FORTIZ

                                                                      Interim Decision #3340


Interim Decision #3340



         In re Hugo Antonio FORTIZ-Zelaya, Respondent

                             File A90 681 195 - Arlington

                                Decided March 18, 1998

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) An alien who is deportable under section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 

(a)(2)(A)(ii) (1994), as an alien convicted of two or more crimes
  involving moral turpitude, and whose deportation proceedings were initiated prior to the
  April 24, 1996, enactment date of the Antiterrorism and Effective Death Penalty Act of
  1996, 

 Stat. 1214 (“AEDPA”), is not ineligible for a waiver under
  section 212(c) of the Act (to be codified at 

(c)) unless more than one conviction resulted in a sentence or confinement of 1 year or longer pursuant to the former version
  of section 241(a)(2)(A)(i)(II), prior to its amendment by the AEDPA.
(2) For an alien to be barred from eligibility for a waiver under section 212(c) of the Act as one
  who “is deportable” by reason of having committed a criminal offense covered by one of the
  criminal deportation grounds enumerated in the statute, he or she must have been charged
  with, and found deportable on, such grounds.

FOR RESPONDENT: Jose Pertierra, Esquire, Washington, D.C.

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Scott M. Rosen, Appellate Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HURWITZ, ROSENBERG, MATHON, and GUENDELSBERGER, Board
Members. Concurring Opinion: FILPPU, Board Member, joined by HOLMES and
VILLAGELIU, Board Members. Concurring and Dissenting Opinion: JONES, Board Member, joined by COLE, Board Member.

SCHMIDT, Chairman:

   The respondent has timely appealed from the Immigration Judge’s decision dated July 26, 1995, finding him deportable under section
241(a)(2)(A)(ii) of the Immigration and Nationality Act, 

(a)(2)(A)(ii) (1994), based on multiple criminal convictions, and ineligible for waivers of inadmissibility under sections 212(c) and (h) of the Act,

(c) and (h) (1994). The record will be remanded to the



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Immigration Judge.1 The respondent’s request for oral argument before the
Board is denied. 

(e) (1997).

                                        I. ISSUE
   The issue in this case is whether amendments to sections 241(a)(2)(A)(i)
and 212(c) of the Act, made by the Antiterrorism and Effective Death Penalty
Act of 1996, 

 Stat. 1214 (enacted Apr. 24, 1996)
(“AEDPA”), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546
(enacted Sept. 30, 1996) (“IIRIRA”), render the respondent ineligible for
section 212(c) relief.
   We note that section 212(c) of the Act has been amended by section
440(d) of the AEDPA, 110 Stat. at 1277, as amended by IIRIRA § 306(d),
110 Stat. at 3009-612, in part, to preclude relief for any alien who is
deportable under section 241(a)(2)(A)(ii) based on convictions for multiple
criminal offenses for which both predicate offenses are crimes involving
moral turpitude as defined in section 241(a)(2)(A)(i). Section 241(a)(2)(A)(i)
has also been amended by the AEDPA. AEDPA § 435(a), 110 Stat. at 1274.2
We currently face the question of which version of the definition of a crime
involving moral turpitude found in section 241(a)(2)(A)(i) should be applied
in determining section 212(c) eligibility where the respondent is deportable
pursuant to section 241(a)(2)(A)(ii).

                           II. SUMMARY OF FACTS
    The respondent, a native and citizen of El Salvador, originally entered the
United States in 1976 on a tourist visa. On October 26, 1989, he adjusted his
status to that of a lawful permanent resident. On June 3, 1992, he was convicted in the General District Court for the State of Virginia, Fairfax County,
of the offense of receiving stolen property, knowing such to be stolen, in violation of section 18.2-108 of the Virginia Code. He was sentenced to a term of
90 days’ imprisonment, 88 days of which were suspended. The maximum
sentence of imprisonment for this offense is 12 months. On April 5, 1994, he
was convicted in the Circuit Court for the State of Virginia, Fairfax County,
of the offense of malicious burning (of an automobile) in violation of section
18.2-81 of the Virginia Code. He was sentenced to a term of 4 years’ imprisonment, 3 years of which were suspended.
    On September 19, 1994, the Immigration and Naturalization Service
issued an Order to Show Cause and Notice of Hearing (Form I-221),
  1 Regarding the respondent’s motion to allow late filing of an appellate brief, we have

considered the explanations contained in same and accept the respondent’s brief.
  2 Section 241(a)(2)(A)(i)(II) of the Act was revised and redesignated as section

237(a)(2)(A)(i)(II) of the Act by section 305(a)(2) of the IIRIRA, 110 Stat. at 3009-598, but
that amendment does not apply to proceedings initiated prior to April 1, 1997.

