Cite as 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
1 We note that the although the respondent’s judgment of conviction states that his offense
was “attempted” bribery of a public official, there is no language relating to attempt
in 18 U.S.C. § 201(b)(1)(A), and the indictment against the respondent only charges the
substantive crime, with no mention of attempt. No issue has been raised by the parties in this
Matter of Chrysanth George GRUENANGERL, Respondent
Decided October 15, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) (2006)
is not an offense “relating to” commercial bribery and is therefore not an aggravated
felony under section 101(a)(43)(R) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(43)(R) (2006).
FOR RESPONDENT: Melissa M. Lopez, Esquire, El Paso, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Tiffany L. Garraton, Assistant
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
In a decision dated September 22, 2009, an Immigration Judge found the
respondent removable from the United States under section 237(a)(2)(A)(iii)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006),
as an alien convicted of an aggravated felony. The respondent has timely
appealed from that decision. The appeal will be sustained in part, and the
record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Austria who was admitted
to the United States as a lawful permanent resident on March 13, 1989.
On July 16, 2007, he was convicted of bribery of a public official in violation
of 18 U.S.C. § 201(b)(1)(A) (2006), for which he was sentenced to 36 months
Cite as 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
2 We note that a conviction for bribery of a public official under 18 U.S.C. § 201(b)(1) does
not require that something of value be given. Making an offer or promise of something
of value is sufficient.
The Department of Homeland Security (“DHS”) initiated removal
proceedings against the respondent, charging that he is removable under
sections 237(a)(2)(A)(i) and (iii) of the Act, as an alien convicted of a crime
involving moral turpitude and an aggravated felony. Specifically, the DHS
charged that the respondent’s crime qualified as an aggravated felony because
it was an offense relating to commercial bribery under section 101(a)(43)(R)
of the Act, 8 U.S.C. § 1101(a)(43)(R) (2006), and obstruction of justice,
perjury or subornation of perjury, or bribery of a witness under section
The Immigration Judge found that the respondent’s conviction was for
an aggravated felony under section 101(a)(43)(R) of the Act, but not
under section 101(a)(43)(S). The Immigration Judge did not make a ruling
as to whether the respondent is removable under section 237(a)(2)(A)(i) of the
Act as an alien convicted of a crime involving moral turpitude. On appeal,
the respondent argues that his offense is not an aggravated felony under
section 101(a)(43)(R) of the Act and that the proceedings should therefore
At issue in this case is whether the Immigration Judge correctly held that
the respondent’s conviction for bribery of a public official was for an offense
“relating to commercial bribery” under section 101(a)(43)(R) of the Act.
We review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2010).
III. APPLICABLE LAW
The respondent was convicted under 18 U.S.C. § 201(b)(1)(A), which
prohibits the “[b]ribery of public officials and witnesses.” That section
provides, in relevant part, that a person violates the statute if he or she
directly or indirectly, corruptly gives, offers or promises anything of value to any
public official or person who has been selected to be a public official, or offers
or promises any public official or any person who has been selected to be a public
official to give anything of value to any other person or entity, with intent—
(A) to influence any official act . . . .2
(Emphasis added.) Cite as 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
3 Federal law includes several commercial bribery statutes targeted at bribery of persons
in specific industries, such as 18 U.S.C. §§ 212-213, 215 (financial institutions), 18 U.S.C.
§ 224 (sports), 18 U.S.C. § 1954 (employee welfare benefit and pension plans), and
41 U.S.C. § 53 (United States contractors). The Final Report of the National Commission
on Reform of Federal Criminal Laws (1971) recommended enactment of a general Federal
commercial bribery statute, but none was ever enacted despite the inclusion of such
a proposal in subsequent bills to revise the Federal criminal code. Notably, however,
these bills treated bribery of public officials and commercial bribery as very different species
of offenses, placing them in different chapters of the proposed code. See, e.g., S. Rep. No.
97-307 (1981) (to accompany S. 1630, which included bribery of public officials in chapter
13, at section 1351, and commercial bribery in chapter 17, at section 1751).
Under section 101(a)(43)(R) of the Act, “an offense relating
to commercial bribery . . . for which the term of imprisonment is at least one
year” is an aggravated felony. The Act does not define what constitutes
“commercial bribery.” There is also no Federal definition of commercial
bribery because there is no general Federal offense of commercial bribery.3
Black’s Law Dictionary 204 (8th ed. 2004) defines commercial bribery
1. The knowing solicitation or acceptance of a benefit in exchange for violating an
oath of fidelity, such as that owed by an employee, partner, trustee, or attorney.
