BARRETT

                                                           Interim Decision #3131




                         MATTER OF BARRETT

       In Bond Proceedings Pursuant To 

(d)
                                    A 37213802
                                      -




                     Decided by Board March 2, 1990

  The definition of "drug trafficking crime" in 18 U.S.0 § 924(c)(2) (1988) for
purposes of determining a drug-related "aggravated felony" within the meaning of
section 101(a)(43) of the Immigration and Nationality Act, 

(a)(43)
(1988), includes state convictions for crimes analogous to offenses under the Controlled
Substances Act, 

 et seq. (1988), the Controlled Substances Import and
Export Act, 

 et seq. (1988), or the Maritime Drug Law Enforcement Act,
46 U.S.0 App. § 1901 et seq. (1988).
ON BEHALF OF RESPONDENT:                            ON BEHALF OF SERVICE:
 Anna Marie Gallagher, Esquire                        George W. Maugans
 301 I Street, N.W.                                   Acting Appellate
 Washington, DC 20001                                 Counsel

BY: Milhollan, Chairman; Dunne and Morris, Board Members. Dissenting Opinion:
     Vacca and Heilman, Board Members.


   The Immigration and Naturalization Service has appealed from the
immigration judge's decision dated September 5, 1989, granting the
respondent's request for a bond redetermination hearing. Oral argument before this Board was held on November 7, 1989. The appeal
will be sustained, and the record will be remanded to the immigration
judge.
   The respondent is a 20-year-old native and citizen of Jamaica. An
Order to Show Cause, Notice of Hearing, and Warrant for Arrest of
Alien (Form I 122S) dated August 8, 1989, alleges that the respondent
                 -


was admitted to the United States as a lawful permanent resident on
September 12, 1980, at Miami, Florida.'
   On January 19, 1989, the respondent was convicted in the District
Court of Maryland, Prince George's County, of the following offenses:
(1) two counts of possession of a controlled dangerous substance (one
count for marihuana and one count for phencyclidine) in sufficient
quantity to reasonably indicate under all circumstances an intent to

   This supersedes the original Order to Show Cause dated March 20, 1989.

                                          171
Interim Decision #3131

manufacture, distribute, or dispense in violation of article 27, section
286 of the Annotated Code of Maryland; (2) two counts of possession
of a controlled dangerous substance (one count for marihuana and one
count for phencyclidine) in violation of article 27, section 287 of the
Annotated Code of Maryland; and (3) possession with intent to use
drug paraphernalia to contain a controlled substance in violation of
article 27, section 287A of the Annotated Code of Maryland_ He was
sentenced to 3 years' probation.
   The respondent is charged with deportability under section
241(a)(4)(B) of the Immigration and Nationality Act, 

(a)(4)(B) (1988), for conviction of an "aggravated felony," and
under section 241(a)(11) of the Act, for conviction of a controlled
substance violation. The Service determined that the respondent was
to be continued in custody without bond pursuant to section 242(a)(2)
of the Act, 8 U.S.0 § 1252(a)(2) (1988), which precludes the release of
an alien convicted of an "aggravated felony" as defined in section
101(a)(43) of the Act, 

(a)(43) (1988). On the reverse
side of his Order to Show Cause the respondent signed a request for
redetermination of his custody status by the immigration judge. In a
decision dated September 5, 1989, the immigration judge found that
the respondent had not been convicted of an aggravated felony and
therefore was not barred from release from Service detention under
section 242(a)(2) of the Act. He granted the respondent's request for a
redetermination hearing. On September 12, 1989, the immigration
judge conducted the redetermination hearing and set bond at $5,000,
which the respondent posted. This appeal by the Service followed.
   The Immigration and Nationality Act was amended by the Anti-Drug Abuse Act of 1988, Pub. L. No. 100 - 690, 

(effective Nov. 18, 1988), to include certain provisions relating to
aliens convicted of an "aggravated felony."
   Section 241(a)(4)(3) of the Act, added by section 7344 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4470-71, renders deportable an
alien who is "convicted of an aggravated felony at any time after
entry."
     Section 242(a)(2) of the Act, added by section 7343(a) of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4470, states:
     The Attorney General shall take into custody any alien convicted of an aggravated
     felony upon completion of the alien's sentence for such conviction. Notwithstanding
     subsection (a),2 the Attorney General shall not release such felon from custody.