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charging the respondent with deportability pursuant to section
241(a)(2)(A)(ii), as an alien who has been convicted of two crimes involving
moral turpitude, not arising out of a single scheme of criminal misconduct.
At a hearing before an Immigration Judge on July 26, 1995, the respondent
admitted the allegations contained in the Order to Show Cause and conceded
deportability. The respondent sought to apply for waivers of inadmissibility
pursuant to sections 212(h) and 212(c) of the Act.
    The Immigration Judge found that the respondent was not eligible for a
section 212(h) waiver, as he could not establish hardship to a United States
citizen. Furthermore, the Immigration Judge found that the respondent was
not eligible for a section 212(c) waiver because he had not been a lawful permanent resident for 7 years at the time of the hearing.

                                     III. ANALYSIS
   During the pendency of his appeal, the respondent accrued the requisite 7
years for consideration of a section 212(c) waiver. Thus, we turn now to the
respondent’s current eligibility for relief under section 212(c). Because we
conclude that this case should be remanded, we need not address the additional arguments raised by the respondent on appeal.3

                    A. Statutory Changes to Section 212(c)
  Following the respondent’s hearing, the Act was amended to limit the
availability of a waiver under section 212(c). The AEDPA created a bar to
   3 In its amended supplemental brief, the Service argues that the respondent’s conviction for

malicious burning bars him from applying for section 212(c) relief because that crime is an
aggravated felony. Section 440(d) of the AEDPA eliminated the availability of section 212(c)
relief to an alien who “is deportable by reason of having committed any criminal offense
covered in section 241(a)(2)(A)(iii)” of the Act, which is the aggravated felony deportation
provision. AEDPA § 440(d), as amended by IIRIRA § 306(d). We note that the respondent was
not charged with deportability under section 241(a)(2)(A)(iii) of the Act as an aggravated felon,
but rather as an alien who has committed two crimes involving moral turpitude pursuant to
section 241(a)(2)(A)(ii). We find that in order for an alien to qualify as one who “is deportable”
under the amendment to section 212(c), he or she must be charged with, and found deportable
on, the requisite ground of deportability. Cf. Matter of Gonzales-Camarillo, 

(BIA 1997) (finding that an alien who is charged with deportability as one convicted of an
aggravated felony falls within the section 212(c) bar created by the AEDPA amendments);
Matter of Fuentes-Campos, 

 (BIA 1997) (finding that an alien in exclusion
proceedings is not one who “is deportable” within the section 212(c) bar created by the AEDPA
amendments); Matter of Melo, 

 (BIA 1997) (finding that the “is deportable”
language as used in the Transition Period Custody Rules dealing with bond determinations does
not require that an alien have been charged with, and found deportable on, that deportation
ground, and distinguishing cases involving relief from deportation); Matter of Ching, 

 (BIA 1968) (finding “is deportable” language for suspension of deportation purposes
to require a charge and finding of deportability on that ground). Inasmuch as the respondent
was not charged with deportability as an aggravated felon, he is not barred from section 212(c)
relief as an alien who “is deportable” under section 241(a)(2)(A)(iii) of the Act.

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section 212(c) relief to any alien who “is deportable by reason of having committed . . . any offense covered by section 241(a)(2)(A)(ii) for which both
predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i).” AEDPA § 440(d), as amended by
IIRIRA § 306(d); see also Okoro v. INS, 

 (5th Cir. 1997); Matter
of Soriano, 

, 534 n.1 (BIA 1996; A.G. 1997). That is, the
AEDPA rendered ineligible for a section 212(c) waiver any alien who has
two or more criminal convictions that are grounds of deportability as crimes
involving moral turpitude, as set forth in section 241(a)(2)(A)(i)(II).
   The AEDPA also modified section 241(a)(2)(A)(i) of the Act, which
defined the types of crimes involving moral turpitude that render a person
deportable. Prior to the AEDPA, section 241(a)(2)(A)(i)(II) covered offenses
for which an alien was either actually sentenced to, or confined for, a period
of 1 year or longer.4 The AEDPA expanded that definition to include
offenses “for which a sentence of one year or longer may be imposed.”
AEDPA § 435(a), 110 Stat. at 1274 (emphasis added). Section 435(b) of the
AEDPA, 110 Stat. at 1275, states that the “may be imposed” amendment
made to section 241(a)(2)(A)(i)(II) “shall apply to aliens against whom
deportation proceedings are initiated after the [April 24, 1996,] date of the
enactment of this Act.”

