K-V-D

                                                                Interim Decision #3422




                          In re K-V-D-, Respondent

                            Decided December 10, 1999

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


(1) Where a circuit court of appeals has interpreted the definition of an “aggravated felony”
under section 101(a)(43) of the Immigration and Nationality Act, 

(a)(43)
(1994), only for purposes of criminal sentence enhancement, the Board of Immigration
Appeals may interpret the phrase differently for purposes of implementing the immigration
laws in cases arising within that circuit.

(2) An alien convicted in Texas of simple possession of a controlled substance, which would
be a felony under Texas law but a misdemeanor under federal law, is not convicted of an
aggravated felony within the meaning of section 101(a)(43)(B) of the Act. Matter of L-G-,

 (BIA 1995), affirmed.

Lisa Brodyaga, Esquire, Harlingen, Texas, for respondent

John W. McPhail, Assistant District Counsel, and Julia K. Doig, Chief Appellate Counsel, for
the Immigration and Naturalization Service

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

ROSENBERG, Board Member:



    In a decision dated October 13, 1998, the Immigration Judge found the
respondent subject to removal from the United States pursuant to section
237(a)(2)(A)(iii) of the Immigration and Nationality Act, 

(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated
felony as defined in section 101(a)(43)(B) of the Act, 

(a)(43)(B) (1994), and pursuant to section 237(a)(2)(B)(i) of the Act,
as an alien convicted of a controlled substance violation. On the basis of
these findings, the Immigration Judge also found the respondent ineligible


                                           1163
Interim Decision #3422


for any form of relief from removal. The respondent filed a timely appeal.1
      The determination whether the respondent has been convicted of an
aggravated felony turns on the applicability of the Board’s decision in
Matter of L-G-, 

 (BIA 1995). In Matter of L-G-, we construed the phrase “drug trafficking crime (as defined in section 924(c)(2) of
title 18, United States Code)” in section 101(a)(43) of the Act, 

(a)(43) (Supp. V 1993), to require that, for immigration purposes, a
state felony conviction involving a controlled substance violation must be
for a crime that would be punishable as a felony under federal law.
      In concluding that the respondent’s state felony conviction for the
crime of simple possession of a controlled substance constituted an aggravated felony for immigration purposes and rendered the respondent removable as charged, the Immigration Judge did not follow our precedent in
Matter of L-G-, supra. Instead, he relied on the decisions of the United
States Court of Appeals for the Fifth Circuit in United States v. Hinojosa-Lopez, 

 (5th Cir. 1997), and United States v. Reyna-Espinosa,

 (5th Cir. 1997). In those cases, the Fifth Circuit interpreted
the language in section 101(a)(43) of the Act for purposes of criminal sentence enhancement under the United States Sentencing Guidelines
(“U.S.S.G.”)2 to cover any state felony that is punishable under the
Controlled Substances Act, 

 (1994).
      Upon review, we conclude that the Fifth Circuit’s decision in United
States v. 

 relating to criminal sentence enhancement,
does not control the determination whether the respondent has been convicted of an aggravated felony for immigration purposes. The parties agree
that the decision does not address the interpretation of section
101(a)(43)(B) of the Act for immigration purposes and is not dispositive of
the issue before us. The Second Circuit, which is the only federal circuit
court of appeals to interpret the terms of section 101(a)(43)(B) of the Act,
both for sentence enhancement purposes and for immigration law purposes, also agrees that different interpretations of this provision are appropriate
in each context. See Aguirre v. INS, 

 (2d Cir. 1996) (following



     1
       The request to waive the appellate filing fee is hereby granted. 

(c) (1999).
     2
       At the time of the Fifth Circuit’s decisions, the definition of an aggravated felony set
forth at section 101(a)(43) of the Act was incorporated by reference into the sentencing guidelines in U.S.S.G. § 2L1.2 at application note 7. See 18 U.S.C.A. ch. 2, § 2L1.2, appl. n.7 (West
1996). The application notes were subsequently revised to refer specifically to 

(a)(43). See 18 U.S.C.A. ch. 2, § 2L1.2, appl. n.1 (West Supp. 1997). For additional history of the sentencing guidelines and the United States Sentencing Commission, see the
Sentencing Reform Act of 1984, which was enacted as part of the Comprehensive Crime
Control Act of 1984, 

 Stat. 1873, 1976, 1987, 2017 (codified at 

).


                                             1164
                                                                  Interim Decision #3422


the Board’s interpretation in Matter of L-G-, supra, in a deportation case,
despite having adopted a different interpretation of the same language in the
context of criminal sentence enhancement); see also United States v.
Pornes-Garcia, 

 (2d Cir.) (reaffirming the Second Circuit’s differing interpretations for criminal sentence enhancement purposes and
immigration purposes), cert. denied, 

 (1999).
     Accordingly, we hold that the rule in Matter of L-G-, supra, governs the
disposition of the respondent’s appeal. We find that the respondent’s conviction for the crime of simple possession of a controlled substance, which
would not be punishable as a felony under federal law, is not an aggravated
felony conviction. Therefore, the respondent is not subject to removal or
statutorily ineligible for relief from removal on that basis. The respondent’s
appeal will be sustained and the record will be remanded to the Immigration
Judge for further proceedings.


                                         I. ISSUE

     The principal issue before us is whether the respondent’s state felony
conviction for the crime of possession of a controlled substance, which
would be punishable only as a misdemeanor under federal law, is a conviction for a “drug trafficking crime,” constituting an “aggravated felony” for
immigration purposes.3 To resolve this issue, we must determine the effect
of the Fifth Circuit’s decision in United States v. 

which holds that a Texas felony conviction for aggravated possession of
marijuana is an aggravated felony for criminal sentence enhancement purposes—on our precedent decision in Matter of L-G-, supra.


            II. FACTUAL AND PROCEDURAL BACKGROUND

    The respondent is a native and citizen of Vietnam, who was admitted to
the United States in 1987 as a refugee. He has been a lawful permanent resident of the United States since September 22, 1987. On August 13, 1992,
he pled guilty to the charge of simple possession of a controlled substance,
to wit, less than 28 grams of cocaine, in violation of section 481.115 of the
Texas Health and Safety Code Annotated. He was placed on probation, and
adjudication was deferred.



     3
       The Immigration Judge’s finding that the respondent is subject to removal because he
has been convicted of a violation of state law relating to a controlled substance under section
237(a)(2)(B)(i) of the Act is not contested.