     Section 101(a)(43) of the Act, added by section 7342 of the Anti-
 2   This reference should be to "paragraph (1)" rather than to "subsection (a)."
                                           177
                                                              Interim Decision #3131

Drug Abuse Act of 1988, 102 Stat. at 4469-70, defines the term
"aggravated felony" as follows:
   The term "aggravated felony" means murder, any drug trafficking crime as defined
   in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any
   firearms or destructive devices as defined in, section 921 of such title, or any attempt
   or conspiracy to commit any such act, committed within the United States.

   Title 18 section 924(c)(2) of the United States Code as amended by
section 6212 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4360,
defines the term "drug trafficking crime":
   For purposes of this subsection, the term "drug trafficking crime" means any felony
   punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the
   Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the
   Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).

   Thus, with respect to drag-related offenses, an "aggravated felony"
is "any drug trafficking crime," i.e., "any felony punishable under" the
three statutes enumerated in 

(c)(2) (1988). 3
   On appeal the Service contends that the definition of "drug
trafficking crime" in 

(c)(2) encompasses state as well
as federal crimes. The Service argues that a state law conviction is
"punishable" within the meaning of 

(c)(2), provided
"the elements of the crime resulting in the conviction in state court
would have rendered the defendant capable or liable to punishment
under one of the three statutes enumerated" in section 924(c)(2).
Specifically, the Service contends that the elements of the respondent's
state law convictions for "possession of a controlled dangerous
substance in sufficient quantity to reasonably indicate under all
circumstances an intent to manufacture, distribute, or dispense" in
violation of article 27, section 286 of the Annotated Code of Maryland
satisfy the elements for a conviction under 

(a)(1)
(1988) of the Controlled Substances Act and are therefore "aggravated
felonies."4 Accordingly, the Service contends, the immigration judge
  3For further amendments of the Immigration and Nationality Act by the Anti-Drug
Abuse Act of 1988 concerning the term "aggravated felony" see 2 C. Gordon & S.
Mailman, Irnmi,gration Law and Procedure § 4.17, at 4-156.1 (rev. ed 1989).
  4 The Service does not allege that the respondent's convictions for possession of a
controlled substance and possession with intent to use drug paraphernalia to contain a
controlled substance under article 27, sections 287 and 287A, of the Annotated Code of
Maryland are aggravated felonies.
  Title 21 section 841(a)(1) of the United States Code provides in part:
    Except as authorized by this subchapter, it shall be unlawful for any person
  knowingly or intentionally—
    (1) to manufacture, distribute, or dispense, or possess with intent to manufacture,
  distribute, or dispense, a controlled substance ....

                                           173
Interim Decision #3131

erred in finding the respondent eligible for release from Service
custody under section 242(a)(2) of the Act. 5
   In all cases involving statutory construction, the starting point must
be the language employed by Congress, and it is assumed that the
legislative purpose is expressed by the ordinary meaning of the words
used. INS v. Cardoza-Fonseca, 480 U.S 421, 431 (1987); INS v.
Phinpathya, 

 (1984). 6
   The resolution of the question whether state crimes are included in
the definition of "drug trafficking crime" depends on whether the
phrase "punishable under" is properly read as limiting the definition
to "convictions under" the federal laws listed in 

(c)(2),
or whether the definition is satisfied by proving a conviction that
includes all the elements of an offense for which an alien "could be
convicted and punished" under the cited federal laws.
   We find no prior conviction requirement in the term "punishable
under" in 

(c)(2). To the contrary, Congress's choice of
the term "punishable under" plainly avoids such a narrow interpretation.
   In a 1985 case, Sedima, S.P.R.L. v. Imrex Co., Inc., 

,
the Supreme Court interpreted the term "punishable under" in a
statutory scheme similar to the one before us. The Racketeer
Influenced and Corrupt Organizations statute ("RICO"), enacted as
Title IX of the Organized Crime Control Act of 1970, Pub. L. No. 91-
452, § 901(a), 

, 941-48, codified at 

(1982), defines "racketeering activity" to mean, in part, "any offense
involving ... the felonious manufacture, importation, receiving,
concealment, buying, selling, or otherwise dealing in narcotic or other
dangerous drugs, punishable under any law of the United States." 