        B. Analysis of Respondent’s Section 212(c) Eligibility
   In this case, the respondent was sentenced to 90 days’ imprisonment for
his first conviction and 4 years’ imprisonment for his second conviction. If
applicable, the AEDPA amendments to section 241(a)(2)(A)(i)(II) of the Act
would preclude the respondent from section 212(c) eligibility, because each
offense carried a possible sentence of 1 year or more. On the other hand, if the
former version of section 241(a)(2)(A)(i)(II) applies, the respondent would
be statutorily eligible for section 212(c) relief because he was sentenced to 1
year or longer for only one conviction. The question, therefore, is which version of section 241(a)(2)(A)(i)(II) of the Act should be relied upon to determine whether the section 241(a)(2)(A)(ii) predicate offenses are covered by
the AEDPA bar.
   On appeal, both the respondent and the Service assert that the former version of section 241(a)(2)(A)(i)(II) of the Act applies to cases, such as the
respondent’s, initiated prior to the AEDPA’s effective date. Thus, the parties’

  4 The former version of section 241(a)(2)(A)(i) stated:

      CRIMES OF MORAL TURPITUDE.—Any alien who—
     (I) is convicted of a crime involving moral turpitude committed within five years . . . after
   the date of entry, and
     (II) either is sentenced to confinement or is confined therefor in a prison or correctional
   institution for one year or longer, is deportable.

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position is that the AEDPA amendments do not bar the respondent from section 212(c) eligibility.
   We reach the same conclusion. First, we note that section 435(b) of the
AEDPA deals with the effective date of the “may be imposed” amendment
made to section 241(a)(2)(A)(i)(II) of the Act. Section 435(b) states that the
amendment “shall apply to aliens against whom deportation proceedings are
initiated after the date of the enactment of this Act.” We find this language
plain and unambiguous. See Matter of S-S-, 

, 901 n.1 (BIA
1997). Consequently, we must accord the unequivocal meaning of the
amendment. Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 

 (1984).
   Second, there is no indication in the statute that the effective date in section
435(b) of the AEDPA was not intended to apply in instances where other sections of the Act reference section 241(a)(2)(A)(i). As noted, the AEDPA
amendment to section 212(c) states that an alien is statutorily ineligible for
relief under that section if he or she is deportable by reason of having committed any offense covered by section 241(a)(2)(A)(ii) for which both predicate
offenses are otherwise covered by section 241(a)(2)(A)(i). We see no reason
not to apply the effective date in section 435(b) in determining which version
of section 241(a)(2)(A)(i)(II) relates to aliens found deportable under section
241(a)(2)(A)(ii). Accordingly, we would apply the former version of section
241(a)(2)(A)(i)(II) to those aliens whose deportation proceedings were initiated before the AEDPA’s effective date. Furthermore, we note that the courts
of appeals for the Fifth, Seventh, and Ninth circuits have similarly held that for
aliens whose deportation proceedings were initiated before the AEDPA’s
effective date, the former version of section 241(a)(2)(A)(i) applies when
determining jurisdiction over final deportation orders under section 241(a)
(2)(A)(ii). Perez v. INS, 

 (9th Cir. 1997); Yang v. INS, 

 (7th Cir.), cert. denied sub nom. Katsoulis v. INS, U.S. ,

 (1997); Pichardo v. INS, 

 (5th Cir. 1997).
   Accordingly, we find that even under changes made to section 212(c) of
the Act by the IIRIRA, the respondent is still eligible for relief under that section. The respondent’s proceedings were initiated on September 19, 1994.
Therefore, the amendment made to section 241(a)(2)(A)(i)(II) does not affect
the respondent’s case, which should be analyzed under section 241(a)(2)
(A)(i)(II) as it existed prior to the AEDPA amendment; that is, we must determine whether both of the respondent’s convictions resulted in a sentence or
confinement of 1 year or longer. The records of conviction indicate that the
respondent was sentenced to 90 days and confined for 2 days for receiving
stolen property and was sentenced to 4 years and confined for 1 year for malicious burning. Consequently, as only one of the respondent’s convictions
resulted in a sentence or confinement of 1 year or longer, he is not statutorily
barred by section 440(d) of the AEDPA from applying for a waiver under
section 212(c) of the Act.

