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Revised March 8, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-60129
__________________________
FILBERTO RUIZ-ROMERO,
Petitioner,
versus
JANET RENO,
U.S. Attorney General,
Respondent.
______________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
______________________________________________________
March 3, 2000
Before JONES, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:
Ruiz-Romero appeals from a judgment of the Board of
Immigration Appeals ("BIA") ordering that he be deported. We hold
that Ruiz-Romero has committed an "aggravated felony" as that term
is defined in Section 101(a)(43)(N) of the Immigration and
Nationality Act ("INA");1 we are compelled, therefore, to dismiss
the appeal for want of jurisdiction.
I.
FACTS & PROCEEDINGS
Ruiz-Romero entered the United Stated without inspection in
18 U.S.C. § 1101(a)(43)(N). Unless otherwise indicated, all
citations to the current version of the INA.

1984. In 1987, he was granted temporary resident status through
the legalization program, and in 1990 he adjusted his status to
that of lawful permanent resident. In November 1995, Ruiz-Romero
was arrested for transporting eight Mexican aliens from one point
in New Mexico to another in violation of INA § 274(a)(1)(A)(ii).
That section provides:
[Any person who----] knowing or in reckless disregard of
the fact 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).]2
In December 1996, the Immigration and Naturalization Service
("INS") commenced deportation proceedings against Ruiz-Romero. The
INS charged that Ruiz-Romero had been convicted of an aggravated
felony
and
was
therefore
deportable
pursuant
to
INA
§ 237(a)(2)(A)(iii),3 which provides that "[a]ny alien who is
convicted of an aggravated felony at any time after admission is
deportable." Ruiz-Romero moved to terminate the deportation
proceedings on the ground that he had not committed an "aggravated
felony" as that phrase is defined by INA § 101(a)(43).
The immigration judge ("IJ") denied the motion and ordered
28 U.S.C. § 1324(a)(1)(A)(ii).
3At the time deportation proceedings were commenced against
Ruiz-Romero,
this
provision
was
codified
at
INA
§ 241(a)(2)(A)(iii). It was subsequently recodified by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, as INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
2

that Ruiz-Romero be deported. Ruiz-Romero appealed and the BIA
upheld the IJ's order.4 Ruiz-Romero timely appealed the BIA's
decision.
II.
DISCUSSION
A.
Standard of Review
Generally, in immigration cases we review only the decision of
the BIA, not that of the IJ.5 "BIA conclusions of law are reviewed
de novo (although with the usual deference to the Board's
interpretation of ambiguous provisions on the Act in accordance
with Chevron U.S.A. Inc. v. Natural Resources Defense Council, 476
U.S. 837 (1984))."6
B.
Jurisdiction
The pivotal question in this appeal is whether the
parenthetical phrase "(relating to alien smuggling)" found in the
definition of "aggravated felony" in INA § 101(a)(43)(N),7
describes or restricts the statutory references that directly
precede it. That section provides in full:
[The term "aggravated felony" means----] an offense
described in paragraph (1)(A) or (2) of [INA] section
4See Matter of Ruiz-Romero, 22 I. & N. __, 19 Immigr. Rep. B1-
351 (Interim Decision No. 3376, BIA 1999).
5See Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.
1996).
6Id.
78 U.S.C. § 1101(a)(43)(N).
3

274(a) [8 U.S.C. § 1324(a)] (relating to alien
smuggling), except in the case of a first offense for
which the alien has affirmatively shown that the alien
committed the offense for the purpose of assisting,
abetting, or aiding only the alien's spouse, child, or
parent (and no other individual) to violate a provision
of this act[.]
Ruiz-Romero argues that the parenthetical phrase is
restrictive. He urges that only those offenses that are both cross
referenced by INA § 101(a)(43)(N) and that "relat[e] to alien
smuggling" fit the definition of aggravated felony. Ruiz-Romero
concedes that he has been convicted of a crime that is cross
referenced by INA § 101(a)(43)(N); he argues, however, that because
he transported aliens from one point to another within the United
States without crossing a national border, he did not "smuggle"
aliens.8 Ruiz-Romero concludes that because the government has not
proved that he was convicted of a crime relating to alien
smuggling, he is not an aggravated felon and is therefore not
deportable.
The government, on the other hand, contends that the
parenthetical is a short-hand description of the cross referenced
provisions, not a substantive restriction. The BIA agreed, holding
that
the parenthetical is merely descriptive. A reading of
[INA §] 101 (a)(43) in its entirety supports this
conclusion. Section 101(a)(43) references a number of
statutes that are outside of the [INA]. These include
8The term "smuggle" is generally understood to require the
crossing of a national border. See United States v. Monjaras-
Castaneda, 190 F.3d 326, 328 (5th Cir. 1999).
4

