SAINT JOHN

                                                                     Interim Decision #3295


Interim Decision #3295



                  In re Clint SAINT JOHN, Respondent

                            File A31 171 658 - New York

                             Decided September 23, 1996

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

  An alien convicted of attempting or conspiring to commit a firearms violation is deportable
under section 241(a)(2)(C) of the Immigration and Nationality Act, 

(a)(2)(C)
(1994), which applies retroactively to convictions entered before, on, or after October 25, 1994.
Matter of Hou, 

 (BIA 1992), superseded.

FOR RESPONDENT: Neil Martin Zang, Esquire, New York, New York

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,
MATHON, and GUENDELSBERGER, Board Members.

HEILMAN, Board Member:

   In a decision dated November 28, 1994, the Immigration Judge found the
respondent deportable under section 241(a)(2)(C) of the Immigration and
Nationality Act, 

(a)(2)(C) (1994), denied his application for a
waiver of inadmissibility under section 212(c) of the Act, 

(c)
(1994), and ordered him deported from the United States to Trinidad and
Tobago. The respondent has appealed from this decision. The appeal will be
dismissed.

                                  I. BACKGROUND
   The respondent is a male, native and citizen of Trinidad and Tobago who
entered the United States as a lawful permanent resident on or about July 15,
1972. On June 13, 1994, an Order to Show Cause and Notice of Hearing
(Form I-221) was issued against the respondent charging him with
deportability under section 241(a)(2)(C) of the Act for conviction of a firearms violation. At his hearing, the respondent admitted the allegations of fact
but contested the charge of deportability. The respondent filed a motion to
terminate deportation proceedings, which was denied by the Immigration
Judge, who subsequently found him deportable as charged.

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   The record reveals that the respondent was convicted on July 19, 1990, in
the United States District Court for the Eastern District of Virginia, of providing false information or identification to a federal firearms dealer in the
acquisition of a firearm pursuant to 

(a)(6) (1988).1 As a result
of his conviction, the respondent was fined and sentenced to 6 months’ incarceration to be followed by 3 years of supervised release.

                              II. ISSUES ON APPEAL
   On appeal, the respondent argues that under existing Board precedent his
conviction cannot be used to find him deportable under section 241(a)(2)(C)
of the Act.2 He also contends that the Immigration Judge erred in determining that he was deportable because application of the 1994 amendment to
section 241(a)(2)(C) constitutes an impermissible retroactive application of
law. Finally, he asserts that he is eligible for a waiver of inadmissibility
under section 212(c) of the Act.

  III. BACKGROUND OF SECTION 241(a)(2)(C) OF THE ACT
   At the time of the respondent’s conviction in July 1990, the ground of
deportability regarding firearms convictions was at section 241(a)(14) of the
Act, 

(a)(14) (1988), which provided for the deportation of an
alien who
   at any time after entry, shall have been convicted of possessing or carrying in violation of
   any law any firearm or destructive device (as defined in paragraphs (3) and (4)), respectively, of section 921(a) of title 18, United States Code, or any revolver or any weapon
   which shoots or is designed to shoot automatically or semiautomatically more than one shot
   without manual reloading, by a single function of the trigger, or a weapon commonly called
   a sawed-off shotgun.
   Section 241(a)(14) was subsequently revised and redesignated in November 1990 as section 241(a)(2)(C) of the Act, 

(a)(2)(C) (Supp.
II 1990), by section 602(a) of the Immigration Act of 1990, 

 Stat. 4978, 5080. In 1990 section 241(a)(2)(C) stated that

  1 Section 922(a)(6) provides that it is unlawful

       for any person in connection with the acquisition or attempted acquisition of any firearm
       or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or
       licensed collector, knowingly to make any false or fictitious oral or written statement or
       to furnish or exhibit any false, fictitious, or misrepresented identification, intended or
       likely to deceive such importer, manufacturer, dealer, or collector with respect to any
       fact material to the lawfulness of the sale or other disposition of such firearm or
       ammunition under the provisions of this chapter.
   2 The respondent has consistently characterized his conviction as being for attempted

possession of a firearm. However, his claim is not that his conviction does not constitute a
firearms conviction under section 241(a)(2)(C), but rather that the 1994 amendments to section
241(a)(2)(C) of the Act, which added attempted possession of a firearm to that ground of
deportability, should not have been applied to his 1990 conviction.