(1)(D) (emphasis added). At issue in Sedima was
whether a civil action to recover treble damages under 

(c) could proceed only against a defendant who had already
been convicted of a predicate act of racketeering activity or a RICO
 5 It is unclear from the Service's Notice of Appeal to the Board of Immigration
Appeals (Form EOIR-26) and brief on appeal whether, in addition to the bond appeal,
the Service is attempting to challenge the immigration judge's preliminary finding in
deportation proceedings with respect to the respondent's deportability under section
241(a)(4)(B) of the Act. The Service states in its Notice of Appeal and brief that the
immigration judge erred in finding that the respondent was not convicted of an
aggravated felony "under section 241(a)(4)(B) of the Act." Regardless, an appeal
concerning the deportation charge at present would be interlocutory in nature and will
not be addressed. See Matter of Ruiz-Campuuuto, 

 (BIA 1979); Matter
of Ku, 15 I&N Mc. 712 (BIA 1976); Matter of Sacco, 

 (BIA 1974).
Section 241(a)(4)(B) of the Act is not directly in issue in this appeal.
  6 The Anti-Drug Abuse Act of 1988 was submitted without a Senate or House Report.
See 1988 U.S.CC.A.N. 5937.

                                         174
                                                            Interim Decision #3131

violation. In reversing the United States Court of Appeals for the
Second Circuit, the Supreme. Court found no prior conviction
requirement in the definition of "racketeering activity." The Court
stated:
     The language of RICO gives no obvious indication that a civil action can proceed
  only after a criminal conviction. The word "conviction" does not appear in any
  relevant portion of the statute. To the contrary, the predicate acts involve conduct
  that is "chargeable" or "indictable," and "offense[s]" that are "punishable," under
  various criminal statutes, As defined in the statute, racketeering activity consists not
  of acts for which the defendant has been convicted, but of acts for which he could be.
Sedima, S.P.R.L. v. Imrex Co., Inc., supra, at 488 (citations omitted).
   In sum, the Supreme Court in Sedima determined that the phrase
"punishable under any law of the United States" did not mean
"convicted under" these laws but instead referred to conduct for which
one "could be convicted" under these laws. Similarly, we do not limit
the phrase "punishable under" to mean "convicted under" the
enumerated statutes in 

(c)(2) in the case before us. If
Congress had wanted only convictions under the cited federal statutes
to serve as aggravated felonies with respect to drug offenses, it could
have said so quite simply. Instead. Congress referred to felonies
"punishable under" not "convictions obtained under" those statutes.
As such, we find that the definition of "drug trafficking crime" at I
U.S.C. § 924(c)(2), as incorporated into the Immigration and. Nationality Act by section 101(a)(43) of the Act, includes a state conviction
sufficiently analogous to a felony offense under the Controlled
Substances Act, the Controlled Substances Import and Export Act, or
the Maritime Drug Law Enforcement Act.
   This more expansive reading of the phrase "punishable under" is
consistent with the spirit and purpose of the Anti -Drug Abuse Act of
1988. This act is one of several comprehensive pieces of legislation in
recent years designed to stiffen the penalties for drug-related offenses
"in an effort to combat a national drug problem of epidemic
proportion." United States v. Property Known as 6109 Grubb Road,

 (3d Cir. 1989) (Greenberg, J., dissenting). In these
acts "Congress has sent out a clear message that narcotics offenses are
to be dealt with harshly." 

 In the federally controlled area of
regulating the conduct of aliens in the United States, it is unreasonable
to assume that Congress, in choosing the definition of "drug trafficking crime" at I8 U.S.C. § 924(c)(2), sought to differentiate between
aliens convicted of similar drug-related offenses on the basis of
whether the conviction was accomplished under state or federal law.
   Inclusion of state crimes in the definition of "drug trafficking
crime" is also consistent with the Immigration and Nationality Act
read as a whole. Congress chose to append the new ground of
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Interim Decision #3131

deportability relating to aggravated felons to section 241(a)(4) of the
Act which has always been read to include state crimes. Absent a clear
intent to depart from the prior undisputed inclusion of state crimes
under section 241(a)(4), we find no reason to believe that Congress, in
adding the aggravated felony provision to this section, meant to
exclude state drug-related crimes when it chose the definition of "drug
trafficking crime" at 

