Interim Decision #3370
In re Robert A. LETTMAN, Respondent
File A17 599 144 - Bradenton
Decided November 5, 1998
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien convicted of an aggravated felony is subject to deportation regardless of
the date of the conviction when the alien is placed in deportation proceedings on or after
March 1, 1991, and the crime falls within the aggravated felony definition.
Joan Friedland, Esquire, Miami, Florida, for respondent
David Rubman, Esquire, Chicago, Illinois, amicus curiae for respondent1
James K. Grim, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,
HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, JONES, GRANT, and
SCIALABBA, Board Members. Concurring and Dissenting Opinion: GUENDELSBERGER, joined by SCHMIDT, Chairman. Dissenting Opinion: ROSENBERG, Board Member.
FILPPU, Board Member:
In a decision dated December 12, 1996, an Immigration Judge found
the respondent deportable as an alien convicted of an aggravated felony at
any time after entry under section 241(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994).2 The respon-
1
The Board acknowledges with appreciation the thoughtful briefs which were submitted
by the respondent, the Immigration and Naturalization Service, and the American
Immigration Lawyers Association.
2
We note that the distinction between deportation and exclusion proceedings was eliminated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division
C of Pub. L. No. 104-208, 110 Stat. 3009-546 (âIIRIRAâ). Under the IIRIRA, an alien subject to a Notice to Appear issued on or after April 1, 1997, is placed in removal proceedings.
The aggravated felony ground of removal is found at section 237(a)(2)(A)(iii) of the Act, 8
U.S.C, § 1227(a)(2)(A)(iii) (Supp. II 1996) (referring to an alien who is âconvicted of an
aggravated felony at any time after admissionâ). Currently, section 241 of the Act,
8 U.S.C. §
1231 (Supp. II 1996), relates to the detention and removal of aliens ordered removed.
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dent appealed this decision. The Board dismissed the appeal on July 7,
1997. On August 4, 1997, the respondent filed a motion to reconsider. We
will grant the respondentâs motion to reconsider and issue a new decision
in this case. Upon reconsideration, the respondentâs appeal will again be
dismissed.
I. ISSUE
In his motion to reconsider, the respondent asserts that he should not be
found deportable under section 241(a)(2)(A)(iii) of the Act because his
aggravated felony conviction occurred before the November 18, 1988,
enactment date of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,
102 Stat. 4181 (âADAAâ). He relies on the language set forth in section
7344(b) of the ADAA, 102 Stat. at 4471, which limited deportability under
the former aggravated felony ground to convictions on or after November
18, 1988.
We conclude that an alien who was charged on or after March 1, 1991,
with deportability for an aggravated felony conviction is subject to deportation, regardless of the date of conviction, if the crime fits within the aggravated felony definition. In reaching this decision, we find that section 602
of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5077
(â1990 Actâ), eliminated the date restriction on the aggravated felony
ground set forth in the ADAA.
II. CASE HISTORY
The respondent is a 37-year-old native and citizen of Jamaica who
became a lawful permanent resident of the United States in 1968. On July
30, 1996, the Immigration and Naturalization Service issued an Order to
Show Cause and Notice of Hearing (Form I-221), which charged the
respondent with deportability under section 241(a)(2)(A)(iii) of the Act. It
was alleged that on January 23, 1987, the respondent was convicted in the
Circuit Court in and for Broward County, Florida, of the offense of murder
in the third degree. It is undisputed that the respondentâs original sentence
was reduced to 7 years, and that he served 2 years before being released on
probation.3
The respondent appeared before the Immigration Judge and admitted
3
The conviction documents, admitted as an exhibit by the Immigration Judge, are not in
the record before us on appeal.
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the factual allegations in the Order to Show Cause. However, he denied
deportability and filed a motion to terminate the proceedings. The respondent argued that he was not deportable as charged because his conviction
occurred before the November 18, 1988, enactment date of the ADAA. The
Service filed a statement in opposition to the motion.
At a hearing on December 12, 1996, the Immigration Judge denied the
respondentâs motion to terminate. The Immigration Judge cited changes to
the immigration law made by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,
110 Stat. 3009-546 (âIIRIRAâ), which applied the definition of an aggravated felony to the enumerated crimes regardless of conviction date. See
infra note 4. The Immigration Judge found the respondent deportable as
charged and ineligible for relief from deportation, and ordered him deported to Jamaica.