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   We cannot determine whether the respondent merits a favorable exercise
of discretion, however, because the Immigration Judge found the respondent
statutorily ineligible for section 212(c) relief and did not discuss his equities
on the record. Under these circumstances, we find it appropriate to remand
the record to the Immigration Judge for an examination of the respondent’s
equities and for the entry of a new decision. We express no opinion as to the
outcome of those proceedings.

                            IV. CONCLUSION
   In conclusion, we find that because deportation proceedings were initiated
prior to April 24, 1996, the respondent’s conviction for two crimes involving
moral turpitude should properly be analyzed under the definition of section
241(a)(2)(A)(i)(II) of the Act as it existed prior to the AEDPA amendment.
The record will be remanded to the Immigration Judge.
   ORDER:           The appeal is sustained and the record is remanded to
the Immigration Judge for further proceedings consistent with the foregoing
opinion.
CONCURRING OPINION: Lauri S. Filppu, Board Member, in which
Gustavo D. Villageliu and David B. Holmes, Board Members, joined
    I respectfully concur.
    I agree with the decision of the majority that the respondent’s conviction
for two crimes involving moral turpitude should be analyzed under the language of section 241(a)(2)(A)(i)(II) of the Immigration and Nationality Act,

(a)(2)(A)(i)(II) (1994), as it existed prior to amendments
made by the Antiterrorism and Effective Death Penalty Act of 1996, 

 Stat. 1214 (“AEDPA”), and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546 (“IIRIRA”). I write separately, however, to
more fully address the only issue in dispute between the parties: the interpretation of the phrase “is deportable” as it appears in section 212(c) of the Act,

(c) (1994), as amended by AEDPA § 440(d), 110 Stat. at
1277. The majority treats this contested issue in a footnote. This is a question
over which the courts of appeals appear to be giving us conflicting direction
in relation to identical statutory language affecting judicial review provisions. I believe it warrants greater attention.
    Section 440(d) of the AEDPA eliminated the availability of section 212(c)
relief for “any alien who is deportable by reason of having committed any
criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any
offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses
are covered by section 241(a)(2)(A)(i).” AEDPA § 440(d) (subsequently
amended by IIRIRA § 306(d), 110 Stat. at 3009-612)(emphasis added). The
phrase “is deportable” is the critical language in determining whether the

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respondent falls within this bar. The majority has declared that he does not
fall within this language because he was not charged with the specific aggravated felony ground of deportation, section 241(a)(2)(A)(iii) of the Act, that
the Immigration and Naturalization Service now claims acts as a bar to relief.
I concur for the following reasons.
   At the outset, it is not apparent to me from the literal statutory language
whether Congress meant to bar section 212(c) relief to criminal aliens who
simply might be subject to deportation on one of the covered criminal
grounds, if so charged, or only to those who actually have been charged on
such grounds. The Service, moreover, has not identified any legislative history of section 440 of the AEDPA dealing with the “is deportable” language
that helps to explain congressional intent. I find some guidance in resolving
the ambiguity, however, in looking at the total package of changes made by
section 440 of the AEDPA, and particularly at how those changes were
woven into the fabric of the Immigration and Nationality Act as a whole. See
K Mart Corp. v. Cartier, Inc., 

 (1988) (stating that statutory
language should be construed in harmony with the thrust of related provisions and with the statute as a whole).
   The “covered criminal offense” language (italicized above) appears in
five subsections of section 440 of the AEDPA. These subsections affect a
wide range of actions, starting with the initial custody determinations that are
made for newly detained aliens, and finishing with judicial review. Specifically, the “covered criminal offense” language, as inserted into various
provisions of the Immigration and Nationality Act by the AEDPA: 1)
directed the Attorney General to take custody of any alien “convicted of” a
covered criminal offense;5 2) instructed the Attorney General to provide for
the availability of proceedings at various correctional facilities for aliens
“convicted of” covered criminal offenses;6 3) eliminated the availability of
the section 212(c) relief at issue here for any alien who “is deportable” by