                                            1165
Interim Decision #3422


     On December 2, 1997, the respondent was sentenced to serve a term of
imprisonment of 5 years based on his failure to report to his probation officer, a violation that nullified the deferred adjudication. According to the
amount of controlled substance involved, the respondent’s conviction is
classified as a felony of the second degree under Texas law. See 

(d) (West 1997).
     The Immigration and Naturalization Service issued a Notice to Appear
(Form I-862), in which it charged the respondent with being removable
under section 237(a)(2)(B)(i) of the Act, as an alien who has been convicted of a violation of a law relating to a controlled substance. The Service also
charged that the respondent was removable under section 237(a)(2)(A)(iii)
of the Act, as an alien who had been convicted of an aggravated felony after
his admission to the United States. On August 24, 1998, the Service filed
the Notice to Appear with the Immigration Court.
     In the removal proceedings that followed, the Immigration Judge concluded that the crime for which the respondent was convicted was an aggravated felony within the meaning of section 101(a)(43)(B) of the Act.
Relying on the reasoning of the Fifth Circuit in United States v. Hinojosa-

 he found that the respondent was convicted of a crime analogous to a “drug trafficking crime (as described in section 924(c)(2) of title
18),” and that the conviction was for an aggravated felony because the crime
was classified as a felony under state law. Based on the fact that the respondent received a sentence to a 5-year term of imprisonment for his conviction, the Immigration Judge concluded that he was ineligible for any forms
of relief from removal. See sections 208(b)(2)(B)(i), 240A(a)(3),
241(b)(3)(B) of the Act, 

(b)(2)(B)(i), 1229b(a)(3),
1231(b)(3)(B) (Supp. II 1996).
     In his Notice of Appeal, the respondent challenged the Immigration
Judge’s finding that he was ineligible for relief from removal and requested
an opportunity for oral argument before the Board. On September 10, 1999,
a seven-member panel representing the full en banc Board convened and
held oral argument. The respondent was represented by pro bono counsel
obtained through the American Immigration Lawyers Association. The
Service was represented by counsel from the Office of Appellate Counsel.
In response to our request for supplementary briefing, the Board received
briefs from both parties prior to oral argument.
     At oral argument, both parties agreed that the Fifth Circuit’s decision in
United States v. Hinojosa-Lopez did not control the Board’s disposition of
the case. Nevertheless, the parties dispute the proper resolution of the issue
presented in this case. In essence, the respondent argued that we should
uphold our decision in Matter of L-G- in deciding his appeal. By contrast,
the Service argued that we should reconsider and overturn our decision in
Matter of L-G-.
     In his supplementary brief and at oral argument, the respondent point-

                                    1166
                                                      Interim Decision #3422


ed out that the decision of the Fifth Circuit in United States v. Hinojosa-Lopez addressed the language appearing in both application note 7 of the
sentencing guidelines and section 101(a)(43) of the Act only in relation to
its meaning for purposes of implementing the sentencing guidelines that
apply to federal criminal cases. The respondent emphasized that the court
did not examine or interpret that statutory language for immigration purposes. The respondent urged us to recognize the rule of construction that,
even when used in the same statute, a particular phrase can have different
meanings when interpreted for different purposes.
     The respondent also emphasized that the relevant precedent decisions
issued by the Board over the past decade, beginning with Matter of Barrett,

 (BIA 1990) and Matter of Davis, 

 (BIA
1992), and culminating in Matter of L-G-, reflect legitimate policy concerns for national uniformity, which are appropriate in the context of
administering the federal immigration laws. He argued that these concerns
justify our reliance on a federal analogue to determine which state offenses
may be deemed felony convictions for purposes of adjudicating removal
charges based on section 101(a)(43)(B) of the Act. Finally, the respondent
argued that Congress should be presumed to be aware of the Board’s longstanding interpretation of the terms of section 101(a)(43)(B) of the Act; yet
Congress took no action in its recent comprehensive revisions of the Act to
amend that portion of the statute or to alter our interpretation.
     Despite its agreement that the specific issue before us is not controlled
by United States v. Hinojosa-Lopez, the Service urged us to affirm the decision of the Immigration Judge. At oral argument and in its supplementary
brief, the Service argued that “you have to respect the designation of the
crime provided by the states.”
     The Service renewed the argument that it had made previously when it
asked us to reconsider our original decision in Matter of L-G-, 

 (BIA 1994) (finding a felony offense under Louisiana law not to constitute a felony under the federal drug laws). Notwithstanding our prior
rejection of the Service’s position in Matter of L-G-, the Service suggested
that we rely on the Fifth Circuit’s interpretation in United States v.
Hinojosa-Lopez, pertaining to what constitutes a “drug trafficking crime”
for criminal sentence enhancement purposes, to overturn our standing interpretation of the statutory language for immigration purposes. See Matter of
L-G-, 21 I&N Dec. at 102; Matter of Davis, supra; Matter of Barrett, supra.


   III. INTERPRETATION OF SECTION 101(a)(43)(B) OF THE ACT

     Section 101(a)(43)(B) of the Act defines an aggravated felony as “illicit trafficking in a controlled substance (as described in section 102 of the
Controlled Substances Act), including a drug trafficking crime (as defined

                                    1167
Interim Decision #3422


in section 924(c) of title 18, United States Code).” Consideration of the
appeal before us warrants a brief review of the statute, the rationale on
which we based our analysis in Matter of L-G-, and related precedent decisions.

              A. Interpretation for Immigration Purposes

     In Matter of L-G-, 21 I&N Dec. at 96, we concluded that a conviction
for simple possession of a controlled substance, which was classified as a
felony under Louisiana state law and was not analogous in substance to a
federal offense punishable under the Controlled Substances Act, did not
constitute an aggravated felony. We reasoned that to constitute an aggravated felony under section 101(a)(43) of the Act, a state controlled substance
conviction for an offense that had no demonstrated nexus to illicit trafficking in drugs, as that term is commonly defined, must be analogous to an
offense defined in 

(c)(2) (1994), and must constitute a
crime that would be considered a felony under federal law. 

,
aff’g Matter of Davis, supra, Matter of Barrett, supra. As the comparable
federal offense, defined in 

(c)(2) (i.e., a single offense of
simple possession of cocaine, not involving a mixture or substance containing more than 5 grams of cocaine base), was punishable under 

(a) only as a misdemeanor, and not as a felony, we held that
the respondent’s conviction was not for a “drug trafficking crime,” as
defined in 

(c)(2), and therefore did not constitute an “aggravated felony.” See Matter of L-G-, 21 I&N Dec. at 96, 102; see also 

 (1994) (differentiating felonies and misdemeanors).
     Our holding in Matter of L-G- is based on the express language contained
in section 101(a)(43) of the Act. It also reflects policy considerations that
favor applying a uniform federal standard in adjudicating removability and
determining the immigration consequences of a conviction under the
Immigration and Nationality Act. We have followed this policy of uniformity
in our recent decisions interpreting various provisions of the Act. See Matter
of L-G-, 21 I&N Dec. at 93-96, 100-01; see also Matter of Rodriguez-Rodriguez, 

 (BIA 1999); Matter of Roldan, 

 (BIA 1999); Matter of A-P-, 

, at 475 n.6 (BIA 1999);
Matter of Punu, Interim Decision 3364 (BIA 1998). Moreover, in the context
of determining deportability for drug convictions, the Attorney General has
long favored following federal standards, rather than relying on “the vagaries
of state law.” Matter of A-F-, 

 (BIA, A.G. 1959).
     In sum, according to our interpretation in Matter of L-G-, for immigration purposes, a state drug offense that is analogous to a drug trafficking
crime under 

(c)(2) and is punishable as a felony under federal law will be deemed to constitute an aggravated felony under section
101(a)(43) of the Act. A state drug offense that is not analogous to a feder-

                                    1168
                                                                  Interim Decision #3422


al felony will not be deemed to constitute an aggravated felony. As discussed below, we continue to believe that this is the proper interpretation of

(c)(2) for immigration purposes.