The respondent filed an appeal. The Board affirmed the decision of the
Immigration Judge in a short order dated July 7, 1997, which cited to
Matter of A-A-, 20 I&N Dec. 492 (BIA 1992).
The respondent subsequently filed this motion to reconsider. The
respondent argues that the Board erred in upholding the deportation charge
because his conviction occurred before the November 18, 1988, enactment
date of the ADAA. The Board requested supplemental briefs from the parties and amicus curiae. In our request, we asked whether section 602(c) of
the 1990 Act, 104 Stat. at 5081, had an effect on section 7344(b) of the
ADAA. The Board also asked the parties to consider Federal circuit court
law which addressed the effect of section 602(c) of the 1990 Act on the
firearms deportation ground.
On review, the Board agrees with the respondent that our previous decision should be reconsidered in light of additional legal arguments.
Therefore, the motion to reconsider will be granted. See 8 C.F.R. § 3.2(b)
(1998). We conclude that the respondent is deportable as charged, although
we employ a different analysis from that used in our previous decision. We
will first set out the relevant statutory provisions and then explain the reasoning behind our decision.
III. SECTION 7344(b)(1988) AND SECTION 602(1990)
The aggravated felony ground of deportation was added by section
7344(a) of the ADAA, 102 Stat. at 4470, and was designated as section
241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4)(B) (1988). It provided for
the deportability of an alien âconvicted of an aggravated felony at any
time after entry.â
Id. In section 7344(b) of the ADAA, it was stated that
the amendment âshall apply to any alien who has been convicted, on or
after the date of the enactment of this Act [November 18, 1988], of an
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aggravated felony.â4
The 1990 Act amended and redesignated the deportation grounds then
found at section 241(a) of the Act, 8 U.S.C. § 1251(a) (Supp. II 1990). The
aggravated felony ground was redesignated as section 241(a)(2)(A)(iii) of
the Act, but the text was identical to that in the former version found at section 241(a)(4)(B) of the Act. See Matter of Papazyan,
20 I&N Dec. 568
(BIA 1992), We focus on section 602 of the 1990 Act, which was titled
âRevision of Grounds for Deportation.â Subsection 602(a) was called
âRevised Grounds for Deportation,â and it set out the newly reorganized
deportation grounds. The section further stated as follows:
(c) SAVINGS PROVISION.âNotwithstanding the amendments made by this section,
any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, as in effect before the date of the
enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically provided in such section and subsection (d), the provisions of such
section, as amended by this section, shall apply to all aliens described in subsection
(a) thereof notwithstanding that (1) any such alien entered the United States before the
date of the enactment of this Act, or (2) the facts, by reason of which an alien is
described in such subsection, occurred before the date of the enactment of this Act.
(d) EFFECTIVE DATE.âThe amendments made by this section, and by section
603(b) of this Act, shall not apply to deportation proceedings for which notice has
been provided to the alien before March 1, 1991.
1990 Act §§ 602(c), (d), 104 Stat. at 5081-82 (emphasis added). The issue
for consideration is whether the language of section 602 eliminated the temporal limitation set forth in section 7344(b) of the ADAA (the âconvicted
on or afterâ November 18, 1988, language), We conclude that it did. We first
set out the arguments presented by the parties.
4
The ADAA set out the definition of an aggravated felony at section 101(a)(43) of the
Act, 8 U.S.C. § 1101(a)(43) (1988), It included murder, drug-trafficking crimes, and weapontrafficking violations. Subsequently, the list of crimes in section 101(a)(43) of the Act was
expanded, and various effective dates were applied to amended definitions.
Most recently, the IIRIRA specified that â[n]otwithstanding any other provision of law
(including any effective date), the term [aggravated felony] applies regardless of whether the
conviction was entered before, on, or after the date of enactment of this paragraph.â IIRIRA
§ 321(b), 110 Stat. at 628 (codified at 8 U.S.C. § 1101(a)(43) (Supp. II 1996) (final paragraph)). It also provided that the change to the aggravated felony definition would apply to
âactions taken on or after the enactment of this Act, regardless of when the conviction
occurred.â IIRIRA § 321(c), 110 Stat. at 628.