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  [a]ny alien who at any time after entry is convicted under any law of purchasing, selling,
  offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law,
  any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) is deportable.
This amendment applies to deportation proceedings for which notice has
been provided to the alien on or after March 1, 1991. See section 602(d) of the
Immigration Act of 1990, 104 Stat. at 5082. The respondent does not challenge the application of this amendment to his July 1990 conviction.
   At the time of the respondent’s deportation hearing, however, section
241(a)(2)(C) of the Act provided that
  [a]ny alien who at any time after entry is convicted under any law of purchasing, selling,
  offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or
  conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any
  weapon, part, or accessory which is a firearm or destructive device (as defined in section
  921(a) of title 18, United States Code) in violation of any law is deportable. (Emphasis
  added.)
The reference to attempts and conspiracies was added to section 241(a)(2)(C)
of the Act by section 203(b) of the Immigration and Nationality Technical
Corrections Act of 1994, 

 Stat. 4305, 4311. This
amendment applies to convictions occurring “before, on, or after” the October 25, 1994, enactment date of the 1994 Technical Corrections Act. See section 203(c) of the Immigration and Nationality Technical Corrections Act of
1994, 108 Stat. at 4311.
   We have previously held that a conviction for an attempted firearms
offense will not support a charge of deportability under section 241(a)(2)(C)
of the Act. Matter of Hou, 

 (BIA 1992). We rendered our
decision in that case, however, prior to the passage of the Immigration and
Nationality Technical Corrections Act of 1994, which, as discussed above,
added attempts and conspiracies to section 241(a)(2)(C) of the Act. This
1994 amendment effectively supersedes the Board’s decision in Matter of
Hou.

      IV. RETROACTIVE APPLICATION OF STATUTORY
                    AMENDMENT
   The respondent also asserts on appeal that the Immigration Judge erred by
applying the 1994 amendment retroactively to his 1990 conviction. We find
no error. To determine whether Congress intended for the 1994 amendment
to apply retroactively to section 241(a)(2)(C) of the Act, we must first ascertain congressional intent from the plain meaning of the words used in the statute taken as a whole. See Matter of Grinberg, 

 (BIA 1994)
(citing INS v. Cardoza-Fonseca, 

 (1987)); see also K Mart
Corp. v. Cartier, Inc., 

 (1988) (stating that in determining
the “plain meaning” of a statute, one “must look to the particular statutory
language at issue, as well as the language and design of the statute as a

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whole”). In the Immigration and Nationality Technical Corrections Act of
1994, Congress stated that the amendment pertaining to the revision of section 241(a)(2)(C) of the Act should apply to convictions “before, on, or after”
the October 25, 1994, enactment date of the statute. We thus find, based on
the express language of the statute, that Congress intended the 1994 amendment to section 241(a)(2)(C) to be applied retroactively.
   Furthermore, retroactive application of new statutory provisions to conduct which was not an immigration law violation at the time that the conduct
occurred has been upheld by the courts. See Galvan v. Press, 

(1954) (upholding retroactive application of federal legislation concerning
immigration and deportation of aliens); Giusto v. INS, 

 (2d Cir. 1993)
(upholding the retroactive bar to a section 212(c) waiver for aliens convicted
of one or more aggravated felonies who have served at least 5 years’ imprisonment as a result of such felonies); Buitrago-Cuesta v. INS, 

 (2d
Cir. 1993) (holding that the retroactive bar to a section 212(c) waiver for
aggravated felons seeking to reenter the United States also applies to aliens in
deportation proceedings); United States v. Koziel, 

 (2d Cir.
1992) (finding that the law abolishing judicial recommendations against
deportation can be applied retroactively to conduct that occurred prior to the
change in law); Gardos v. INS, 