          B. Interpretation for Sentence Enhancement Purposes

     In United States v. Hinojosa-Lopez the Fifth Circuit addressed the
phrase “aggravated felony” as applied in the context of the sentencing phase
of a criminal prosecution. The defendant in that case, who previously had
been deported based on a state felony conviction for a controlled substance
violation, was convicted of unlawful reentry to the United States in violation of sections 276(a) and (b)(2) of the Act, 

(a), (b)(2)
(1994).4 The issue before the Fifth Circuit was the propriety of a 16-point
sentence enhancement under § 2L1.2(b)(2) of the United States Sentencing
Guidelines (referring to a drug trafficking crime that constitutes an aggravated felony as defined in section 101(a)(43) of the Act).
     The Fifth Circuit concluded that, for purposes of criminal sentence
enhancement, a state drug conviction is properly deemed a “felony” if the
offense is classified as a felony under the law of the relevant state, even if
the same offense would be punishable only as a misdemeanor under federal law. United States v. 

 at 694 (citing United
States v. Restrepo-Aguilar, 

 (1st Cir. 1996)). In reaching
this conclusion, the Fifth Circuit considered the reasoning of other circuits that have addressed the language of section 101(a)(43) of the Act,
relating to a “drug trafficking crime,” as incorporated in the criminal sentencing guidelines for sentence enhancement purposes. See U.S.S.G. §
2L1.2(b)(2), appl. n.7; United States v. 

 (citing United States v. Restrepo-Aguilar, supra; United States v. Briones-Mata, 

 (8th Cir. 1997)); see also United States v.
Polanco, 

 (2d Cir. 1994).
     With the exception of the Second Circuit, whose decisions are discussed
below, the other circuits that have interpreted the language found in section
101(a)(43)(B) of the Act in the criminal sentence enhancement context have



     4
       The United States Sentencing Guidelines in U.S.S.G. § 2L1.2(b)(2) define an aggravated felony as follows:
   “Aggravated felony,” as used in subsection (b)(2), means . . . any illicit trafficking in
   any controlled substance (as defined in 

), including any drug trafficking crime as defined in 

(c)(2) . . . . The term “aggravated felony”
   applies to offenses described in the previous sentence whether in violation of federal
   or state law . . . .
18 U.S.C.A. ch.2, § 2L1.2(b)(2), appl. n.7 (West 1996).

                                            1169
Interim Decision #3422


not yet interpreted such language for immigration purposes. See United States
v. 

 These other circuits followed one of two courses.
     Some have qualified their interpretation of what constitutes a “drug
trafficking crime” in the context of applying the sentencing guidelines, suggesting that a different interpretation might be appropriate for immigration
purposes. See United States v. 

; United
States v. Restrepo-Aguilar, supra, at 366. Some simply have not referred to
the existence of the issue in the immigration context, or addressed the
Board’s decision in Matter of L-G-, at all. See, e.g., United States v. Simon,

, 1272 (11th Cir.), cert. denied, 

 (1999); United
States v. Garcia-Olmedo, 

 (9th Cir. 1997); United
States v. Cabrera-Sosa, 

 (10th Cir.), cert. denied, 

 (1996). The Fifth Circuit stands among those courts that have not
addressed the interpretation of the term “drug trafficking crime” in the
immigration context.
     As discussed below, the Second Circuit is the only circuit to have
addressed the relevant statutory language, both in the context of reviewing
a criminal sentence enhancement determination and in the context of
reviewing an adjudication of deportability for immigration purposes. The
Second Circuit concluded explicitly that “decisions interpreting ‘aggravated felony’ in the sentencing context did not affect its interpretation of the
same term in that case.” United States v. 

 (citing Aguirre v. INS, supra, at 317 n.1).


           IV. ANALYSIS AND RESOLUTION OF THE APPEAL

     We hold that the Fifth Circuit’s decision in United States v. Hinojosa-

 does not require us to modify our well-established precedent,
which holds that a state felony conviction for possession of a controlled
substance that would be punishable as a misdemeanor under federal law is
not an aggravated felony conviction for immigration purposes. We therefore
affirm our decision in Matter of L-G-.

                     A. Effect of the Fifth Circuit’s Decision
                        in United States v. Hinojosa-Lopez

      We adhere to the principle that we are bound to acquiesce to the controlling decisions of the federal circuit courts of appeals.5 See Matter of K-

     5
      We note that in Matter of L-G- we expressly acquiesced to the then-controlling law of the
Second Circuit, Jenkins v. INS, 

 (2d Cir. 1994). See United States v. 

 (“The BIA expressly disagreed with our decision in Jenkins, and stated that it
would follow our holding only in deportation and asylum cases arising in the Second Circuit.”).

                                            1170
                                                                  Interim Decision #3422


S-, 

 (BIA 1993); Matter of Anselmo, 

 (BIA 1989). A federal agency is obligated to follow circuit precedent in cases originating within that circuit, and the appeal before us originates in the circuit in which United States v. Hinojosa-Lopez was decided.
See Singh v. Ilchert, 

 (9th Cir. 1995) (citing NLRB v.
Ashkenazy Prop. Mgmt. Corp., 

 (9th Cir.), cert. denied, 

 (1987)).
     However, in United States v. Hinojosa-Lopez the Fifth Circuit did not
rule on whether the conviction at issue would constitute an aggravated
felony for immigration purposes, as that was not the issue before the court.
Rather, the Fifth Circuit exclusively addressed criminal sentence enhancement and did not determine the applicability of our precedent decision in
Matter of L-G- in the context of immigration proceedings. While the Fifth
Circuit looked to the Second Circuit’s criminal sentence enhancement decision in United States v. 

 it made no mention of the Second
Circuit’s opinion in Aguirre v. INS, supra, which interpreted the same language differently for immigration purposes. Thus, we agree with the parties
that the Fifth Circuit’s ruling in Hinojosa-Lopez is not determinative of the
specific issue before us, as the Fifth Circuit has not yet addressed that issue.
     Moreover, in United States v. Hinojosa-Lopez the Fifth Circuit gave
significant weight to the First Circuit’s decision in United States v.
Restrepo-Aguilar, supra. The Fifth Circuit found the First Circuit’s reasoning in “[l]ooking to the interaction between the Federal Sentencing
Guidelines and the applicable federal statutes” to be persuasive in determining that the defendant’s drug conviction was for an aggravated felony
for sentencing guidelines purposes. United States v. 

. Significantly, in United States v. Restrepo-Aguilar, supra, the First
Circuit stated:
   The recent decision of the Board of Immigration Appeals in In Re L-G- does not persuade us otherwise. The decision in L-G- did not involve any consideration of the
   aggravated felony sentence enhancement at issue here. At stake in L-G- was, instead,
   the petitioner’s right to apply for asylum and request withholding of deportation . . . .
   To be sure, the decision turned on the definition of “aggravated felony” as set forth in
   

(a)(43), which, in relevant part, is the same as the definition provided
   in application note 7 to U.S.S.G. § 2L1.2, but the relevant context was different.