  5 Section 440(c)(1)(B) of the AEDPA, 110 Stat. at 1277, “Arrest and Custody,” amended

section 242(a)(2) of the Act, 

(a)(2) (1994), to read:
         The Attorney General shall take into custody any alien convicted of any [covered
      criminal offense], upon release of the alien from incarceration, shall deport the alien as
      expeditiously as possible.
(Emphasis added.)
  6 Section 440(g)(1)(A) of the AEDPA, 110 Stat. at 1278, “Deportation of Criminal Aliens,”

amended section 242A(a)(1) of the Act, 8 U.S.C. § 1252a(a)(1) (1994), to read:
         IN GENERAL. — The Attorney General shall provide for the availability of special
      deportation proceedings at certain Federal, State, and local correctional facilities for
      aliens convicted of any [covered criminal offense]. Such proceedings shall be conducted
      in conformity with section 242 (except as otherwise provided in this section) . . . .
(Emphasis added.)
   I note that section 440(g) of the AEDPA suggests an additional amendment to section
242(a) of the Act which appears to be misplaced.

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reason of having committed a covered criminal offense; 4) endeavored to set
a deadline for the actual deportation of any alien with a final administrative
order who “is deportable” by reason of having committed a covered criminal
offense;7 and 5) restricted judicial review respecting a final deportation order
against an alien who “is deportable” by reason of having committed a covered criminal offense.8
   Thus, the amendments made by three of the subsections link the “covered
criminal offense” language with the “is deportable” language, including the
section 212(c) amendment now before us. All three of these provisions relate
to stages in the deportation process at which a determination of deportability
would be expected to have been made for practical reasons or would necessarily have been made. In the other two, sections 440(c) and 440(g), Congress linked the “covered criminal offense” language with the phrase
“convicted of.” These two changes pertain to aspects of the deportation process in which a determination of deportability would not normally be
expected to have been made yet, such as bond proceedings.
   Viewing the statutory scheme as a whole, therefore, it would seem from
Congress’ delineation of circumstances where an alien “is deportable” by
reason of having committed a covered offense, as opposed to only having
been “convicted of” a covered offense, that Congress was conscious of the
distinction between those aliens charged with, and even found deportable on,
a specific ground and those aliens not yet charged or found deportable. Congress could have used the “convicted of” language, or another similar phrase,
consistently throughout section 440, if it had intended the fact of a criminal
conviction alone to bring an alien within the terms of each of these
amendments.
   Given the logical pattern of the AEDPA legislative scheme and in the
apparent absence of explanatory legislative history, the majority could reasonably conclude that Congress intended an alien to be charged with a relevant ground of deportability before falling within the “is deportable”
language of section 212(c), as amended.

  7 Section 440(h)(2) of the AEDPA, 110 Stat. at 1279, “Deadlines for Deporting Alien,”

amended section 242(c)(2) of the Act by adding the following paragraph:
         When a final order of deportation under administrative process is made against any
      alien who is deportable by reason of having committed a [covered criminal offense], the
      Attorney General shall have 30 days from the date of the order within which to effect the
      alien’s departure from the United States.
(Emphasis added.)
  8 Section 440(a) of the AEDPA, 110 Stat. at 1276-77, “Judicial Review,” amended section

106(a)(10) of the Act, 8 U.S.C. § 1105a(a)(10) (1994), to read:
        Any final order of deportation against an alien who is deportable by reason of having
      committed a [covered criminal offense], shall not be subject to review by any court.
(Emphasis added.)

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   Assessing the “is deportable” language of section 212(c) in relation to the
other amendments made by section 440 of the AEDPA is by no means a certain guide to congressional intent. And, I am troubled by conflicting court
interpretations of the related jurisdictional provisions, by the seeming inconsistency in the use of the phrase “is deportable” in connection with a more
recent, IIRIRA amendment to the bond and custody provisions, and by the
regulatory availability of section 212(c) relief through applications filed
directly with Service district directors who bring deportation charges against
aliens but who do not make the deportability determinations entrusted to
Immigration Judges.
   In construing the identical “is deportable” language of section 440(a) of
the AEDPA, relating to judicial review, two United States courts of appeals
have taken a position different from the majority. Mendez-Morales v. INS,