(c)(2).
   Furthermore, the Immigration and Nationality Act generally does
not attach different treatment to state and federal drug offenses with
respect to excludability, deportability, or the negative effect of a drug
conviction on various forms of relief from exclusion or deportation.
See sections 212(a)(23) and 241(a)(11) of the Act, 

 82(a)(23) and 1251(a)(11) (1988); Matter of Hernandez Ponce, 19        -


I&N Dec. 613 (BIA 1988). Limiting the definition of "aggravated
felony" to certain federal drug-related offenses would discriminate
between state and federal drug crimes for the purpose of bond,
deportability, and voluntary departure in a way previously unknown
in the Act.'
   We also find merit to the Service's argument that limiting the
definition of "drug trafficking crime" to convictions under the cited
                                       ,


federal statutes would render largely meaningless, as far as state
involvement, section 242A(a) of the Act, 8 U.S.C. § 1252a(a) (1988),
relating to special deportation proceedings for aliens convicted of
aggravated felonies, and section 242(a)(3)(A), concerning the implementation of a program to train Service officers and to provide
federal, state, and local access to the investigative resources, of the
Service for the purpose of identifying aliens arrested or charged for
aggravated felonies.
   Section 242A(a) of the Immigration and Nationality Act, added by
section 7347(a) of the Anti-Drug Abuse Act of 1988,102 Stat. at 4471,
states in part:
   The Attorney General shall provide for the availability of special deportation
   proceedings at certain Federal, State, and local correctional facilities for aliens
   convicted of aggravated felonies ....

  7 As noted by the Service, one result of reading the definition "drug trafficking crime,"
and therefore of "aggravated felony," as excluding application to state drug-related
crimes is that aliens convicted of drug-related offenses under state law might be eligible
for voluntary departure while aliens convicted of offenses under the Controlled
Substances Act, the. Controlled Substances Import and Export Act, or the Maritime Drug
Law Enforcement Act would be ineligible. Section 244(e)(2) of the Act, 

(e)(2) (1988), added by section 7343(b)(2) of the Anti-Drug Abuse Act of 1988,
102 Stat. at 4470, provides that "[t]he authority contained in paragraph (1) [relating to
voluntary departure] shall not apply to any alien who is deportable because of a
conviction for an aggravated felony."

                                           176
                                                            Interim Decision #3131

  Section 242(a)(3)(A) of the Immigration and Nationality Act, added
by section 7343(a) of the Anti-Drug Abuse Act of 1988, 102 Stat. at
4470, states in part:
     The Attorney General shall devise and implement a system-
      (i) to make available, daily (on a 24-hour basis), to Federal, State, and local
  authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens;
     (ii) to designate and train officers and employees of the Service within each
  district to serve as a liaison to Federal, State, and local law enforcement and
  correctional agencies and courts with respect to the arrest, conviction, and release of
  any alien charged with an aggravated felony ....
    In the context of an "Anti-Drug Abuse" Act, the principal purpose
of which is to "prevent the manufacturing, distribution, and use of
illegal drugs," we are unpersuaded that Congress did not intend the
state and local involvement of these provisions to extend to state drug
offenses.
    Finally, we note that while analogizing state drug trafficking
provisions to the federal acts listed in 

(c)(2) is not
unproblematic, a similar objection raised by the lower court in Sedima
was rejected by the Supreme Court. See Sedima, S.P.R.L. v. Imrex Co.,
Inc., supra, at 490 (Supreme Court stating that the lower court "was of
the view that its narrow construction of the statute was essential to
avoid intolerable practical consequences"). Indeed, the "practical
consequences" here are less problematic than those contemplated in
Sedima. In the aggravated felony cases there is at least a state
conviction. The aggravated felony bond provision at section 242(a)(2)
of the Act and the aggravated felony ground of deportation at section
241(a)(4)(B) both refer to aliens "convicted of an aggravated felony."
The anticipated analogy between state statutes and offenses under the
cited federal statutes will thus be a matter of law. In the "RICO"
scheme at issue in Sedima, no prior conviction of any type is required
of the predicate offense, and a court can therefore be called to weigh
the facts to determine whether the conduct amounts to an "offense"
"punishable under" any law of the United States. Accordingly, the
type of analysis to be performed in determining whether a state drug-related crime is a "drug trafficking crime" is considerably less
involved than the type of analysis approved by the Court in Sedima.
Moreover, there is already a precedent in immigration proceedings
similar to the type of analogy called for here. Matter of McNaughton,