United States v. Restrepo-Aguilar, supra, at 366 (emphasis added) (citation
omitted) (footnote omitted).
     Likewise, the Eighth Circuit concluded that “Aguirre [involving a petition for review of a deportation order in which the Second Circuit followed
Matter of L-G-] does not affect our interpretation of the [Sentencing]
Guidelines.” United States v. 

 at 309 n.2. Admittedly,
neither the First Circuit nor the Eighth Circuit stated definitively that it
would rule differently regarding the definition of the term “aggravated

                                            1171
Interim Decision #3422


felony” in the immigration context based on the differing purposes of the
sentencing guidelines and federal immigration law. Nevertheless, the Fifth
Circuit relied on the decisions of both circuits, each of which expressly recognized that the proper construction of the same language in a different
context might affect its interpretation of section 101(a)(43)(B) of the Act for
immigration purposes.
     We also note that the Fifth Circuit has held that the classification of a
crime as an aggravated felony for sentencing guidelines purposes is not
dependent on whether that crime can be considered an aggravated felony
for purposes of the immigration laws. See, e.g., United States v. Garcia-Rico, 

 (5th Cir. 1995) (finding that a conviction for voluntary
manslaughter occurring prior to the effective date in the immigration statute
could be considered an aggravated felony for purposes of the sentencing
guidelines), cert. denied, 

 (1995). In addition, while it has
not yet ruled on an interpretation of section 101(a)(43)(B) of the Act for
immigration purposes, the Fifth Circuit recognizes generally that different
interpretations of the same term in different contexts may be appropriate.
See Strachan Shipping Co. v. Davis, 

 (5th Cir. 1978) (recognizing that a different meaning could be accorded the same word in a statute
if the text indicates that a contrary meaning is appropriate); Chapman v.
Durkin, 

 (5th Cir. 1954) (holding that “‘we do not “make
a fortress out of the dictionary” . . . by mechanically applying definitions in
unintended contexts’” (quoting Farmers Reservoir & Irrigation Co. v.
McComb, 

 (1949) (quoting Cabell v. Markham, 

 (2d Cir. 1945))).
     Consequently, we find it reasonable to conclude that the Fifth Circuit’s
decision regarding what constitutes an aggravated felony in a sentencing
enhancement context is separate and distinct from our determination of
what the same term means for immigration purposes. We conclude that the
Fifth Circuit’s decision in United States v. Hinojosa-Lopez does not control
our determination of the appeal before us.

              B. Reasonableness of a Uniform Application
                      in the Immigration Context

     The application of section 101(a)(43)(B) of the Act in the context of
criminal sentence enhancement achieves a far different enforcement result
from that achieved by application of this section of the statute in the immigration context. In the context of federal sentence enhancement, related to
a conviction for reentry after a prior removal, what is being penalized criminally is recidivism. Matter of L-G-, 21 I&N Dec. at 98. Any prior conviction is relevant for purposes of enhancement. By contrast, in the immigration context, what is being sanctioned civilly is an existing violation of federal immigration law. A uniform application of federal sanctions related to

                                    1172
                                                       Interim Decision #3422


a particular criminal conviction is paramount in this context. Id.
     As stated above, the Second Circuit is the only circuit to have
addressed the question whether the term “felony,” as used in section
101(a)(43)(B) of the Act, can have different meanings for purposes of different applications. The answer was a clear “yes.” In particular, in Aguirre
v. INS, supra, the Second Circuit specifically considered the policy goal of
“national uniformity” in interpreting the federal immigration laws and
upheld our interpretation in Matter of L-G-. The Second Circuit reached
this result notwithstanding that the circuit already had reached a different
interpretation for criminal sentence enhancement purposes in United States
v. 

     In Aguirre v. INS, supra, the Second Circuit specifically declined to follow the First Circuit’s reasoning in United States v. Restrepo-Aguilar, supra,
which defined the term “aggravated felony” in the sentencing guidelines
context. Even more telling, in United States v. 

 the
Second Circuit followed its earlier decision in United States v. 

 finding that the defendant’s state drug conviction amounted to an
aggravated felony for sentence enhancement purposes.
     In United States v. 

 the Second Circuit was urged
to reconsider its conclusion that disparate interpretations of the language in
section 101(a)(43) of the Act relating to a “drug trafficking crime” were
appropriate, depending on whether the language was being construed for
criminal sentence enhancement purposes or for immigration purposes. The
circuit court recognized that while a term used in different portions of a single act generally is construed as having the same meaning, exceptions to the
general rule exist where the subject matter to which the words refer, the
places they are used, or the conditions under which they are used are not the
same. See Atlantic Cleaners & Dyers, Inc. v. United States, 

 (1932). Thus, the Second Circuit expressly concluded that the phrase
“any felony” in 

(c)(2), which is found both in the sentencing guidelines and in section 101(a)(43)(B) of the Act, may be interpreted
differently, according to whether it is being interpreted for purposes of
applying the sentencing guidelines or enforcing the terms of the
Immigration and Nationality Act. United States v. 

.
     We find the reasoning of the Second Circuit in United States v. Pornes-Garcia persuasive. The Second Circuit’s differentiation between the sentence enhancement and immigration contexts provides support for our
existing interpretation of the statutory language regarding what constitutes
a “drug trafficking crime” that is punishable as a felony for immigration
purposes. Although United States v. Pornes-Garcia was decided after the
Fifth Circuit issued its decision in United States v. Hinojosa-Lopez, the
Fifth Circuit did not differ with the Second Circuit’s earlier interpretation of
the relevant language in Aguirre v. INS, supra, which formed the predicate

                                     1173
Interim Decision #3422


for the Second Circuit’s decision in United States v. Pornes-Garcia.
     We do not intend by this decision to suggest that the decisions of the
federal courts of appeals in criminal sentence enhancement cases do not
provide relevant and valuable guidelines that may inform our interpretation
of the federal immigration laws in other circumstances. However, we have
spoken consistently with regard to the question presently before us for nearly a decade. Matter of L-G-, 

; Matter of 

Moreover, the only circuit court of appeals to have interpreted the relevant
provision for immigration purposes agrees that whether a state conviction is
considered an aggravated felony in relation to immigration consequences is
best determined according to a uniform rule based on federal standards.
United States v. 

 Aguirre v. INS, supra.
     Our reasoning that the phrase “any felony” in 

(c) is not
intended to include an offense that is classified by a state as a felony, unless
it would constitute a felony under federal law, is entirely consistent with and
meaningfully effectuates such uniformity. To hold otherwise would result in
widely disparate consequences for similarly situated aliens based solely on
differing state classifications of identical drug offenses.6 We do not believe
that such a result was intended by Congress. See Matter of L-G-, 21 I&N
Dec. at 100.
     Consequently, we conclude that, notwithstanding the interpretation
set forth by the court in United States v. Hinojosa-Lopez in relation to sentence enhancement, Matter of L-G- remains good law. In the absence of
any specific Fifth Circuit precedent requiring us to look to state law for
the purpose of determining when a state drug conviction falls within the
definition of an aggravated felony contained in section 101(a)(43)(B) for
immigration purposes, we will continue to follow our precedent in Matter
of L-G-.
     Applying this conclusion to the instant matter, we find that the respondent’s conviction for simple possession of cocaine under Texas law does not
specifically indicate that he was in possession of more that 5 grams of
“cocaine base.” Therefore, we find that the respondent’s conviction for simple possession of a controlled substance would constitute a misdemeanor
under the federal law, and that the respondent was not convicted of an
aggravated felony within the meaning of section 101(a)(43)(B) of the Act.
Accordingly, the respondent is not subject to removal under section
237(a)(2)(A)(iii) and is not statutorily ineligible to seek the relief of cancellation of removal.



     6
       As we noted in Matter of L-G-, supra, at 95-96, the disparate treatment that would result
could be either beneficial or detrimental to the alien, depending on the state law involved. See
also Matter of L-G-, 21 I&N Dec. at 105 (Holmes, concurring).