Model Penal Code § 224.8(1). 2. A supposedly disinterested appraiser’s acceptance
of a benefit that influences the appraisal of goods or services. Model Penal Code
§ 224.8(2). 3. Corrupt dealing with the agents or employees of prospective buyers to
secure an advantage over business competitors.
Section 224.8 of the Model Penal Code defines commercial bribery as follows:
(1) A person commits a misdemeanor if he solicits, accepts or agrees to accept any
benefit as consideration for knowingly violating or agreeing to violate a duty
of fidelity to which he is subject as:
(a) partner, agent, or employee of another;
(b) trustee, guardian, or other fiduciary;
(c) lawyer, physician, accountant, appraiser, or other professional adviser
(d) officer, director, manager or other participant in the direction of the affairs
of an incorporated or unincorporated association; or
(e) arbitrator or other purportedly disinterested adjudicator or referee.
(2) A person who holds himself out to the public as being engaged in the business
of making disinterested selection, appraisal, or criticism of commodities or services
commits a misdemeanor if he solicits, accepts or agrees to accept any benefit
to influence his selection, appraisal or criticism.
(3) A person commits a misdemeanor if he confers, or offers or agrees to confer,
any benefit the acceptance of which would be criminal under this Section.Cite as 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
4 For purposes of the commercial bribery definition, section 32.43(a) of the Texas Penal
Code provides the following definitions:
(1) “Beneficiary” means a person for whom a fiduciary is acting.
(2) “Fiduciary” means:
(A) an agent or employee;
(B) a trustee, guardian, custodian, administrator, executor, conservator, receiver,
or similar fiduciary;
(C) a lawyer, physician, accountant, appraiser, or other professional advisor; or
(D) an officer, director, partner, manager, or other participant in the direction of
the affairs of a corporation or association.
Many State statutes also criminalize commercial bribery. For example,
section 32.43 of the Texas Penal Code defines commercial bribery as follows:
(b) A person who is a fiduciary commits an offense if, without the consent of his
beneficiary, he intentionally or knowingly solicits, accepts, or agrees to accept any
benefit from another person on agreement or understanding that the benefit will
influence the conduct of the fiduciary in relation to the affairs of his beneficiary.
(c) A person commits an offense if he offers, confers, or agrees to confer any
benefit the acceptance of which is an offense under Subsection (b).4
Similarly, section 53a-160(a) of the Connecticut Penal Code defines
commercial bribery as follows:
A person is guilty of commercial bribery when he confers, or agrees to confer,
any benefit upon any employee, agent or fiduciary without the consent of the latter’s
employer or principal, with intent to influence his conduct in relation to his
employer’s or principal’s affairs.
The statute under which the respondent was convicted, 18 U.S.C. § 201,
involves bribery of a “public official,” a broadly defined term that includes not
only persons employed by the Government but any other “person acting for
or on behalf of the United States.” 18 U.S.C. § 201(a)(1); see also Dixson
v. United States, 465 U.S. 482 (1984). Conviction under this statute requires
the intent to influence an “official act,” another term that is broadly defined
as “any decision or action on any question, matter, cause, suit, proceeding
or controversy, which may at any time be pending, or which may by law
be brought before any public official, in such public official’s official
capacity.” 18 U.S.C. § 201(a)(3).
Thus, the gravamen of the offense is the intent to influence official conduct.
It is immaterial whether the official act is expected to result in pecuniary gainCite as 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
The indictment set forth that the respondent promised to pay to an employee of the
United States Forest Service a portion of a finder’s fee that the respondent expected
to receive for the sale of a new gondola at a ski resort, if the Forest Service employee would
tell the ski resort in a report that it needed to replace the gondola.
or loss to the Government or to the person who offers or takes the bribe.
While many acts of bribery may be ultimately motivated by a desire for
pecuniary enrichment, as was apparently the case here,5
the essence of the
offense is the corrupt intent to influence official action. Commercial bribery,
however, focuses on influencing action in the private sector involving the
breach of the duty of fidelity. See 2660 Woodley Road Joint Venture v. ITT
Sheraton Corp., 369 F.3d 732, 737 n.4 (3d Cir. 2004).
