellate Review.[229]  An immigration judge must apply the law of the circuit in which s/he sits, and it is to that circuit that any appeal of the BIA must be addressed in the case.  Noncitizens do not have the right to have removal proceedings commenced in any particular jurisdiction (and thus to choose the law applicable to them).[230]  For example, a noncitizen convicted of an offense that is not considered an aggravated felony in the circuit in which they reside, may be arrested by the DHS in another circuit or transferred to another circuit where the conviction is considered an aggravated felony.  The noncitizen may move to change venue to another immigration court (usually based upon residence),[231] but whether to grant a change of venue is a discretionary issue for the immigration judge, and is not subject to judicial review.[232]

 

            (1)  Bar to Judicial Review of Removal Orders Based on Certain Criminal Grounds.   In 1996, Congress enacted restrictions against judicial review of final exclusion, deportation, or removal orders for noncitizens inadmissible or excludable for any criminal ground at all under INA § 212(a)(2), or deportable for any criminal ground under INA § 237(a)(2),[233] except for domestic violence, conviction of a single CMT within five years of admission with a maximum possible punishment of at least one year, or conviction of two CMTs where one or both were punishable by a maximum term of less than one year imprisonment.[234]  To trigger this bar, the removal order must be based upon the criminal offense,[235] but the particular ground does not matter.[236]  Therefore, if a noncitizen was found removable under the domestic violence ground for an offense that is also an aggravated felony, the jurisdictional bar applies.[237]  The preclusion of judicial review triggered by an aggravated felony conviction requires a conviction that meets the aggravated felony definition and which was entered on or after, but not before, September 30, 1996, the effective date of IIRAIRA.[238]  This bar does not extend to the national security related grounds of removal.[239]

 

While the REAL ID Act of 2005 did not repeal the jurisdiction-stripping provision, it retroactively[240] added a provision that gives the courts of appeal jurisdiction over otherwise barred cases to review constitutional questions and questions of law.[241]  All courts to have reviewed the issue thus far have therefore found that they are no longer barred by INA § 242(a)(2)(C) from deciding whether a noncitizen is subject to a particular criminal ground of removal.[242]  They are also no longer barred from reaching questions of statutory eligibility for relief, or other legal or constitutional questions, even if the court finds that the noncitizen is removable.[243]

 

However, the courts have also found that this exception to the jurisdictional bar does not extend any further than the jurisdiction the district courts previously had via habeas corpus.[244]  The appellate courts still cannot review issues that, under prior law, were barred from habeas corpus review as factual determinations. The courts to have addressed the issue tend to agree that this scope of review includes mixed questions of law and fact.

 

Noncitizens found deportable under the domestic violence ground, or the other criminal grounds not barred by INA § 242(a)(2)(C), presumably can request review of (not otherwise barred) factual and mixed questions.  The limitation on judicial review does not preclude a criminal court from entertaining a collateral attack against the validity of a deportation order in the context of a prosecution for illegal re-entry.[245]

 

(2)  Discretionary Issues Bar.[246]  In 1996,[247] Congress also barred appellate review of any decision in the discretion of the Attorney General,[248] including discretionary denials of relief under INA § § 212(c), 212(h), 212(i), 240A, 240B, or 245. [249]  Other discretionary decisions as to which review is barred are parole decisions,[250] and other waivers, such as for alien smuggling,[251] document fraud[252] and unlawful presence.[253]  The courts are split on whether they are precluded from reviewing a determination of the existence of Good Moral Character.[254]  The courts are also split as to whether the decision that an offense is  a “particularly serious crime” for asylum and withholding purposes is a discretionary decision, and thus barred.[255]  One court has found the determination of whether a battered spouse has been subject to “extreme cruelty” for VAWA adjustment purposes to be a discretionary decision.[256]

 

The only express exception to this bar is asylum.[257]  The REAL ID Act makes unreviewable any discretionary decision of the Secretary of Homeland Security as well, regardless of whether the decision or action is made in removal proceedings.[258]

 