                                            1174
                                                                 Interim Decision #3422


                                   V. CONCLUSION

     Under Matter of L-G-, a controlled substance violation must be analogous to a felony as defined according to 

 before it will fall
within the class of offenses that are deemed to constitute “drug trafficking
crimes” under section 101(a)(43)(B) of the Act. The Fifth Circuit’s decision
in United States v. Hinojosa- Lopez and the other sentence enhancement
cases cited were not decided in the context of immigration proceedings,
where a uniform federal approach is critical. Upon consideration of the distinctions between the immigration laws and the sentencing enhancement
provisions at issue, we reaffirm the reasoning underlying our conclusions in
Matter of L-G-.
     We will sustain the respondent’s appeal of the Immigration Judge’s
finding that he was convicted of an aggravated felony within the meaning
of section 101(a)(43)(B) of the Act. Therefore, we do not find that the
respondent is statutorily ineligible for relief from removal on that basis.
Accordingly, we will remand the record to the Immigration Judge for consideration of any applicable forms of relief.
     ORDER: The appeal is sustained.
     FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion.

DISSENTING OPINION: Lauri Steven Filppu, Board Member, in which
Lori L. Scialabba, Vice Chairman; Fred W. Vacca, Michael J. Heilman,
Patricia A. Cole, Philemina M. Jones, Lauren R. Mathon, and Anthony C.
Moscato, Board Members, joined

     I respectfully dissent because I consider the decision of the United
States Court of Appeals for the Fifth Circuit in United States v. Hinojosa-Lopez, 

 (5th Cir. 1997), to be controlling precedent.1
     This case turns on the meaning of a criminal statute, 

(c)(2) (1994), defining a “drug trafficking crime” for criminal law purposes. This controlling criminal statute has been directly cross-referenced
in the definition of an “aggravated felony” in the immigration laws. Section



      1
        A number of courts agree with the statutory analysis contained in Hinojosa-Lopez.
United States v. Pornes-Garcia, 

 (2d Cir.), cert. denied, 

 (1999);
United States v. Simon, 

 (11th Cir.), cert. denied, 

 (1999); United
States v. Briones-Mata, 

 (8th Cir. 1997); United States v. Cabrera-Sosa, 

 (10th Cir.), cert. denied, 

 (1996); United States v. Restrepo-Aguilar, 

 (1st Cir. 1996). The United States Court of Appeals for the Ninth Circuit, however, does
not. See United States v. Zarate-Martinez, 

 (9th Cir.), cert. denied, 

 (1998); United States v. Garcia-Olmedo, 

 (9th Cir. 1997).

                                            1175
Interim Decision #3422


101(a)(43)(B) of the Immigration and Nationality Act, 

(a)(43)(B) (1994). This cross-referenced criminal statute is the same
one that was authoritatively construed in United States v. 

 The ruling in Hinojosa-Lopez is controlling precedent, notwithstanding the Immigration and Naturalization Service’s position, because the
relevant “aggravated felony” definition requires us to apply the criminal law
and Hinojosa-Lopez specifies the meaning of the critical criminal law for
cases arising in the Fifth Circuit.
     This is not a case where similar or identical statutory language appears
in two provisions and can be assigned different meanings because of different contexts. Rather, this is a case where the court in Hinojosa-Lopez
construed the identical, cross-referenced statute that we are required to
apply. Nevertheless, the majority refuses to follow the criminal law meaning of this cross-referenced federal criminal statute, as set forth by the governing federal court charged with applying federal criminal law. In so
doing, the majority disregards and defeats the very purpose behind legislation employing cross-referenced provisions. The majority fails to explain
why Congress directed us to apply a federal criminal statute in the enforcement of the immigration laws if it did not expect us to apply the meaning
the statute has in criminal law.


                     I. THE FACTS AND THE ISSUE

     The respondent, a lawful permanent resident since 1987, has one criminal conviction. In 1997, he pled guilty in Texas to possession of cocaine
and was sentenced to 5 years’ imprisonment. His offense is a felony in
Texas. See 

(d) (West 1997). It
would have been a misdemeanor under corresponding federal law. See 

(a) (1994) (providing that a first offense for simple possession
of a controlled substance is a federal misdemeanor, except when it involves
more than 5 grams of a mixture or substance containing “cocaine base”).
     The Immigration Judge denied all requests for relief after finding the
respondent subject to removal, both as an alien convicted of a controlled
substance violation pursuant to section 237(a)(2)(B)(i) of the Act, 

(a)(2)(B)(i) (Supp. II 1996), and as an alien convicted of an aggravated felony pursuant to section 237(a)(2)(A)(iii) of the Act. On appeal, the
respondent only contests the “aggravated felony” determination and the
denial of relief.
     The issue in dispute is whether a conviction for a state law drug felony
amounts to a conviction for an “aggravated felony” under section
101(a)(43)(B) of the Act, when the offense would only have been a misdemeanor under federal criminal law. The reading we gave to the pertinent
statutory language in Matter of L-G-, 

 (BIA 1995), conflicts

                                    1176
                                                                   Interim Decision #3422


with the reading given by the Fifth Circuit in United States v. Hinojosa-

     The resolution of this issue depends on whether we apply the interpretation of criminal law set forth in Matter of L-G- or the one contained in
Hinojosa-Lopez to cases arising within the Fifth Circuit. This Board has
historically followed the decisions of a circuit court in cases arising in that
particular circuit. See Matter of Anselmo, 

 (BIA 1989);
accord Matter of Punu, 

 (1998). Moreover, the federal
courts are the ultimate interpreters of federal criminal law, including what
constitutes a drug trafficking crime under 

(c)(2).2


                           II. THE MAJORITY’S RULING

     The majority asserts that there is a difference in the meaning of a “drug
trafficking crime” as it applies for “immigration purposes” and for “criminal sentence enhancement purposes.” It arrives at this conclusion not by
any examination of the statutory language and the contexts in which it is
used, but rather by reference to Second Circuit case law (which supports
dual constructions), to Matter of L-G- itself, and to the policy considerations that have been discussed in both Matter of L-G- and the Second
Circuit’s decisions. It is necessary for the majority to avoid any meaningful
focus on the language of the statute and the context in which that language
is used, because the statute actually forecloses the majority’s policy-oriented result.
     The majority does, however, acknowledge two important points. First,
the majority admits that the Fifth Circuit in United States v. Hinojosa-Lopez
interpreted the identical provision that is before us, namely, section
101(a)(43) of the Act. Matter of K-V-D-, Interim Decision 1163, at 1164
(BIA 1999). The critical issue before us is the one that was resolved in
Hinojosa-Lopez, specifically, the meaning of a “drug trafficking crime” as
defined in 

(c)(2). In this respect, the majority also correctly notes that the substantive language in the 1995 United States Sentencing
Guidelines (“U.S.S.G.”) that was before the court in Hinojosa-Lopez is the
same as appears in the “aggravated felony” definition before us. Matter of
K-V-D-, supra, at 1164 n.2, 1169 n.4.
     Second, the majority states that its construction of the law is not simply a ruling that exempts certain aliens from being found deportable for



     2
       It is not necessary to address whether to overrule Matter of L-G-, supra, as the Service
requests, in order to resolve this case; simple adherence to circuit court precedent dictates the
outcome.