Given the fundamental conceptual difference in purpose between bribery
of a public official to influence official action and a private sector commercial
bribery, we agree with the respondent that the offense defined in 18 U.S.C.
§ 201(b)(1)(A) is not one “relating to” to commercial bribery. However, the
Immigration Judge found to the contrary, citing as persuasive authority
an unpublished decision by the United States Court of Appeals for the Third
Circuit. Nyakatura v. Att’y Gen. USA, 256 F. App’x 461, 466-67 (3d Cir.
2007) (holding that bribery concerning a program receiving Federal funds
under 18 U.S.C. § 666 was an offense “relating to” commercial bribery). The
respondent contends that Nyakatura improperly broadens the offenses that may
be considered under section 101(a)(43)(R) of the Act. He asserts that the Fifth
Circuit, in whose jurisdiction this case arises, has taken a more restrictive
approach, under which the phrase “relating to” would require that his offense
be described as a crime of “commercial bribery.” Ruiz-Romero v. Reno,
205 F.3d 837 (5th Cir. 2000). Thus, he argues that the offense of which
he was convicted is not one “relating to” commercial bribery.
We do not read Ruiz-Romero v. Reno as interpreting the phrase “relating to”
in a more limited manner than other circuits. In that case, the Fifth Circuit
examined section 101(a)(43)(N) of the Act, which provides that the definition
of an aggravated felony includes “an offense described in paragraph (1)(A)
or (2) of section 274(a) (relating to alien smuggling).” In particular, the court
looked to the meaning of the words “relating to.” The court found that
the phrase “relating to alien smuggling” is a “description of, not substantive
restriction on, the statutory cross references that precede it.” Ruiz-Romero
v. Reno, 205 F.3d at 840.
The courts of appeals, including the Fifth Circuit, and the Board have
consistently ruled that the phrase “relating to” has an expansive meaning,
particularly when it is used with a general term like “counterfeiting”
or “controlled substance,” rather than with a specific statutory reference.Cite as 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
6 To our knowledge, the legislative history of section 101(a)(43)(R) of the Act does not
provide insight regarding the meaning of “commercial bribery.” See Nyakatura v. Att’y
Gen. USA, 256 F. App’x at 465.
Given that bribery of a public official is punishable by imprisonment for up to 15 years, it
may seem somewhat anomalous that Congress would include offenses relating
to commercial bribery, most of which carry lesser penalties, in the aggravated felony
definition, but not this more serious offense. However, we apply the statute as written
See, e.g., Magasouba v. Mukasey, 543 F.3d 13 (1st Cir. 2008); United States
v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. 2008); Bobb v. Att’y Gen.
of U.S., 458 F.3d 213 (3d Cir. 2006); Kamagate v. Ashcroft, 385 F.3d 144
(2d Cir. 2004); Peters v. Ashcroft, 383 F.3d 302 (5th Cir. 2004); Luu-Le
v. INS, 224 F.3d 911 (9th Cir. 2000); Matter of Martinez Espinoza, 25 I&N
Dec. 118 (BIA 2009); Matter of Esqueda, 20 I&N Dec. 850, 860-62 (BIA
1994). We therefore agree that the phrase “relating to,” as it is used in section
101(a)(43)(R) of the Act, encompasses a broad range of conduct.
However, we find that it is not so encompassing as to include convictions
under 18 U.S.C. § 201 for bribery involving public officials for the purpose
of influencing official action. This conclusion is not inconsistent with the
Nyakatura decision relied on by the Immigration Judge, because the statute
involved there, 18 U.S.C. § 666, is aimed at bribery of agents of private
organizations that receive Federal funds. It is not a law designed to protect
the integrity of the “official act” of a “public official,” which is the purpose
of 18 U.S.C. § 201.