 (BIA 1978) (analysis to determine whether
foreign conviction is for conduct considered criminal under United
States law).
   We conclude that the definition of "drug trafficking crime" for
purposes of determining drug-related "aggravated felonies" within the
                                         177
Interim Decisior #3131

meaning of the Immigration and Nationality Act encompasses state
convictions for crimes analogous to offenses under the Controlled
Substances Act the Controlled Substances. Import and Export Act, or
the Maritime I 'rug Law Enforcement Act. We therefore reverse and
remand to the immigration judge to determine whether the respondent's convictir n for "possession of a controlled dangerous substance
in sufficient qu ntity to reasonably indicate under all circumstances an
intent to manes acture, distribute, or dispense, a controlled dangerous
substance" in iolation of article 27, section 286 of the Annotated
Code of Maryk ad includes all the elements necessary for a conviction
under 

(a)(1), as argued by the Service.
   ORDER:          The appeal is sustained, and the record is remanded
to the ircunigrr ion judge for further proceedings consistent with the
foregoing deci: on.

DISSENTING OPINION: Fred W. Vacca, Board Member
   I respectful!' dissent.
   I believe tha the majority interpretation including state convictions
within the sco )e of the term "drug trafficking crime" at 

(c)(2) (lc 38), and therefore within the term "aggravated felony"
as defined in 2ction 101(a)(43) of the Immigration and Nationality
Act, 

(a)(43) (1988), is unwarranted based on the
language of tt statute and its context.
   The majori> y correctly states that proper statutory construction
must begin wit 1 the words used by Congress. INS v. Cardoza-Fonseca,
480 U.S 421, 4 11 (1987); INS v. Phinpathya, 

 (1984).
However, I ca 'not find, that this first step has been satisfied by the
majority's relic nee on Sedima, S.P.R.L. v. Imrex Co., Inc., 

 (1985). S dima does not involve 

(c)(2) or the
Immigration a id Nationality Act. Nor is the language in the "RICO"
provision quo ed in part by the majority, 

(1)(D)
(1982), identk Al to the language of 

(c)(2) at issue in
the case befc -e us. See The Racketeer Influenced and Corrupt
Organizations statute ("RICO"), enacted as Title IX of the Organized
Crime Controi Act of 1970, 

(a), 

,
941-48, codifit d at 

 (1982); Sedima, S.P.R.L. v.
Imrex Co., Ir supra, at 482 n.3. The key word for the court of
               '.,


appeals and ti Supreme Court in the "RICO" phrase quoted by the
majority was "offense," not the phrase "punishable under." See
Sedima, S.P.R L. v. Imrex Co., Inc., 

 (1984). Title 18
section 924(c: 2) of the United States Code does not speak of an
"offense," but 3f "any felony" punishable under the designated federal
statutes. The ( ourt in Sedima did not directly analyze the meaning of

                                   178
                                                            Interim Decision #3131

the phrase "any felony punishable under" or even of the phrase
"punishable under." The Court's interpretation of the statutes before
it, and its implication for the phrase "punishable under" in 

, was as much based on the meaning of the word "violation" in

(c), as on the presence of the words "chargeable" and
"indictable" in 

(1), and on pertinent legislative
history, none of which is present here. In sum, reference to Sedima in
no way disposes of the requirement to examine the language of the
statute at issue before us. Absent that examination, the majority's
further arguments based on the reasonableness of their interpretation
of the definition of "drug trafficking crime" at 