                                             1177
Interim Decision #3422


aggravated felony convictions, but that it is a ruling resulting in both the
beneficial and detrimental treatment of different aliens, depending on how
the state law might impact their cases under either the approach contained
in Matter of L-G- or the approach in Hinojosa-Lopez. Matter of K-V-D-,
supra, at 1174 n.6. This is consistent with the Service’s argument that we
should revisit both Matter of L-G-, supra, and Matter of Davis, 

 (BIA 1992), because an alien with two state misdemeanor drug
convictions should not, in the Service’s judgment, be deemed to have an
aggravated felony conviction. See United States v. Gomez-Ortiz, 

 (D.R.I. 1999) (finding that a Massachusetts misdemeanor
conviction for possession with intent to distribute marijuana was not a “drug
trafficking crime,” because it was a misdemeanor under state law). In other
words, certain aliens may be better off under the construction of the criminal law contained in Hinojosa-Lopez, such as those with two state misdemeanor convictions for simple drug possession.

          A. The Statute Does Not Permit Two Meanings of a
                      “Drug Trafficking Crime”

     The term “aggravated felony” includes “a drug trafficking crime (as
defined in section 924(c) of title 18, United States Code).” Section
101(a)(43)(B) of the Act. A “drug trafficking crime” in 

(c)(2), in turn, includes “any felony punishable under the Controlled
Substances Act (

 et seq.).” The Controlled Substances Act
further defines a “felony” to include “any Federal or State offense classified
by applicable Federal or State law as a felony.” 

(13) (1994).
     State drug offenses can be drug trafficking crimes, and hence aggravated felonies, by reference solely to the terms of section 101(a)(43)(B) and
the cross-referenced criminal law provisions. Indeed, this case hinges on the
meaning of “any felony” in the definition of a “drug trafficking crime” in

(c)(2), as that is where the split lies between the criminal
case law and our own administrative case law. Consequently, the proper
inquiry for us is whether the meaning of a “drug trafficking crime” can vary
depending on whether the issue arises in a criminal sentence enhancement
case or a civil immigration case.
     The answer is readily apparent. Section 101(a)(43)(B) of the Act plainly tells us to apply the criminal law meaning of a “drug trafficking crime,”
because it directs us to apply the criminal law definition in 

(c). The statutory cross-reference to a specific criminal law provision
simply cannot be ignored or circumvented.
     The fact that Congress cross-referenced a criminal statute into the
immigration laws does not give the majority license to create an interpretation that is independent of the meaning the statute bears in the criminal law.
On occasion, we may be called upon to apply an ambiguous cross-refer-

                                    1178
                                                       Interim Decision #3422


enced criminal provision before the criminal courts have cleared up the
ambiguity. This is what happened, at least to a significant extent, when we
decided Matter of L-G-, supra.
     Once the criminal courts resolve the ambiguity, however, we are not
free to adhere to a contrary interpretation merely because we developed the
contrary reading first. By doing so, we are no longer applying the actual
criminal law that the statutory cross-reference requires. Rather, we are
applying a rule that we once, mistakenly, thought was the criminal law.
Persisting in such a mistaken understanding of criminal law directly violates the statutory direction, contained in the cross-reference itself, that we
apply the real criminal law.
     The Fifth Circuit has clarified the ambiguity in 

(c)(2)
for purposes of cases arising within that circuit. In other words, it has specified the meaning of the criminal law that is cross-referenced for our use in
section 101(a)(43)(B). The whole purpose of the statutory cross-reference
is defeated by the majority’s refusal to apply the law that is cross-referenced.
     The majority does not declare that Hinojosa-Lopez wrongly decided
the meaning of federal criminal law. Most importantly, the majority does
not contend that Congress actually enacted two versions of 

(c)(2), one for use in criminal sentencing cases and one for use in civil
deportation and removal cases. Yet, the majority’s ruling in effect means
that there are two versions of 

(c)(2), the one Congress
enacted in the criminal law and the one the majority prefers would have
been enacted.

               B. The Distinction Between Sentencing and
                    Immigration Cases Is Artificial

     Following the lead of the Second Circuit, the majority rules that “the
phrase ‘any felony’ in 

(c)(2) . . . may be interpreted differently, according to whether it is being interpreted for purposes of applying
the sentencing guidelines or enforcing the terms of the Immigration and
Nationality Act.” Matter of K-V-D-, supra, at 1173. What the majority fails
to explain is that there is no viable distinction between the sentencing
guidelines and the Act for purposes of this case. In fact, the sentencing
guidelines merely reflect and respond to the criminal provisions of the
Immigration and Nationality Act itself.
     The critical language of each statute of consequence, both civil and
criminal, was enacted by the same Congress in the same piece of legislation, specifically, in the Anti-Drug Abuse Act of 1988, 

 Stat. 4181 (“ADAA”). The ADAA amended the definition of a “drug
trafficking crime” in 

(c)(2) to appear as it does today.
ADAA § 6212, 102 Stat. at 4360. The definition of an aggravated felony

                                    1179
Interim Decision #3422


was first added to the Immigration and Nationality Act by the ADAA, and
included “any drug trafficking crime as defined in section 924(c)(2) of title
18.” ADAA § 7342, 102 Stat. at 4469-70. The aggravated felony ground of
deportation was added to the Act. ADAA § 7344, 102 Stat. at 4470-71.
Importantly, the ADAA added an enhanced criminal penalty provision to
section 276 of the Act, 

 (1994), to apply, for example, to an
alien convicted of illegal reentry after deportation “whose deportation was
subsequent to a conviction for commission of an aggravated felony.”
ADAA § 7345, 102 Stat. at 4471. This is the provision, as later amended,
that led to the conviction and sentence in United States v. Hinojosa-Lopez.
     Nothing in this original statutory scheme suggests that different substantive meanings of a “drug trafficking crime” or of an “aggravated felony”
apply to the civil and criminal provisions of the immigration laws. While
there have been subsequent amendments to the aggravated felony definition, to the grounds of deportation, and to the criminal penalty provisions of
section 276(b) of the Act, the pertinent substantive language of the ADAA
has been carried forward and appears today in all of these provisions. In this
respect, the majority’s reliance on United States v. Garcia-Rico, 

(5th Cir.), cert. denied, 

 (1995), to support its ruling is
unfounded. That case involved an effective date issue, not different substantive meanings for the identical statutory provision.
     Our decision in Matter of A-A-, 

 (BIA 1992), explains
that different effective date provisions can result in different applications of
a uniform “aggravated felony” definition. But in Matter of A-A-, we correctly understood that the same substantive definition applied to both the
civil and criminal provisions of the Immigration and Nationality Act. 