Our decision today involves a crime which fell within the original definition of an aggravated felony. We therefore have not addressed the interaction between the prospective limitations which once existed in section 101(a)(43) of the Act, and the most recent changes to the
aggravated felony definition.
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IV. THE ARGUMENTS PRESENTED
A. The Position of the Respondent
The respondent argues that the issue of deportability should be analyzed under the two-part test set out in Matter of A-A-, supra. Under this
analysis, the Board should first look at whether the respondentâs crime fits
the definition of an aggravated felony, and then examine whether the deportation ground applies. The respondent does not contest that his crime fits the
definition of an aggravated felony. However, he argues that he is not
deportable under the second prong of the test in Matter of A-A-, supra, due
to section 7344(b) of the ADAA.
In his supplemental brief, the respondent maintains that the temporal
limitation set forth in section 7344(b) of the ADAA has not been changed
by section 602 of the 1990 Act. The respondent emphasizes the absence of
any Board or judicial precedents which recognize that section 7344(b) has
been repealed. He also points to the existence of post-1990 decisions which
cite to section 7344(b) as an example of Congress placing a prospective limitation on a ground of deportability. See, e.g., Matter of A-A-, supra.
In response to the Boardâs question about the impact of section 602(c)
of the 1990 Act, the respondent places importance on the facts that section
602(c) is called a âsavings provisionâ and that the first sentence of section
602(c) specifically refers to former section 241(a) of the Act (1988) as set
out prior to passage of the 1990 Act. The respondent also reads the term
âsuch sectionâ in the second sentence of section 602(c) to refer to that same
pre-1990 Act version of section 241 of the Act. The respondent argues that
this, in turn, would preserve section 7344(b) and its time limitations and
would protect the respondent from deportation.
The respondent also argues that the Board is not bound by Matter of
Chow, 20 I&N Dec. 647 (BIA 1993), affâd sub nom. Kin Sang Chow,
12
F.3d 34 (5th Cir. 1993) (affirming Board without reference to section
602(c)). In Matter of Chow, the Board found that the temporal limitations
set out in the ADAA for the firearms deportability ground were eliminated
by the 1990 Act. The respondent argues that Matter of Chow does not dictate a result in the instant case because the 1990 Act substantively amended the firearms deportation ground, while the aggravated felony ground was
simply renumbered. The respondent does not find any circuit court decision
which would command a result different from that which he is advocating.
B. The Position of AILA
The supplemental brief provided by the American Immigration
Lawyers Association (âAILAâ) âfully adoptsâ the respondentâs arguments.
AILA also points out that it is important to recognize that, when enacting
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the ADAA, Congress made a policy determination to protect long-term residents from convictions which predated that 1988 law.
This is reflected by provisions such as section 7344(b) of the ADAA. It
is argued that absent a clear expression of congressional intent, the Board
should not reject the ADAA provisions. AILA also finds it significant that
the application of section 602(c) of the 1990 Act to the aggravated felony
deportation ground is notably absent from Board and Federal court decisions and that the most recent changes to the immigration law do not
address the 1988 temporal limitation.
C. The Position of the Service
The Service maintains that upon the passage of the 1990 Act, the 1988
ADAA temporal limitation on the aggravated felony ground was eliminated. The Service would read âsuch sectionâ in the second sentence of section
602(c) as referring to the version of section 241(a) of the Act that is set out
in the 1990 Act. Therefore, section 602(c) would support an alienâs deportability for a conviction predating November 18, 1988.
The exceptions would be if an alienâs crime did not fit the definition of
an aggravated felony, or if the alien was issued an Order to Show Cause
before March 1, 1991. The Service asserts that the Board should also find
guidance from Federal circuit court decisions which have addressed section
602(c) in the context of the firearms deportation ground.5
V. THE DECISION OF THE BOARD
As stated earlier, we conclude that an alien placed in proceedings on or
after March 1, 1991, is deportable by virtue of a conviction that falls within the definition of an aggravated felony, without regard to the prospective
limitation originally enacted in the ADAA as part of the aggravated felony
ground of deportability. We reach this conclusion for several reasons.