However, this jurisdictional bar does not preclude review of constitutional issues or pure questions of law.[259]  Therefore, a claim could be brought arguing, for example, that an immigration judge’s discretionary finding violated due process.[260]  Some courts are viewing some legal issues to be only thinly disguised attempts to obtain review of a discretionary decision.[261] The Fifth Circuit has found that it cannot review the question of whether the BIA followed its own precedent in making a discretionary decision.[262]  Noncitizens may, however, challenge any finding that they are not statutorily eligible for a form of discretionary relief.[263]  This bar also does not apply to mandatory forms of relief, such as relief under the Convention Against Torture.[264]  This bar does not preclude review of abuses of discretion.[265]  The REAL ID Act allows review of mixed questions of law and fact.[266]

 

            (3)  Level of Review (Deference).  A federal court gives Chevron deference to an agency interpretation when it is in an area of agency expertise or when it relates to congressionally delegated “authority to the agency generally to make rules carrying the force of law.”[267]  In determining whether a criminal offense triggers a ground of removal, the appellate courts will “uphold the BIA’s determination [of] what conduct [triggers the ground of removal] under the INA if it is reasonable.  However, a determination of the elements of a [state] crime . . . for purposes of [removal] pursuant to the INA is a question of law,” and is reviewed de novo.[268]  In other words, the courts review the BIA’s legal decisions de novo, but will afford Chevron deference only to the BIA’s reasonable interpretations of ambiguities in statutes which it is charged with administering.[269] 

 

The courts are split on the question of whether the BIA deserves Chevron deference on the question of whether a given criminal conviction is a CMT.  The Fifth Circuit, for example, does not believe deference is owed because the definition of "moral turpitude" is not solely within the domain of immigration law, since the concept appears in other contexts.[270]  The Ninth Circuit found no deference is owed because moral turpitude is an “amorphous phrase” rather than a statutory term to be interpreted by a particular agency.[271]  The Second Circuit does give deference to the BIA.[272]

Conversely, the BIA must give deference to the United States Supreme Court and Federal Circuit courts on questions of criminal law.[273]

[229] For an interesting article on appellate review, see John R.B. Palmer, Stephen W. Yale-Loehr, and Elizabeth Cronin, “Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review” (Aug. 4, 2005). Cornell Law School. Cornell Law School Working Papers Series. Paper 18.
http://lsr.nellco.org/cornell/clsops/papers/18

[230] Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006). See also Latu v. Ashcroft, 375 F.3d 1012 (10th Cir. 2004); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993).

[231] 8 C.F.R. § 1003.20.

[232] Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (whether to grant a change of venue is in the discretion of the immigration judge, even where good cause to change venue is shown, and is not subject to judicial review).

[233] See, e.g., Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (aggravated felony conviction bars court of appeals, under 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” an aggravated felony], from reviewing noncitizen’s claims under the Convention Against Torture), following Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005).

[234] INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).

[235] McAllister v. United States Att’y Gen., 444 F.3d 178 (3d Cir. Apr. 10, 2006) (for purposes of jurisdictional bar at 8 U.S.C. § 1252(a)(2)(C), a noncitizen is not “removable for reason of having committed [an enumerated] criminal offense” unless the final order of removal is grounded, at least in part, on one of those enumerated offenses).

[236] Alvarez-Santos v. INS, 332 F.3d 1245, 1251 (9th Cir. 2003) (jurisdiction bar is not triggered by removability unless the immigration courts have upheld a removal order based on a crime; “a person is not ‘removable’ on a particular basis unless or until the IJ determines that he is.”).  But see Kelava v. Gonzales, 434 F.3d 1120 (9th Cir. Jan. 12, 2006) (court had jurisdiction to review case since BIA chose not to address nonreviewable aggravated felony conviction finding of IJ in its decision, basing its decision solely on reviewable ground that the noncitizen had engaged in terrorist activity).