 (8th Cir. 1997); Abdel-Razek v. INS, 

(9th Cir. 1997). Without meaningful explanation, these courts have found
that this amendment, containing the identical “is deportable” language,
barred judicial review for an alien who had not actually been charged on the
basis of the “aggravated felony” ground of deportation that was held to bar
court of appeals jurisdiction. These courts provide no significant analysis or
reasoning to explain their results and, importantly, the case before us does not
originate in either of these circuits. While these rulings give me pause, they
lack an analysis that would suggest the error of our current reading of the
statute.
   In contrast, the United States Court of Appeals for the First Circuit has
held that judicial review is not precluded by the AEDPA’s section 440(a)
amendments where the aggravated felony at issue did not serve as the basis of
the deportability charge. Choeum v. INS, 

 (1st Cir. 1997). That
court reasoned that the Service could not, consistent with due process and the
statutory and regulatory requirements governing its own proceedings, substitute new grounds for deportation, solely for the purpose of depriving federal
courts of jurisdiction. As the court stated, “[A]t the core of [an alien’s] due
process rights is the right to notice of the nature of the charges and a meaningful opportunity to be heard.” 

 at 38 (citing Kwong Hai Chew v. Colding,

 (1953); Kaczmarczyk v. INS, 

 (7th
Cir.), cert. denied, 

 (1991)). While the ruling in Choeum is capable of different readings, its analysis and the court’s final result support an
interpretation that would require a charge (and a finding) of deportability
based on a conviction, and quite possibly on a ground that falls within the
“covered offenses” language of section 440(a) of the AEDPA.
   A further reservation regarding congressional intent, in relation to the “is
deportable” language, arises from the recent amendments to the bond provisions made by sections 303(a) and 303(b)(3) of the IIRIRA, 110 Stat. at
3009-585 and 3009-586. There, in the context of bond and custody determinations typically arising before rulings on deportability, Congress linked

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together “covered criminal offense” and “is deportable” language similar to
that found in section 440 of the AEDPA.9 For practical reasons, one would
not expect to require a determination of deportability to have been made at
the time of the initial bond and custody proceeding. See Matter of Melo, 

, at 885 n.2 (BIA 1997) (finding it both impractical and nonsensical to require a deportability ruling before a bond determination could be
made). Thus, this use of the phrase “is deportable” in the bond context is
inconsistent with my perception of what appeared in the AEDPA amendments to be a conscious understanding of where in the process a determination of deportability is normally expected. The construction we attached to
the “is deportable” language in the IIRIRA bond context in Matter of Melo,
supra, also argues in favor of a similar construction here, if for no other reason than to avoid having identical, or nearly identical, language bear different
interpretations in different sections of the same statute.
   But this very problem of assigning different meanings to identical language is already present as a result of Matter of Melo, supra, and Matter of
Ching, 

 (BIA 1968) (construing “is deportable” for suspension of deportation purposes to require a charge and finding of deportability
under the relevant deportation ground). The Service does not now claim that
Matter of Ching, supra, was wrongly decided. Absent reconsideration of
Ching, overall harmony in our construction of the phrase is impossible to
achieve.
   It may also be inappropriate to strive for a consistent reading of the phrase
“is deportable” throughout the Act. Indeed, it is more likely that the better
construction of the phrase will depend on, and therefore be gleaned from, the
context in which it is used. A quick look at the phrases “is inadmissible,” “is
deportable,” and “is removable” (including negative phrasing), contained in
various sections of the Act, as revised by the IIRIRA, yields no readily apparent uniform meaning. See sections 240(b)(2)(D), (c)(3)(A), (5)(A), (e)(2) of
the Act (to be codified at 8 U.S.C. §§ 1229a(b)(2)(D), (c)(3)(A), (5)(A),
(e)(2)); section 240B(a)(1) of the Act (to be codified at 8 U.S.C.
§ 1229c(a)(1)); see also section 239(d) of the Act (to be codified at 

(d)) (“is convicted of an offense which makes the alien deportable”);
section 240A(d)(1) of the Act (to be codified at 8 U.S.C. § 1229b(d)(1)) (“has
committed an offense . . . that renders the alien inadmissible . . . or removable”); section 241(b)(3)(B) of the Act (to be codified at 8 U.S.C.

  9 For example, the Transition Period Custody Rules of section 303(b)(3)(A) of the IIRIRA

read, in relevant part:
    IN GENERAL.—During the period in which this paragraph is in effect . . ., the Attorney
   General shall take into custody any alien who—
    ...
      (iii) is deportable by reason of having committed any offense covered in section
      241(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act . . . .