We find it significant that Congress did not use the terms “bribery”
or “bribery for commercial advantage” in section 101(a)(43)(R) of the Act.6
We note that in Perrin v. United States, 444 U.S 37 (1979), the Supreme Court
held that the phrase “bribery . . . in violation of the laws of the State
in which committed,” as it is used in 18 U.S.C. § 1952, i.e., the Travel Act,
encompassed a broad range of conduct, including violations of State
commercial bribery statutes. The Court found that Congress intended to use
the generic definition of bribery rather than the narrower common law
definition, which is the bribery of a public official. Id. at 49. The Court’s
decision was issued before section 101(a)(43)(R) of the Act was enacted. See
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
§ 440(e)(8), 110 Stat. 1214, 1277-78. Therefore, we assume that Congress
would have been aware that the use of the unrestricted term “bribery”
would likely encompass a wide range of conduct, including both bribery
of governmental officials and commercial bribery. Nevertheless, Congress
opted to use only the narrower term “commercial bribery”in section
101(a)(43)(R).7Cite as 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
Moreover, other parts of the aggravated felony definition further indicate
that Congress only intended that certain bribery offenses would render an alien
removable. For example, Congress chose to make bribery of a witness
an aggravated felony in section 101(a)(43)(S) of the Act. It also included the
phrase “for commercial advantage” in section 101(a)(43)(K)(ii), which makes
transportation for the purpose of prostitution an aggravated felony if it was
committed for commercial advantage. However, Congress did not choose
to use the phrase “for commercial advantage” in section 101(a)(43)(R), which
arguably would have rendered any bribery committed for that purpose
an aggravated felony. This suggests that Congress purposefully limited the
scope of bribery offenses that could be considered aggravated felonies.
The Immigration Judge found that the respondent’s conviction was
for an aggravated felony under the categorical approach and also, in the
alternative, under the modified categorical approach. See Shepard
v. United States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575
(1990). We disagree with his conclusions.
In Nijhawan v. Holder, 129 S. Ct. 2294, 2300-01 (2009), the Supreme Court
observed that some aggravated felony provisions are generic categories
of offenses for which a categorical approach is used, whereas others include
“circumstance-specific” language for which the categorical approach is not
appropriate. Section 101(a)(43)(R) of the Act is a generic provision to which
the categorical approach applies because it lacks specific circumstances
regarding the way the offender committed the crime on a specific occasion.
Id. at 2298-302 (finding that the “circumstance-specific approach” applied
to section 101(a)(43)(M)(i) of the Act, which relates to fraud involving loss
to the victim of more than $10,000). Applying the categorical approach,
we find that the respondent’s violation of 18 U.S.C. § 201(b)(1)(A) is not
an aggravated felony under section 101(a)(43)(R) the Act because the statute,
on its face, does not define an offense that is sufficiently related to commercial
Furthermore, we disagree with the Immigration Judge’s application of the
modified categorical approach, under which he considered the facts of this
case, as set forth in the indictment, and found that the respondent’s purpose
in committing the offense was to obtain financial gain and therefore was
commercial in nature. Given that the thrust of 18 U.S.C. § 201(b)(1)(A) is the
intent to influence official action, the respondent’s particular purpose does not
render the offense one “relating to” commercial bribery of a private sector
Based on the foregoing, we find that the respondent’s conviction for
bribery of a public official under 18 U.S.C. § 201(b)(1)(A) is not for
an “offense relating to commercial bribery” under section 101(a)(43)(R) of the
Act. Consequently, we reverse the Immigration Judge’s finding that the
respondent is removable under section 237(a)(2)(A)(iii).Cite as 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
8 If the only question in this regard were whether the respondent’s offense was a crime
involving moral turpitude, we would not remand but would simply answer the question
affirmatively, because the Fifth Circuit has so held, and we agree. See Fuentes-Cruz
v. Gonzales, 489 F.3d 724, 726 (5th Cir. 2007); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982);
see also United States ex rel. Sollazzo v. Esperdy, 285 F.2d 341, 342 (2d Cir. 1961) (“There
can be no question but that any crime of bribery involves moral turpitude . . . .”). However,
there appears to be a question whether the offense was committed within the requisite
period after the respondent’s admission, which requires a factual resolution. See 8 C.F.R.
The Immigration Judge did not determine whether the respondent
is removable under section 237(a)(2)(A)(i) of the Act as an alien convicted of a
crime involving moral turpitude. Given the particular factual issues involving
this ground of removability, we find it appropriate to remand the record to the
Immigration Judge to make that determination.8
Accordingly, the respondent’s
appeal will be sustained in part, and the record will be remanded for further
ORDER: The appeal from the Immigration Judge’s finding of removability
under section 237(a)(2)(A)(iii) of the Act is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.