[237] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (“Because the BIA also determined that Garcia-Echaverria was removable based upon his conviction of a controlled substance offense, the Fifth Circuit would have held that it lacked jurisdiction and dismissed the appeal, without determining whether Garcia-Echaverria’s Kentucky drug conviction constituted an ‘aggravated felony.’”); Flores-Garza v. INS, 328 F.3d 797, 802-03 (5th Cir. 2003); Bayudan v. Ashcroft, 287 F.3d 761, 763-764 (9th Cir. Apr. 15, 2002); Fernandez-Bernal v. Att’y Gen of United States, 257 F.3d 1304 (11th Cir. July 19, 2001); Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir. 1999) (“Because the deportation order was necessarily based on [a crime which] qualifies as an aggravated felony, [the Ninth Circuit has] no appellate jurisdiction even though the deportation order did not characterize the crime as an aggravated felony or base deportation on that ground.”). But see Adefemi v. Ashcroft, 358 F.3d 828 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003), on reh. en banc, 386 F.3d 1022 (11th Cir. 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005); Xiong v. INS, 173 F.3d 601, 608 (7th Cir. 1999); Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997).

[238] Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. Nov. 11, 2002) (conviction did not deprive the court of appeals of jurisdiction over a petition for review where it did not qualify as an aggravated felony under pre-IIRAIRA immigration law).

[239] McAllister v. United States Att’y Gen., 444 F.3d 178 (3d Cir. Apr. 10, 2006) (INA § 237(a)(4)(B) ground of removal based upon terrorism is not listed in INA § 242(a)(2)(C), and therefore does not bar court from judicial review).

[240] REAL ID Act  § 106(b), Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005).

[241] INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(C), added by § 106(a)(1) of the REAL ID Act, supra.

[242] See Rodriguez-Castro v. Gonzales, 427 F.3d 316 (5th Cir. 2005); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005); accord Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005); Gattem v. Gonzales, 412 F.3d 758, 762 (7th Cir. 2005); Lopez v. Gonzales, 417 F.3d 934, 936 (8th Cir. 2005).

[243] Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (Congress restored judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders by providing that nothing in INA § § 242(a)(2)(B), (C), 8 U.S.C. § §  1252(a)(2)(B), (C), or any other provision of the INA shall preclude judicial review of such orders, unless such review is barred by some other provision of INA § 242, 8 U.S.C. § 1252).

[244] See, e.g., Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) (“We construe the intent of Congress’s restoration under the Real ID Act rubric of ‘constitutional claims or questions of law’ to encompass the same types of issues that courts traditionally exercised in habeas review over Executive detentions.”);  Kamara v. Att’y Gen. of the United States, 420 F.3d 202, 210-211 (3d Cir. Aug. 29, 2005) (“A review for ‘constitutional claims or questions of law,’ as described in [INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)] mirrors our previously enunciated standard of review over an alien’s habeas petition.”).

[245] United States v. Arce-Hernandez, 163 F.3d 559 (9th Cir. 1998), citing Chow v. INS, 113 F.3d 659 (7th Cir. 1997), distinguishing Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996).

[246] See AILF practice advisory: Federal Court Jurisdiction Over Discretionary Decisions After REAL ID: Mandamus, Other Affirmative Suits and Petitions for Review (Apr. 5, 2006).  http://www.ailf.org/lac/realid_update_040506.pdf

[247] Noncitizens whose orders of deportation or exclusion became final before October 31, 1996, may seek judicial review as provided by former INA § 106.  If the deportation order became final on or after October 31, 1996, the transitional rules contained in IIRAIRA § 309(c)(4) apply.

[248] Arguably, this bar does not apply unless the INA expressly places the decision within the discretion of the Attorney General or Secretary of the Department of Homeland Security.