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§ 1231(b)(3)(B)) (providing that restriction on removal for alien whose life
or freedom would be threatened in country of removal, “does not apply to an
alien deportable” for having assisted in Nazi persecution or genocide).
    Accepting for the moment that the construction of the phrase “is
deportable” will generally depend on context, the question remains whether
the IIRIRA’s placement of the “is deportable” language in a similarly structured bond provision signifies the construction Congress intended in the
AEDPA. In the end, I find Congress’ use of the term “is deportable” in subsequent IIRIRA bond amendments to be an uncertain guide for how we should
treat the same language in the earlier AEDPA amendments. It may simply
signify that the IIRIRA amendments were not as carefully meshed into the
existing statutory structure as the AEDPA amendments, or that the relevant
context warrants a different construction in each instance. And, given the
overall structure of the AEDPA amendments, it appears Congress was well
aware of the potential for some criminal aliens to seek section 212(c) relief in
deportation proceedings, and less clear that Congress was aware of the availability of relief through applications made directly to Service district directors who do not make deportability determinations comparable to those made
by Immigration Judges.
    Most importantly, when I add together the reasoning of Ching, the concerns expressed by the First Circuit in Choeum, and the structure of the various subsections of the AEDPA’s section 440, I am unwilling to depart from
the majority’s reading of “is deportable” in section 212(c), as amended. As
far as district director jurisdiction is concerned, in Matter of Fuentes-Campos, 

 (BIA 1997), we ruled that the criminal bar to section 212(c) relief, containing the “is deportable” language, was not applicable to aliens in “exclusion” proceedings. That decision, and the sweeping
changes made to the Act as a whole by the IIRIRA, severely restrict or eliminate the circumstances under which a district director of the Service might
have occasion to address the “is deportable” clause in a section 212(c)
request filed directly with the Service, particularly to the extent such applications have been deemed to arise in the functional equivalent of the “exclusion” context. See 

(a)(1)(1997). Thus, as was the case in
Matter of Ching, supra, which dealt with suspension of deportation, the portion of section 212(c) now before us will typically become an issue only after
a finding of deportability is made by an Immigration Judge, and only in those
cases where the availability of section 212(c) relief was preserved by the
IIRIRA. And, in the context of a deportation proceeding, a request for section
212(c) relief would not be needed by a lawful permanent resident, absent a
determination of deportability. The majority’s construction of the phrase, to
require that the alien be charged with the requisite ground of deportability,
would appear to be consistent with the reasoning that led to our ruling in
Ching and not obviously inconsistent with district director jurisdiction over
similar requests.

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   The majority’s interpretation is also consistent with the “principle of construing any lingering ambiguities in deportation statutes in favor of the
alien.” INS v. Cardoza-Fonseca, 

 (1987); see also INS v.
Errico, 

 (1966); Costello v. INS, 

 (1964);
Barber v. Gonzales, 

 (1954); Fong Haw Tan v. Phelan,

 (1948).
   We may not have seen the last of this question, especially given the case
law respecting the closely related judicial review provisions. I see respectable arguments for and against the majority’s construction. But, at present
and for the foregoing reasons, I concur with the majority’s finding that the
respondent remains statutorily eligible for section 212(c) relief as he has not
been charged with, and found deportable under, the specific aggravated felony ground of deportability currently advanced by the Service as the basis for
barring relief at this time.
CONCURRING AND DISSENTING OPINION: Philemina M. Jones,
Board Member, in which Patricia A. Cole, Board Member, joined
   I respectfully concur in part and dissent in part.
   I agree with the majority’s decision that the respondent’s conviction for
two crimes involving moral turpitude is properly analyzed under the language of section 241(a)(2)(A)(i)(II) of the Immigration and Nationality Act,

(a)(2)(A)(i)(II) (1994), as it existed prior to amendments
made by the Antiterrorism and Effective Death Penalty Act of 1996, 

 Stat. 1214 (“AEDPA”), and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546 (“IIRIRA”).
   I disagree, however, with the majority’s conclusion that the respondent
remains eligible for relief under section 212(c) of the Act, 