 (2d Cir. 1963) (stating that retroactive application of a statute authorizing deportation of an alien who at any
time had been convicted of a law or regulation related to a controlled substance does not violate the ex post facto clause of the Constitution).
   Consequently, we find that the Immigration Judge was bound to follow
the law established by Congress and properly did so. We therefore find no
error in his application of the 1994 amendment of section 241(a)(2)(C) of the
Act to the respondent’s 1990 conviction.
   The respondent has admitted that he was convicted of attempted possession of a firearm. Because conviction for attempted possession of a firearm is
a deportable offense under section 241(a)(2)(C) of the Act, as amended, and
that statute is properly applied to the respondent’s conviction, we find that
deportability has been established by clear, unequivocal, and convincing
evidence. See Woodby v. INS, 

 (1966); 

(a)
(1996).

 V. STATUTORY ELIGIBILITY FOR SECTION 212(c) RELIEF
   On appeal, the respondent further contends that, should he be found to be
deportable for a firearms violation, the Immigration Judge erred in determining that he was ineligible for a waiver of inadmissibility under section 212(c)
of the Act. He asserts that he is eligible for such relief from deportation pursuant to the ruling of the United States Court of Appeals for the Second Circuit in Bedoya-Valencia v. INS, 

 (2d Cir. 1993).
   Section 212(c) of the Act provides, in pertinent part, that

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   [a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful
   unrelinquished domicile of seven consecutive years, may be admitted in the discretion of
   the Attorney General without regard to the provisions of subsection (a) (other than paragraphs (3) [security and related grounds] and (9)(C) [international child abduction]).
    The availability of section 212(c) relief was significantly expanded in
1976 when the Second Circuit held that a section 212(c) waiver should be
available regardless of whether the applicant had departed from the United
States subsequent to the acts which rendered him deportable. Francis v. INS,

 (2d Cir. 1976). This Board decided shortly thereafter to adopt
the approach of the Second Circuit nationwide. Matter of Silva, 

 (BIA 1976). The Board has declined to further expand the parameters of
section 212(c). See Matter of Esposito, 

 (BIA 1995); Matter of
Granados, 

 (BIA 1979), aff’d, 

 (9th Cir. 1980).
    The record reflects, and the respondent has admitted, that he was convicted of attempted possession of a firearm. As discussed above, the respondent is deportable under section 241(a)(2)(C) of the Act due to this
conviction. A lawful permanent resident alien who has been convicted of a
firearms violation is ineligible to apply for a waiver of inadmissibility under
section 212(c) of the Act. Matter of Montenegro, 

 (BIA
1992); Matter of Hernandez-Casillas, 

 (BIA 1990, A.G.
1991). Thus, although he has been a lawful permanent resident for 23 years,
the respondent is statutorily ineligible for a waiver of inadmissibility pursuant to section 212(c) of the Act because of his conviction for a firearms
violation.
    Moreover, the respondent’s reliance upon Bedoya-Valencia v. INS, supra,
is misplaced. In that case, the Second Circuit, in whose jurisdiction the present case arises, determined that, under equal protection concerns, an alien
deportable for entering the United States without inspection could still be eligible for a waiver of inadmissibility under section 212(c) of the Act because
that was a charge of deportability which logically could have no analogous
ground of exclusion. Such is not the case presented here. Furthermore, the
circuit court has not extended the holding in Bedoya-Valencia v. INS to cover
aliens who have been convicted of a firearms violation, and we decline to do
so. See Cato v. INS, 

 (2d Cir. 1996) (“Because a weapons offense
is not a ground of deportation that ‘could not conceivably’ have an exclusion
counterpart, the Bedoya-Valencia reasoning does not apply.”) (citation omitted). Under existing Board and Second Circuit precedent, the respondent is
ineligible to apply for a waiver of inadmissibility under section 212(c) of the
Act because there is no comparable ground of exclusion for his section
241(a)(2)(C) charge of deportability. Cato v. INS, supra; Matter of
Montenegro, supra; Matter of Hernandez-Casillas, supra.




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                          VI. CONCLUSION
   Because the respondent is deportable as charged and has not demonstrated
that he is eligible for any relief from deportation, the appeal will be
dismissed.
   ORDER:         The appeal is dismissed.




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