First, we have conducted a careful study of section 602 of the 1990 Act,
and take guidance from the statute as a whole. Second, we consider the content of the second sentence of section 602(c) of the Act, and its possible
interpretations. We have not found the respondentâs argument in this area to
be persuasive. We also examine the statutory precursor to section 602(c) of
the 1990 Act, which is former section 241(d) of the Act, 8 U.S.C. § 1251(d)
(1988). Finally, we consider the existing judicial precedent which has inter-
5
A February 22, 1991, memorandum from the Service, contained in the record, does not
discuss section 602(c) and ultimately provides no guidance on the issue before us.
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preted section 602(c) in the context of the firearms ground. We are especially influenced by Lopez-Amaro v. INS, 25 F.3d 986 (11th Cir. 1994), cert.
denied,
513 U.S. 1146 (1995), a decision issued by the controlling Federal
circuit in this case. We first discuss section 602 of the 1990 Act.
A. Section 602 of the 1990 Act
As previously mentioned, section 602(a) of the 1990 Act completely
revised the deportation grounds that were found in section 241(a) of the
Act.
The revised deportation grounds were reorganized into categories that
grouped similar deportation grounds. For example, the criminal offenses
were listed under section 241(a)(2) by the 1990 Act. The aggravated felony
ground was accordingly placed at section 241(a)(2)(A)(iii) by the 1990 Act.
The wording of the renumbered aggravated felony ground was identical to
the prior ground at section 241(a)(4)(B) of the Act (1988). However, other
deportation grounds were revised in content. See, e.g., section 241(a)(2)(C)
of the Act (1990) (including more firearms crimes than had been set out in
the previous ground at former section 241(a)(14) of the Act (1988)).
Section 602(a) of the 1990 Act was therefore intended to replace former section 241(a) (1988) in its entirety. As stated by the House-Senate
Conference Committee:
The conference substitute provides for a comprehensive revision of all the existing
grounds for exclusion and deportation, including the repeal of outmoded grounds, the
expansion of waivers for certain grounds, the substantial revision of security and foreign policy grounds, and the consolidation of related grounds in order to make the law
more rational and easy to understand.
See H.R. Conf. Rep. No. 101-955, at 119, 128 (1990), reprinted in 1990
U.S.C.C.A.N. 6784, 6793.6
B. The Reading of Section 602(c) of the 1990 Act
Section 602(c) of the 1990 Act contains two sentences under the title
âsavings clause.â The parties agree that the first sentence of section 602(c)
preserves the Serviceâs ability to charge certain aliens under deportation
grounds as they existed before the 1990 Act. That first sentence directs that
certain aliens will remain deportable if they were deportable under various
paragraphs âof section 241(a) of the Immigration and Nationality Act, as in
effect before the date of the enactment of this Act.â 1990 Act § 602(c), It is
6
Section 602(b) of the 1990 Act, 104 Stat. at 5081, was called ââConforming
Amendments to Section 241â and contained specific amendments and repeals.
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the second sentence of section 602(c) which is the subject of dispute. It states:
Except as otherwise specifically provided in such section or subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in
subsection (a) thereof notwithstanding that (1) any such alien entered the United States
before the date of the enactment of this Act, or (2) the facts, by reason of which an
alien is described in such subsection, occurred before the date of the enactment of this
Act.
1990 Act § 602(c).
We acknowledge from the outset that the second sentence of section
602(c) is difficult to decipher, even after considerable examination. In the
end, we find it to be an ambiguous provision, which is capable of different
readings, and we principally derive its meaning by looking for guidance
beyond its literal language. A number of factors, however, point to the construction of the phrase âsuch sectionâ that we adopt, namely, that âsuch sectionâ refers to section 241. We do not accept, however, that âsuch sectionâ
was meant to reference the entire limiting clause of the prior sentence so as
to refer to the version of section 241(a) âas in effect before the date of the
enactmentâ of the 1990 Act.
We read the provision in question as mandating that, except as otherwise provided in section 241, as amended in 1990, an alien is deportable for
an enumerated ground despite the date of entry or the date of the underlying facts which establish deportability. The other limitation is that the Order
to Show Cause must be issued on or after March 1, 1991, as is specified in
section 602(d), in order for the 1990 grounds to apply.
Our reading comports with our understanding that the purpose of section 602 of the 1990 Act was to completely revise the deportation grounds.