. Indeed, the opening clause of section 101(a) of the Act mandates
as much, as it specifies that the same definition is to be “used” throughout
the “Act.”
     Consequently, the same “aggravated felony” definition applies both to
the civil deportation provisions affecting the respondent here and to the criminal provisions of section 276 of the Act that led to the conviction and
enhanced sentence for the alien in Hinojosa-Lopez. When Congress wanted
different definitions of a term to apply to separate portions of the Act, it clearly so specified. See section 101(b)(1) of the Act (defining the term “child” for
purposes of titles I and II of the Act); section 101(c)(1) of the Act (defining
“child” for purposes of title III of the Act). The majority does not, and cannot, explain how it ignores the statutory command of section 101(a).
     The court in Hinojosa-Lopez did address the aggravated felony definition contained in application note 7 to the United States Sentencing
Guidelines, in U.S.S.G. § 2L1.2(b)(2). 18 U.S.C.A. ch. 2, § 2L1.2(b)(2),
appl. n.7 (West 1996). However, that definition tracked in substance (and
with very minor wording variation) the aggravated felony definition in section 101(a)(43) of the Act prior to its amendment by section 222 of the

                                      1180
                                                                Interim Decision #3422


Immigration and Nationality Technical Corrections Act of 1994, 

, 

, 4320 (enacted Oct. 25, 1994).
Application note 7 in 1995 mirrored section 101(a)(43) because this part of
the sentencing guidelines is based on section 276 of the Act. This is confirmed by amendments to the sentencing guidelines. Currently, application
note 1 to U.S.S.G. § 2L1.2(b)(1) includes the following language:
“‘Aggravated felony’ is defined at 

(a)(43) without regard to
the date of conviction of the aggravated felony.” 18 U.S.C.A. ch. 2, §
2L1.2(b)(1), appl. n.1 (West 1997).
     The overall structure of the Immigration and Nationality Act, the structure of the legislation that introduced these provisions (the ADAA), and the
statutory source of the sentencing guidelines applied in Hinojosa-Lopez
forecloses the argument that different substantive meanings can apply to the
identical language of either a “drug trafficking crime” or an “aggravated
felony,” depending on context. For purposes of the case before us, there is
no substantive difference between the 1995 sentencing guidelines and the
statutory definition of an “aggravated felony,” as is readily apparent from a
comparison of application note 7 with section 101(a)(43) of the Act prior to
its 1994 amendment. The majority is simply incorrect in suggesting that
there is a distinction.

                      C. Rules of Statutory Construction

     The Supreme Court has stated that “[a] term appearing in several places
in a statutory text is generally read the same way each time it appears” and
that there is “even stronger cause to construe a single formulation . . . the
same way each time it is called into play.” Ratzlaf v. United States, 

 (1994). This rule of construction may yield if
  there is such variation in the connection in which the words are used as reasonably to
  warrant the conclusion that they were employed in different parts of the act with different intent. Where the subject matter to which the words refer is not the same in the
  several places where they are used, or the conditions are different, or the scope of the
  legislative power exercised in one case is broader than that exercised in another, the
  meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.

Atlantic Cleaners & Dyers, Inc. v. United States, 

 (1932);
see also Sorenson v. Secretary of Treasury, 

 (1986) (stating that the normal rule that identical words have the same meaning may be
overcome if they “‘are found in such dissimilar connections as to warrant
the conclusion that they were employed in the different parts of the act with
different intent’” (quoting Helvering v. Stockholms Enskilda Bank, 

 (1934))).

                                          1181
Interim Decision #3422


     Congress cross-referenced a “drug trafficking crime” only once in the
Immigration and Nationality Act, in section 101(a)(43)(B). Consequently,
a “drug trafficking crime” cannot bear different meanings within the confines of section 101(a)(43)(B) itself. There can be no “variation” or different “purpose” in how a “drug trafficking crime” is used in “different parts
of the act,” within the meaning of Atlantic Cleaners & Dyers, Inc. v. United
States, supra, as it is not used in different parts of the Act.
     The term “aggravated felony” is used throughout the Act. But it is a
defined term that carries the same meaning throughout the entire Act. See
INS v. Hector, 

 (1986) (noting that the court could not
adopt a “functional approach” to the meaning of the term “child” in the
Act, when the statutory definition did not authorize such an approach);
Fiallo v. Bell, 

 (1977) (stating that the court cannot
substitute its policy preference for the line drawn by Congress in a statutory definition).
     If this were not enough, it was also the same Congress in the same
piece of legislation that enacted the various provisions pertaining to the
issues before us. The ADAA reflects that Congress adopted a comprehensive scheme to deport aliens convicted of aggravated felonies, to bar
them from certain forms of relief, and to enhance criminal penalties
should they return without prior authorization. The principle that individual sections of a single statute should be construed together “certainly makes the most sense when the statutes were enacted by the same legislative body at the same time.” Erlenbaugh v. United States, 

 (1972).
     The majority’s reliance on Strachan Shipping Co. v. Davis, 

 (5th Cir. 1978), and Chapman v. Durkin, 

 (5th Cir. 1954),
is misplaced. These decisions are simply consistent with the general principle that different interpretations may be appropriate, if the text of the
particular statute so indicates. The majority cannot properly rely on these
Fifth Circuit decisions when it fails to examine the text of the statute and
to explain why that text actually allows different readings of the identical
provision.

               D. Reliance on Policy Considerations and
                         Second Circuit Law

    Both the majority and the respondent rely heavily on the Second
Circuit, as it specifically allows conflicting interpretations. Compare
Aguirre v. INS, 

 (2d Cir. 1996) (abandoning contrary circuit
precedent and following the reading of a “drug trafficking crime” set forth
in Matter of L-G- in the deportation context) with United States v. Pornes-Garcia, 

 (2d Cir.) (distinguishing Aguirre and returning to
original circuit construction of a “drug trafficking crime” in the criminal

                                   1182
                                                                   Interim Decision #3422


sentence enhancement context), cert. denied, 

 (1999).3
     The Second Circuit also cited Atlantic Cleaners & Dyers, Inc., in making its distinction between criminal sentence enhancement cases and deportation cases. United States v. 

 In Pornes-Garcia, the
court stated that its own concern “for uniform application of immigration
laws and this country’s commitment to providing asylum militated in favor
of adopting the BIA’s construction” in the deportation context, while its
criminal sentencing interpretation of a drug trafficking crime accords with
congressional intent. 

.
     Neither the Second Circuit nor the majority, however, focuses on the
language of the statute to demonstrate how a “drug trafficking crime” or an
“aggravated felony” can be said to be used in different ways, such that different meanings can be ascribed in the criminal and civil deportation contexts. It is not clear how the Second Circuit’s concern or our own concern
for nationwide uniformity, or our nation’s general commitment to providing
asylum, is sufficient reason to depart from the intent of the statute, as
gleaned from its language and the context in which it is employed.
     The statute itself is the best source for ascertaining the impact of our
nation’s asylum laws. In this respect, both former section 208(d) of the Act,

(d) (1994), and current section 208(b)(2)(B)(i), 

(b)(2)(B)(i) (Supp. II 1996), bar asylum to aliens convicted of aggravated felonies. Although this asylum bar was enacted subsequent to the
ADAA, nothing in these asylum provisions indicates that the meaning of a
“drug trafficking crime,” or of an “aggravated felony” in general, is different for asylum applicants than it is for criminals convicted under section
276 of the Act.
     The Second Circuit, the majority, and the respondent advance various
policy concerns that support the reading given to the statute in Matter of L-
G-, including the desirability of our adhering to our own past precedent.
The Supreme Court, however, has said that policy considerations cannot
override the meaning of statutory language, except to the extent that adherence to the text and structure of the statute would lead to a result so bizarre
that Congress could not have intended it. Central Bank of Denver, N.A. v.
First Interstate Bank of Denver, N.A., 

 (1994) (citing
Demarest v. Manspeaker, 

 (1991)); see also Fiallo v. 