[249] INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B).  See, e.g., Jarad v. Gonzales, 461 F.3d 867 (7th Cir. Aug. 24, 2006) (Immigration Judge did not commit legal error in making discretionary decision to deny INA § 245(i) adjustment to noncitizen who failed to depart following deportation proceedings 13 years earlier; court lacks jurisdiction to review discretionary denial of INA § 245(i) adjustment); Zhang v. Gonzales, 457 F.3d 172 (2d Cir. Jul. 12, 2006) (judicial review of whether respondent showed extreme hardship for purposes of adjustment of status under INA § 212(i) is barred as a discretionary determination under 8 U.S.C. § 1252(a)(2)(B)(i)); Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (court did not have jurisdiction to review determination that noncitizen had abandoned her permanent resident alien status for purposes of § 212(c) and cancellation of removal eligibility); Avendano-Espejo v. DHS, 448 F.3d 503 (2d Cir. May 11, 2006) (court lacks jurisdiction to review discretionary denial of INA § 212(c) relief); Martinez v. U.S. Att’y Gen., 446 F.3d 1219 (11th Cir. Apr. 21, 2006); Hadwani v. Gonzales, 445 F.3d 798 (5th Cir. Apr. 4, 2006); Grass v. Gonzales, 418 F.3d 876 (8th Cir. Aug. 12, 2005).

[250] INA § 212(d)(5), 8 U.S.C. § 1182(d)(5).

[251] INA § 237(a)(1)(E)(iii), 8 U.S.C. § 1227(a)(1)(E)(iii).

[252] INA § 237(a)(3)(C)(ii), 8 U.S.C. § 1227(a)(3)(C)(ii).

[253] INA § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v).

[254] Compare Jean v. Gonzales, 435 F.3d 475 (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has Good Moral Character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review); Moran v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005) (a Good Moral Character determination is subject to judicial review only when it is based upon one of the statutory exclusions in INA § 101(f)), with Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (court lacks jurisdiction to review IJ determination that respondent lacked Good Moral Character required to be eligible for relief); Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005) (no judicial review since determination of Good Moral Character is a discretionary factor).

[255] Compare Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007); Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (decision that criminal offense was a “particularly serious crime” not barred from judicial review, since the question is a matter of law, not in the discretion of the Attorney General); Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (court of appeals has jurisdiction under REAL ID Act to review question of law whether BIA applied proper legal standard to determine whether conviction constituted a “particularly serious crime” for purposes of withholding of removal), with Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (question whether conviction constitutes a particularly serious crime, under INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), precluding political asylum or withholding of deportation, is held to be a discretionary decision not subject to petition for review jurisdiction in the court of appeals).

[256] Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. Jul. 5, 2006) (court of appeals lacks jurisdiction to review whether Petitioner was subjected to “extreme cruelty” for purposes of the battered spouse provision in INA § 240A(b)(2), 8 U.S.C. § 1229b(b)(2)).

[257] Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes of a sexual nature, in violation of Wash. Rev. Code § 9.68A.090, although it constituted crime of moral turpitude, did not deprive court of appeals of petition for review jurisdiction over political asylum claim because jurisdiction-stripping statute, INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii), specifically exempts asylum cases).

[258] INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), as amended by the REAL ID Act, supra.

[259] INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).

[260] See, e.g., Reyez-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) (bias of immigration judge prevented her from acting as a neutral fact-finder and prevented her from considering and evaluating evidence relevant to establishing extreme hardship); Akhtar v. Gonzales, 406 F.3d 399 (6th Cir. Apr. 29, 2005) (BIA abused its discretion in denying motion to reopen where it failed properly to apply its own regulations).

[261] See, e.g., Delgado-Reynua v. Gonzales, 450 F.3d 596 (5th Cir. May 23, 2006) (noncitizen’s claim that BIA incorrectly applied de novo review in reversing IJ’s discretionary grant of relief under INA § 212(c) was not a legal question subject to review; finding noncitizen’s claim was merely a disguised attempt to obtain circuit court review of discretionary issue).

[262] Falek v. Gonzales, 475 F.3d 285 (5th Cir. Jan. 8, 2007) (court of appeals lacked jurisdiction to consider claim that BIA failed to follow its own precedent).