With this in mind, we find it difficult to believe that Congress intended to
revise the deportation grounds, but still have the former Act ultimately
determine deportability. In other words, it makes no sense to enact a whole
new provision, yet keep the former version perpetually intact.
Furthermore, our reading recognizes that Congress did intend for certain deportation grounds to be subject to time-based or other limitations,
and that the limitations were set out in the text of the new section 241 itself.
See, e.g., section 241(a)(2)(A)(i)(I) of the Act (1990) (permitting the deportation of an alien who commits a crime involving moral turpitude within 5
years of entry); section 241(c) of the Act (1990) (providing limitations on
the deportability of certain special immigrants); see also sections
241(a)(1)(E), (F), (G), (5) of the Act (1990). These are the provisions
referred to by the âexcept as otherwise specifically providedâ language.
We also reach our conclusion by studying alternative readings of section 602(c), and finding that they do not work as well. Specifically, we do
not agree with the respondentâs position that the second sentence of section
602(c) ultimately preserves former deportation grounds, which would
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include the temporal limitations found in the 1988 ADAA.
We first address the respondentâs assertion that the phrase âotherwise
specifically providedâ refers to the prior section 241 of the Act (1988)
because the first sentence of section 602(c) refers to section 241(a) of the
Act, âas in effect before the date of the enactment of this Act.â This reference is appropriate in the first sentence, as its language clearly serves to preserve the deportability of aliens under deportation grounds as they previously existed. However, we do not agree that this limiting clause of the first
sentence of 602(c) provides direction for how to read the phrase âsuch sectionâ in the second sentence of section 602(c). This is because the two sentences of section 602(c) are separate provisions which cover different territory. The fact that they were placed under the same title does not compel the
conclusion that they are intertwined in all respects. Furthermore, the title of
section 602(c) as a âsavings clauseâ does not mean that we must read the
disputed statutory language in a manner that to us seems contrary to the
overall thrust of the 1990 legislation.
Our reading of the second sentence of section 602(c) as a separate sentence, and not as a traditional savings clause, is buttressed by examination
of former section 241(d) of the Act (1988),7 which served to establish the
retroactive application of specified deportation grounds. See Mulcahey v.
Catalanotte, 353 U.S. 692 (1957); Lehmann v. Carson,
353 U.S. 685
(1957), It stated:
Except as otherwise specifically provided in this section [241], the provisions of this
section shall be applicable to all aliens belonging to any of the classes enumerated in
subsection (a), notwithstanding (1) that any such alien entered the United States prior
to the date of enactment of this Act, or (2) that the facts, by reason of which any such
alien belongs to any of the classes enumerated in subsection (a), occurred prior to the
date of enactment of this Act.
Section 241(d) of the Act (1988).
The language of former section 241(d) parallels the second sentence of
section 602(c) and is identical in most respects. The subsequent repeal of
section 241(d) by the Miscellaneous and Technical Amendments of 1991,
Pub. L. No. 102-232, 105 Stat. 1733 (âTechnical Amendments Actâ), confirms for us that the second sentence of section 602(c) is not intended to
serve as a savings clause, but rather was intended to serve the same function as former section 241(d).
Finally, we reject the respondentâs position because it defies common
sense. The respondent would have us read the disputed sentence as stating
7
Section 241(d) was repealed by section 307(k) of the Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733,
1756 (âTechnical Amendments Actâ) (effective as if included in the 1990 Act).
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that an alien is deportable except as otherwise provided in the 1988 version
of section 241 of the Act. The result of this would be to have a completely
revised set of deportation grounds, as set out in section 602(a), but to
nonetheless allow the prior version of the deportation grounds at section
241 to remain intact, and to set limitations for the deportability of aliens.