 (noting that a court cannot substitute its judgment for the pol-


      3
        On the other hand, the majority’s reliance on United States v. Restrepo-Aguilar, supra,
and United States v. 

 is ambitious. Neither case supports the construction of the criminal law set forth in Matter of L-G- or declares that two interpretations might
be proper. The First Circuit in Restrepo-Aguilar actually was critical of the reasoning in
Matter of L-G-, and simply indicated that it need not decide whether the statute could, in
principle, bear conflicting meanings.

                                             1183
Interim Decision #3422


icy adopted by Congress in a statutory definition). Neither the Second
Circuit, the majority, nor the respondent explains how reference to state law
classifications, as in Hinojosa-Lopez, leads to a result so bizarre that
Congress could not have intended it.
     The majority’s fundamental error may lie in confusing different “policy” considerations with different “statutory contexts.” The majority
appears to have equated the two. Assessing whether identical language may
be given different readings requires an examination of the statutory setting
in which the language is used. The context is the statutory context, not the
policy considerations that individual adjudicators believe appropriate.
Atlantic Cleaners & Dyers, Inc. v. United States, supra, at 433 (stating that
determining different purposes in the use of statutory language is “to be
arrived at by a consideration of the language in which those purposes are
expressed, and of the circumstances under which the language was
employed”).
     The statutory context plainly tells us that the same meaning exists for
the term “aggravated felony” throughout the Immigration and Nationality
Act. The term does not have a different meaning depending on whether it is
encountered in a provision affecting deportability, a provision affecting
relief from removal, a provision affecting detention, or a provision affecting
criminal sentencing, even though we may perceive different “policy” considerations that bear on each of these different statutory contexts.


        III. THE RESPONDENT’S SEPARATE CONTENTIONS

                          A. Chevron Deference

     The respondent argues that it is permissible to have conflicting constructions of the same statute within a circuit by virtue of the decision in
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1984). Chevron, however, stands for the more limited proposition that the courts should follow an agency’s construction of ambiguous
provisions in the statute the agency is charged with administering. See, e.g.,
INS v. Aguirre-Aguirre, 

 (1999) (stating that deference
is owed where the court “confronted questions implicating ‘an agency’s
construction of the statute which it administers’”). In such situations,
Chevron means that the agency’s reading of the statute is the one and only
reading. Chevron does not stand for the principle that a single statutory provision may receive two conflicting interpretations, one being the agency’s
reading in cases arising through the agency’s process and the other being a
court’s reading in cases coming first before the judiciary.
     Importantly, any ambiguity here does not stem from the immigration
laws. It arises from the language of 

(c), a federal criminal

                                    1184
                                                       Interim Decision #3422


law statute, not administered by any agency, but by the federal criminal
courts. The determinative question in the respondent’s case and in
Hinojosa-Lopez is the meaning of “any felony” in § 924(c)(2). We construed the reference to “any felony” to be a reference to the classification of
offenses in 

(a) (1994). Matter of L-G-, supra, at 93-95.
The Fifth Circuit in Hinojosa-Lopez construed it, in keeping with similar
cases from other circuits, by reference to 

(13). Any effect
of the penultimate sentence in section 101(a)(43) of the Act is merely reinforcing of, but not necessary to, the result reached in Hinojosa-Lopez, as §
802(13) specifically applies to offenses under state law.
     Thus, this case turns on the resolution of strictly a criminal law ambiguity. An agency’s interpretation of a criminal statute is not entitled to
Chevron deference. In Adams Fruit Co. v. Barrett, 

 (1990), the
Supreme Court explained that Chevron deference did not extend to a judicially enforceable portion of a statute that the agency otherwise administered. The congressionally mandated role for the Department of Labor in
administering the statute there did not “empower the Secretary to regulate
the scope of the judicial power vested by the statute.” 

. Quoting
from Federal Maritime Comm’n v. Seatrain Lines, Inc., 

(1973), the Court further stated “‘that an agency may not bootstrap itself
into an area in which it has no jurisdiction.’” 

 The Board clearly has no
jurisdiction over criminal cases, let alone cases dealing with sentence
enhancements.
     The Court in Adams Fruit Co. v. 

, cited with
approval the concurring opinion in Crandon v. United States, 

(1990) (Scalia, J., concurring in judgment). In Crandon, the concurring
opinion stated that Chevron deference did not apply when the “law in question, a criminal statute, is not administered by any agency but by the
courts.” 

.

                           B. Other Contentions

    The respondent argues that Congress has approved the interpretation in
Matter of L-G-, because it has legislated several times since issuance of that
decision without expressing disagreement. The respondent notes that
Congress expressed disapproval of some of our rulings in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C
of 

 Stat. 3009-546 (“IIRIRA”), but did not object
to Matter of L-G-.
    The Supreme Court’s analysis in Almendarez-Torres v. United States, 

 (1998), disposes of this claim. In Almendarez-Torres, the Court
ruled that section 276(b) of the Act, 

(b) (1994), was a sentence enhancement provision. As explained earlier, both the “drug trafficking
crime” language of section 101(a)(43) and the first version of the sentence

                                    1185
Interim Decision #3422


enhancement provisions of section 276(b) were introduced into the Act by the
ADAA. In Almendarez-Torres, the Court declared that later immigration
enactments, including the IIRIRA, did not provide a basis for determining
how to construe the earlier enacted provisions of section 276(b).
  These later-enacted laws, however, are beside the point. They do not declare the meaning of earlier law. They do not seek to clarify an earlier enacted general term. They do
  not depend for their effectiveness upon clarification, or a change in the meaning of an
  earlier enacted statute. They do not reflect any direct focus by Congress upon the
  meaning of the earlier enacted provisions. Consequently, we do not find in them any
  forward looking legislative mandate, guidance, or direct suggestion about how courts
  should interpret the earlier provisions.

 (citations omitted).
     The respondent also contends that United States v. Nippon Paper
Industries Co., 

 (1st Cir. 1997), supports the proposition that
the exact same statute can be given different readings in the criminal and
civil contexts. But, the majority in that decision stated: “Words may
sometimes be chameleons, possessing different shades of meaning in different contexts, . . . but common sense suggests that courts should interpret the same language in the same section of the same statute uniformly, regardless of whether the impetus for interpretation is criminal or
civil.” 

 (citations omitted). Later, it declared that “[w]here, as
here, . . . the text under consideration is not merely a duplicate appearing
somewhere else in the statute, but is the original phrase in the original
setting—the pressure escalates and the case for reading the language in a
manner consonant with a prior Supreme Court interpretation is irresistible.” 

.
     The respondent also contests his removability as an alien convicted of
an aggravated felony, even if we apply the Fifth Circuit’s Hinojosa-Lopez
interpretation, alleging an element of unfair retroactivity or “mousetrapping.” This contention fails under the decisions in Moosa v. INS, 

 (5th Cir. 1999), and Matter of Punu, supra.
     The respondent lastly seeks a remand to apply for relief under Article
3 of the Convention Against Torture. United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at 197,
U.N. Doc. A/39/51 (1984). I would deny the remand request, as no evidence has been offered to support the claim.


                                 IV. CONCLUSION

    Under Fifth Circuit law, the respondent’s state felony conviction for the
offense of possession of a controlled substance constitutes a conviction for

                                          1186
                                                     Interim Decision #3422


a drug trafficking crime as defined by 

(c)(2), resulting in it
being deemed an aggravated felony conviction pursuant to section
101(a)(43)(B) of the Act. I would affirm the Immigration Judge’s decision.




                                   1187