(c)(1994), as amended by AEDPA § 440(d), 110 Stat. at 1277. Section
440(d) of the AEDPA eliminated the availability of section 212(c) relief for
“any alien who is deportable by reason of having committed [an aggravated
felony or other covered offense].” AEDPA § 440(d) (subsequently amended
by IIRIRA § 306(d), 110 Stat. at 3009-612). Both the majority and concurring opinions conclude that the respondent does not fall within the “is
deportable” language of section 440(d) because he was not charged with the
specific aggravated felony ground of deportation which is now asserted by
the Immigration and Naturalization Service as a bar to section 212(c) relief. I
dissent for the following reasons.
   The determinative language is the phrase “is deportable by reason of having committed” a covered offense. I find this language plain and unambiguous because it does not mention a charge or a finding of deportability. Where
the language of a statute is clear, as it is here, the unambiguously expressed
intent of Congress must be given effect. Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 

 (1984). If Congress intended

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a charge and finding of deportability, the phrase would read “is found
deportable,” rather than simply, “is deportable.” Consequently, I do not read
the plain meaning of this phrase as requiring a charge and a finding of
deportability.
   My position is further supported by at least two United States courts of
appeals which have construed the identical language of section 440(a) of the
AEDPA as not requiring a charge and finding of deportability.
Mendez-Morales v. INS, 

 (8th Cir. 1997); Abdel-Razek v.
INS, 

 (9th Cir. 1997). These courts have held that this
amendment barred judicial review for an alien who was convicted of a covered offense. In both cases, the alien was charged and found deportable on
another basis, but based on the same conviction. Also, in both cases, the
deportability hearing occurred prior to the effective date of the AEDPA
amendments.
   Moreover, I do not find my position inconsistent with the United States
Court of Appeals for the First Circuit. The First Circuit has held that the Service may not substitute a new conviction and new ground of deportation,
solely for the purpose of depriving federal courts of jurisdiction under
AEDPA’s section 440(a), where the new conviction never served as the basis
for charging and finding the alien deportable. Choeum v. INS, 

(1st Cir. 1997). The court distinguished this situation from one where the Service was merely attempting to charge the alien with an alternative legal
ground of deportability based on the same conviction with which the alien
was previously charged. See 

 at 40 n.8.
   I also note that allowing the Service to substitute a legal basis of
deportability which did not exist at the time of the alien’s conviction or
deportation hearing does not violate established notions of due process. As
the Attorney General noted in Matter of Soriano, Interim Decision 516 (BIA
1996; A.G. 1997), “[I]t is well settled that Congress may legislate to alter the
immigration consequences of past criminal convictions or acts.” 

 at 534
n.2 (citing Mulcahey v. Catalanotte, 

 (1957); Lehman v.
United States ex rel. Carson, 

 (1957)).
   Furthermore, I do not find that applying the new definition of aggravated
felony to the respondent would have an impermissible retroactive effect. In
Landgraf v. USI Film Products, 

 (1994), the Supreme Court set
forth a method for analyzing whether the application of legislation had an
impermissible retroactive effect. The Court found that “[w]hen a case implicates a federal statute enacted after the events in suit, the court’s first task is to
determine whether Congress has expressly prescribed the statute’s proper
reach. If Congress has done so, . . . there is no need to resort to judicial default
rules.” 

. Here, we have clear language stating that the amendment to
the aggravated felony definition applies to any conviction entered before, on,
or after April 1, 1997, and that the amendment applies to any action taken on
or after April 1, 1997. IIRIRA §§ 321(b), (c), 110 Stat. at 3009-628.

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Inasmuch as this Board’s review of an alien’s appeal constitutes an “action,”
the respondent is subject to this revised definition. See Matter of BatistaHernandez, 

 (BIA 1997) (finding that the Board’s consideration of an Immigration Judge’s certification of a case constitutes an
“action”).
   I conclude that the respondent is statutorily ineligible for section 212(c)
relief because he has been convicted of an aggravated felony under section
101(a)(43)(F) of the Act (to be codified at 

(a)(43)(F)). Specifically, his conviction for malicious burning of an automobile constitutes
an aggravated felony because it is a crime of violence for which the term of
imprisonment is at least 1 year. See Matter of Alcantar, 

(BIA 1994) (defining a crime of violence, in part, as an offense where physical force is used against the property of another). Accordingly, having concluded that an enumerated charge of deportability is not required under
section 440(d) of the AEDPA, and finding that the respondent has been convicted of an aggravated felony, I find that he is statutorily ineligible for section 212(c) relief.
   For the foregoing reasons, I would dismiss the respondent’s appeal.




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