(c)(2)
are without weight.
    In turning to the language at 

(c)(2), one notes that
there is no reference to state law, and the only statutes enumerated are
federal. Thus, the Service's claim that the definition of "drug
trafficking crime" refers to state as well as federal law is based on the
"plain meaning" of the phrase "any felony punishable under." Citing
Black's Law Dictionary, the Service states that "any felony punishable" in section 924(c)(2) is any felony "'capable' or 'liable' of being
punished under" the Controlled Substances Act, the Controlled
Substances Import and Export Act, or the Maritime Drug Law
Enforcement Act. Black's Law Dictionary 1110 (5th ed. 1979). The
Service concludes that a state law conviction is "punishable" within
the meaning of 

(c)(2) provided "the elements of the
crime resulting in the conviction in state court would have rendered
the defendant capable or liable to punishment under one of the three
statutes enumerated" in section 924(c)(2). Specifically, the Service
contends that the elements of the respondent's state law convictions
under article 27, section 286 of the Annotated Code of Maryland
satisfy the elements for a conviction under 

(a)(1)
(1988) of the Controlled Substances Act. Therefore, the Service
concludes, the respondent has been convicted of an "aggravated
felony" and is ineligible to be released from custody under section
242(a)(2) of the Act, 

(a)(2) (1988).
    The Service reads too much into the "plain meaning" of the word
"punishable." Using the reference cited by the Service, Black's Law
Dictionary, one finds the word "punishment" defined as
   Wily fine, penalty, or confinement inflicted upon a person by the authority of the law
   and the judgment and sentence of a court, for some crime or offense committed by
   him, or for his omission of a duty enjoined by law.

Black's Law Dictionary, supra, at 1110. The term "punishable" simply
refers to the offense which "may be punished" or the offender who is
"liable to punishment" by the judgment and sentence of the court. See

                                          179
Interim Decision #3131

People v. Superior Court of the City and County of San Francisco, 

, 

 (1931), and cases cited therein;
Black's Law Dictionary, supra, at 1110.
  Based on these definitions, the use of "punishable" in 

(c)(2) is subject to a much more direct interpretation than that
suggested by the Service: Those subject to imposition pf "any fine,
penalty, or imprisonment" under an act enumerated in section
924(c)(2) arc those convicted under that act. The respondent has not
been charged or convicted under any of the three acts listed in section
924(c)(2). The Service contends that the respondent's state court
conviction should be deemed "punishable under" 

(a)(1) (Controlled Substances Act). The respondent has not been
convicted under section 841(a)(1) and is therefore not subject to the
attendant penalties under section 841(b).' The comparison between
state and federal law urged by the Service is not indicated by the plain
meaning of the phrase "any felony punishable under" in 

(c)(2).
  Moreover, even if it were determined that the use of "punishable
under" in 

(c)(2) is ambiguous, such ambiguity in a
criminal provision such as 

(c)(2) must be strictly
construed against the Government. See Bell v. United States, 

 (1955); United States v. Cruz, 

 (11th Cir.
1986); United States v. One Heckler-Koch Rifle, 

 (7th
Cir. 1980). A longstanding parallel provision exists in deportation
proceedings concerning construing ambiguities in deportation statutes
in favor of the alien. See INS v. Cardoza-Fonseca, supra, at 449; INS v.
Errico, 

 (1966); Costello v. INS, 

(1964).
   The majority opinion also ignores the statutory context of 

(c)(2). Section 924(c)(2) was originally designed to serve as a
definition for "drug trafficking crime" only in conjunction with 

(c)(1). Section 924(c)(1) is an enhanced penalty provision
for "crimes of violence" and "drug trafficking crimes" committed with
the use of a firearm. Section 924(c)(1) reads:
        Whoever, during and in relation to any crime of violence or drug trafficking crime
    ... for which he may be prosecuted in a court of the United States, uses or carries a
   firearm, shall, in addition to the punishment provided for such crime of violence or
   drug trafficking crime, be sentenced to imprisonment for five years ....
  Thus, the term "drug trafficking crime" comes to the Immigration
and Nationality Act, by reference in section 101(a)(43) of the Act, with
   A prior state law conviction may render a defendant subject to stricter penalties
under the second offender provisions of 

(6). Of course, application of
these second offender provisions still requires a conviction under section 841(a).