provisions contained in titles 18, 26, and 50 of the
[U.S.C.]. Instead of requiring the reader to examine the
referenced titled and section of the code, [the many]
subparagraphs . . . of [INA §] 101(a)(43) include
parentheticals which provide a shorthand description of
the referenced criminal offenses.9
In United States v. Monjaras-Casteneda,10 we faced precisely
the same question in the sentencing-guidelines context11 and reached
the same conclusion as did the BIA in this case. We held that
"`(relating to alien smuggling)' acts only to describe, not to
limit the `offenses described in paragraph (1)(A) or (2) of section
1324(a).'"12 Ruiz-Romero argues that because this is an immigration
case and Monjaras-Casteneda was a sentencing guidelines case, it is
merely persuasive authority and should be disregarded. We
disagree.
9Matter of Ruiz Romero, 22 I. & N. __, 19 Immigr. Rep. B1-351
(Interim Decision No. 3376, BIA 1999).
10190 F.3d 326, 331 (5th Cir. 1999).
11Monjaras-Casteneda was convicted of illegal reentry into the
United States in violation of 8 U.S.C. § 1326(a) & (b)(2). See id.
at 327. He had previously been arrested for transporting aliens in
violation of INA § 241(a)(2)(A)(iii) (now INA § 237(a)(2)(A)(iii),
see supra n.3) and deported. (Ruiz-Romero was convicted under the
same sub-section.) The Sentencing Guidelines section applicable to
Monjarads-Casteneda's illegal reentry conviction provides for a
sentencing enhancement for those who have previously been convicted
of an aggravated felony. Application Note One to that section of
the sentencing guidelines provides that "[a]ggravated felony is
defined at 8 U.S.C. § 1101(a)(43)." See U.S.S.G. § 2L1.2, comment,
n.1. In Monjaras-Casteneda, therefore, we applied the same
definition of "aggravated felony" to the same underlying
substantive offense (i.e., transporting aliens within the United
States in violation of INA § 237(a)(2)(A)(iii)).
12190 F.3d at 331.
5

Ruiz-Romero correctly points out that in United States v.
Pornes-Garcia13 the Second Circuit gave a different meaning to
"aggravated felony" for sentencing-guidelines purposes than a prior
Second Circuit panel had for immigration purposes. The Pornes-
Garcia court recognized, however, that it was departing from the
usual rule that favors uniformity in statutory construction.14 That
court
found,
nevertheless,
that
there
were
overriding
considerations that supported construing the same language
differently.15 Unlike the Pornes-Garcia court, we perceive no
overriding considerations in this case and are not persuaded that
we should deviate from our prior holding.
We therefore hold, in accordance with Monjaras-Casteneda,16
that the first parenthetical phrase in INA § 101(a)(43)(N) is a
description of, not substantive restriction on, the statutory cross
references that precede it.17 It necessarily follows that the BIA
13171 F.3d 142, 147 (2d Cir. 1999).
14See, e.g., United States v. Fernandez, 887 F.2d 465 (4th Cir.
1989); 2B NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 53.01 (1992
rev. ed.) ("Harmony and consistency are positive values in a legal
system because they serve the interests of impartiality and
minimize arbitrariness. Construing statutes by reference to others
advances those values. In fact, courts have been said to be under
a duty to construe statutes harmoniously where that can reasonably
be done." (footnotes omitted)).
15See 171 F.3d at 147.
16190 F.3d at 331.
17All of Ruiz-Romero's arguments regarding why the
parenthetical phrase is limitation on the statutory references that
precede it, and his alternative argument that the rule of lenity is
6

was correct when it concluded that Ruiz-Romero committed an
aggravated felony.
Deportation proceedings were commenced against Ruiz-Romero
before April 1, 1997 and concluded more than thirty days after
October 30, 1996; therefore, this case is governed by the IIRIRA
transitional rules.18 Under those rules, the Courts of Appeals have
no jurisdiction over final orders of removal issued against aliens
who have been convicted of an aggravated felony.19 As we therefore
lack subject matter jurisdiction, this appeal is
DISMISSED.
applicable, were considered and rejected in Monjaras-Castaneda. We
need not repeat that discussion here.
18See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302-03
(5th Cir. 1999); IIRIRA §§ 309(a) & (c)(1).
19See IIRIRA § 309(c)(4)(G).
7