[263] See, e.g., Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. May 4, 2005) (jurisdiction limitation, under INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under INA § 240A, 8 U.S.C. § 1229b or for adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i)); Limon v. Gonzales, 404 F.3d 1143 (9th Cir. Apr. 19, 2005) (court had jurisdiction to review denial of INA § 212(k), 8 U.S.C. 1182(k) waiver under INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii), where BIA decision denying waiver was based on statutory ineligibility, rather than discretionary finding).

[264] N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.7 (4th ed. 2007)

[265] Khan v. Attorney General, 448 F.3d 226 (3d Cir. May 22, 2006) (court of appeals has jurisdiction to consider arguments that BIA erred in affirming denial of request for continuance of removal hearing as abuse of discretion and as a violation of due process); Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir. 2005) (the BIA abuses its discretion if it fails to give specific reasons for denying a motion to reopen); cf. Koon v. United States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”).

[266] E.g., Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. Feb. 22, 2007) ("By implying a fixed dichotomy between fact and law, our brief initial opinion inadvertently failed to consider an important category of cases—those that raise mixed questions of law and fact. We join the Second Circuit in holding that 'questions of law' is broader than just statutory interpretation."), following Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) (“We construe the intent of Congress’s restoration under the Real ID Act rubric of ‘constitutional claims or questions of law’ to encompass the same types of issues that courts traditionally exercised in habeas review over Executive detentions”).

[267] United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).  The Third Circuit has questioned whether a decision by an Immigration Judge, reviewed directly following a summary affirmance by the BIA, is due Chevron deference. Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (3d Cir. 2004). 

[268] Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000), citing Michel v. INS, infra, quoting Hamdan v. INS, 98 F.3d 183, 185 (5th Cir. 1996); Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000) (opinion of Sotomayor, J.) (BIA finding that crimes involved “moral turpitude” warranted Chevron deference, since the BIA was interpreting a term contained in the Immigration and Nationality Act).  See generally Franklin v. INS, 72 F.3d 571, 577-78 (8th Cir. 1995) (Bennett, J, dissenting) (noting an apparent circuit split over the applicable standard of review for BIA findings of moral turpitude).  Compare Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n.4 (9th Cir. 1995) (stating that whether a state criminal statute involves moral turpitude is a question of law to be reviewed de novo), with Cabral v. INS, 15 F.3d 193, 194-97 (1st Cir. 1994) (applying the Chevron approach to determine whether a state crime involved “moral turpitude” within the meaning of the INA).

[269] INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439 (1999);  Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778 (1984).

[270] Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) ("We give Chevron deference to the BIA's interpretation of the INA when appropriate, but we review de novo the BIA's interpretation and evaluation of state law in deciding whether a particular state law offense is a CIMT."), following Rodriguez-Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir. 2005).

[271] Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) ("We review de novo “whether a state statutory crime constitutes a crime involving moral turpitude.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007) (en banc) (internal quotations omitted). The government argues that the BIA’s decision is entitled to Chevron deference because it was based on its prior precedential decision and cited Ninth Circuit precedent. However, as the government acknowledges, we have rejected that Chevron deference should apply to the BIA’s interpretation of the “amorphous phrase” “crime involving moral turpitude” because the BIA has done nothing to particularize the meaning of the term. Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1058 n.9 (9th Cir. 2006). The BIA’s construction of a state statute is likewise due no deference because it is “not a statute which the BIA administers or has any particular expertise in interpreting.” Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003).").

[272] Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007); Michel v. INS, 206 F.3d 253, 262-65 (2d Cir. 2000).

[273] Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 385 (BIA Dec. 13, 2007) (en banc) (BIA owes deference to the Supreme Court and the Federal circuit courts of appeals on questions of federal criminal law, without regard to whether the court construed the statute in the immigration context or the criminal sentencing context, as long as the identical provision was at issue, following Matter of Yanez, 23 I. & N. Dec. 390, 396-97 (BIA 2002), and citing Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (explaining that, if a statute has criminal applications, “the rule of lenity applies” to the Court’s interpretation of the statute even in immigration cases “[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context”).  But see National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 982-983, 125 S.Ct. 2688 (June 27, 2005) ("A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. . . .  Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. " [emphasis added]).