                                           180
                                                          Interim Decision #3131

its own history and in an amended form presumably responsive to that
history.
    Section 924(c)(I) suggests that the term "punishable under" in
section 924(c)(2) may be read as referring to the potential for
conviction under the three federal acts listed in 924(c)(2), and not
simply the potential for imposition of a fine, penalty, or imprisonment
following conviction as is suggested by reliance solely on the plain
meaning of the word "punishable." Section 924(c)(1) applies to
"[w]hoever, during and in relation to any ... drug trafficking crime
 ... for which he may be prosecuted in a court of the United States
      " (Emphasis added.) The phrase "may be prosecuted" plainly
indicates a stage prior to conviction. Cf. United States v. James, 

 (4th Cir. 1987) (defendant charged under section 924(c)(1) at
the same time he is charged with the predicate drug trafficking
offense).
   Technically, federal prosecution could be brought under one of the
three federal acts listed in section 924(c)(2) based on conduct for
which an individual was convicted under state law. The double
jeopardy clause prohibits only successive prosecutions by the same
"sovereign." Health v. Alabama, 

 (1985); United States v.
 Wheeler, 

 (1978); Bartkus v. Illinois, 

 (1959).
However, the question remains whether a state court conviction alone
is sufficient to render the offense "punishable under" the Controlled
Substances Act, the Controlled Substances Import and Export Act, or
the Maritime Drug Law Enforcement Act within the meaning of
section 924(c)(2). I find that it is not.
   A federal prosecution for the felony offenses at stake in section
924(c)(2) requires a grand jury indictment. The fifth amendment to the
United States Constitution requires that all prosecutions for infamous
federal crimes (i.e., federal offenses carrying a term of imprisonment
in excess of 1 year), unlike state crimes, be commenced by grand jury
indictment. U.S. Const. amend. V; Branzburg v. Hayes, 

 (1972); Fed. R. Crim. P. 7(a).2 I find no support for the
proposition that sections 924(c)(1) and (2) address prosecutions for
offenses subject to possible conviction under the three acts enumerated in 924(c)(2) where federal proceedings have not even commenced.
   I reemphasize that section 924(c)(2) does not mention state crimes.

  zA conviction for unlawful possession of phencyclidine with intent to manufacture,
distribute, or dispense under 

(a)(1) (Controlled Substances Act)—the
provision argued by the Service to be analogous to the respondent's convictions under
article 27, section 286 of the Annotated Maryland Code—is punishable under section
841(b)(1)(D) by a term of imprisonment of not more than 5 years. See 

(a)(I), (b)(1)(D).

                                        1R1
Interim Decision #3131

A review of the Anti-Drug Abuse Act of 1988, 

 Stat. 4181 (effective Nov. 18, 1988), evidences that where
Congress intended to refer to state crimes it did so explicitly. "[W]here
Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion." INS v. Cardoza-Fonseca, supra, at 432
(quoting Russello v. United States, 

 (1983) (quoting
United States v. Wong Kim Bo, 

 (5th Cir. 1972)).
One example is section 6211 of the Anti-Drug Abuse Act of 1988, 102
Stat. at 4359, which amends subsection (f) of 18 § 924, the
section in issue before us. Section 924(f) was amended to read:
      (f) Whoever, with the intent to engage in conduct which ...
         (2) is punishable under the Controlled Substances Act (21 U.S.C. 802 et seq.),
      the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the
      Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.),
         (3) violates any State law relating to any controlled substance (as defined in
      section 1112(b) of the Controlled Substances Act (21 U.S.C. 802(0)))
  travels from any State or foreign country into any other State and acquires, transfers,
  or attempts to acquire or transfer, a firearm in such other State in furtherance of such
  purpose, shall be imprisoned not more than 10 years, fined in accordance with this
  title, or both.
(Emphasis added.); see also Anti-Drug Abuse Act of 1988, § 4603, 102
Stat. at 4288 ("Denial of Passports to Certain Convicted Drug
Traffickers").
   Furthermore, in considering the language of 

(c)(2)
prior to the 1988 amendment, I do not find that the purpose of
including the phrase "any felony punishable under" was to indicate
application to state drug-related convictions. Prior to amendment by
the Anti-Drug Abuse Act of 1988, 

(c)(2) expressly
stated that one element of a "drug trafficking crime" was that it be a
"violation of Federal law." The provision read:
   For purposes of this subsection, the term "drug trafficking crime" means any felony
   violation of Federal law involving the distribution, manufacture, or importation of
   any controlled substance (as defined in section 1U2 of the Controlled Substances Act
   (21 U.S.C. 802)).

(c)(2), as amended by the Firearms Owners' Protection Act, 

, 

, 457 (1986). The
Service contends that Congress, in deleting the specific reference to
federal law, clearly intended the statute to apply to state law. I find this
contention is without merit
   Congress is presumed to know the prior construction of a statute.
1 A N. Singer, Sutherland Statutory Construction §§ 22.33, 22.35 (4th
ed. 1985); Matter of Castro, 

 (BIA 1988). By
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changing the statutory language of 

(c)(2) Congress
must have intended a different result. I find that the language merely
altered the method of defining which federal crimes are drug
trafficking crimes and does not expand the definition to include state
offenses.
   Under section 924(c)(2) prior to the 1988 amendment, a drug
trafficking crime was described as an offense which met four general
conditions: it was (1) a felony (2) violation of federal law (3)
"involving the distribution, manufacture, or importation" of (4) any
controlled substance (as defined in section 102 of the Controlled
Substances Act (

)). This definition left to the courts to
determine which crimes were crimes "involving the distribution,
manufacture, or importation" of a controlled substance. See, e.g.,
United States v. Henry, 

 (6th Cir. 1989); United
States v. Torres, 

 (3d Cir. 1988); United States v.
Robinson, 

 (5th Cir. 1988); United States v. Matra,

 (8th Cir. 1988); United States v. 

.
   Instead of attempting to broadly describe the types of federal
offenses to be considered drug trafficking crimes, the amended statute
designates those offenses as the crimes currently punished under the
Controlled Substances Act, the Controlled Substances Import and
Export Act, and the Maritime Drug Law Enforcement Act. See United
States v. 

 at 943 & n.4. As these acts are federal, the need
for a specific statement defining drug trafficking crimes as violations
of federal law is unnecessary.
   Therefore, I conclude based on the language employed by Congress
in 

(c)(2), and the statutory context of that provision,
that a state court conviction for a drug related offense does not bring
                                         -


that offense within the definition of "drug trafficking crime" in 

(c)(2).
   The Service argues that this interpretation would bring absurd
results and render void other parts of the Immigration and Nationality
Act. These contentions need be addressed only briefly.
   The Service contends that this conclusion nullifies the references to
state law in sections 242A(a) and 242(a)(3)(A) of the Act. The Service's
contention fails to consider that aggravated felonies include more than
just drug trafficking crimes. Murder, for example, is an aggravated
felony under section 101(a)(43) of the Act. Section 101(a)(43) does not
limit "murder" to an offense under federal law. The references to state
law in sections 242A(a) and 242(a)(3)(A) of the Act are not nullified in
that they continue to operate with respect to aliens who have been
convicted of murder under state law.
   The Service also contends that one result of this interpretation is
that aliens convicted of drug-related offenses under state law might be
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eligible for voluntary departure while aliens convicted of offenses
under the Controlled Substances Act, the Controlled Substances
Import and Export Act, or the Maritime Drug Law Enforcement Act
would be ineligible. I can only conclude that Congress approved this
result where the language employed in 

(c)(2) and its
statutory context establishes that a state conviction for a drug-related
offense is not encompassed by the definition of "drug trafficking
crime." Furthermore, this result would occur only in exceptional
circumstances. Voluntary departure is ordinarily unavailable to any
alien who is within the provision of section 241(a)(11) because of his
conviction for a drug-related offense. See section 244(e)(1) of the Act,

(e)(1) (1988). Thus, the distinction urged by the
Service is largely irrelevant.
   As I find that the respondent's state court convictions under article
27, section 286 of the Annotated Maryland Code are not drug
trafficking crimes as defined in 

(c)(2), I conclude they
are not aggravated felonies within the meaning of section 101(a)(43) of
the Immigration and Nationality Act. Therefore, the immigration
judge did not err under section 242(a)(2) of the Act in granting the
respondent's request for a redetermination hearing.. Accordingly, I
would dismiss the appeal.
DISSENTING OPINION: Michael J. Heilman, Board Member
   I concur in the foregoing dissent.