This reading does not make sense in light of Congressâ wholesale revision
of section 241(a) of the Act in 1990. Indeed, there would be no point in
enacting a new statutory scheme if the intent was to keep the former version
of the law in control whenever there was a difference between the old and
the new. We cannot conclude that this was the intention of Congress.8
We reject the respondentâs or any other reading of the second sentence
of section 602(c) that would essentially invalidate the comprehensive
changes made to section 241(a) by the 1990 Act.9
8
For example, when Congress revised the alien smuggling deportation ground in the
1990 Act and the 1991 Technical Amendments Act, it clearly recognized that its changes
would reach conduct predating the passage of the 1990 Act. See section 241(a)(13) of the Act
(1988) (including a âfor gainâ requirement which was deleted by the 1990 Act); section
241(a)(1)(E) of the Act (1990); see also section 241(a)(1)(E)(ii) (including specific language
addressing conduct before May 5, 1988, inserted by section 307(h)(4) of 1991 Technical
Amendments Act, 105 Stat. at 1755). Any reading of section 602(c) which preserved the old
law (including its âfor gainâ requirement) in alien smuggling cases would be in direct conflict with the language of section 241(a)(1)(E), as revised by the 1990 Act and the Technical
Amendments Act.
9
Board Member Guendelsbergerâs concurring and dissenting opinion fails to address the
historical and logical reasons we have identified for concluding that the two sentences in section 602(c) are independent. It argues instead for a basic grammatical reading of the opening
âsuch sectionâ clause of the sentence. But, it fails to explain why a grammatical reading must
include the limiting clause. Indeed, our reading is consistent with a grammatical reading, but
one in which âsuch sectionâ only refers to section 241, and not to the further limiting clause
of the prior sentence.
Furthermore, in his dissent, Board Member Guendelsberger does not dispute that reading the opening clause to be a condition on the entire sentence would generate an absurd
result, if âsuch sectionâ were meant to be a reference to the pre-1990 version of the grounds
for deportation. That reading would have the old law control whenever it differs from the new
law, making enactment of the new provisions pointless. In an attempt to avoid this absurdity,
the dissent âreordersâ the structure of the second sentence of section 602(c), and contends
that the opening clause only modifies, or âoperates as an exceptionâ to, the final ânotwithstanding clauseâ of the sentence. This effort fails in a number of respects.
At the outset, the location of the opening clause within the sentence points to its application to the sentence as a whole. The opening clause, moreover, includes a reference to subsection (d) as one of its âexceptions.â Importantly, subsection (d) did not operate âas an
exception to the notwithstanding clauseâ alone. Rather, it operated as an exception to the new
law in its entirety, by postponing the implementation of all aspects of the revised deportation
grounds until March 1, 1991. In view of the substance of subsection (d), Congress could not
logically have included a reference to it in the first clause of the sentence in question, while
at the same time intending it to impact only on the scope or operation of the ânotwithstandingâ clause.
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C. Judicial Interpretation of Section 602(c)
We find further support in our interpretation of section 602(c) in the
context of the firearms deportation ground. The language of the second sentence of section 602(c) of the 1990 Act has been addressed by the Federal
courts. In Lopez-Amaro v. INS, supra, the United States Court of Appeals
for the Eleventh Circuit addressed the question of whether the 1990 version
of the firearms deportation ground applied retroactively to the respondentâs
1983 conviction.10 The court held that the language of section 241(a)(2)(C)
of the Act (1990) applied to an alien convicted of a specified firearm crime
at any time after entry. Furthermore, and most significantly, the court stated that âCongress explicitly intended this section to apply to aliens
ânotwithstanding that . . . the facts, by reason of which the alien [is
deportable], occurred before the date of the enactment of this Act.ââ Id. at
988 (quoting 1990 Act § 602(c)), The court relied on section 602(c) to support this statement.
Therefore, the court recognized that section 602(c) of the 1990 Act
stood to override the 1988 ADAA limitation for the firearms ground.11
Further, the dissent reads its restructured sentence to incorporate pre-1990 restrictions
related to âthe date of occurrence of events upon which deportability is based.â It does not,
however, explain how its own restructured statute may be construed to carry forward only
such limitations as the effective date rule in the ADAA. The restructured statute would provide for the current deportability of an alien ânotwithstanding that . . . (2) the factsâ which
make for deportability âoccurred before the date of the enactmentâ of the 1990 Act, âexcept
as otherwise specifically provided inâ pre-1990 section 241. Not all the âfactsâ which give
rise to current deportability, but would not have given rise to deportability under the pre-1990
law, are effective date limitations. Indeed, as we explained in footnote 8, an alien smuggler
became deportable under the 1990 Act even if he or she acted without receiving any financial
âgain.â But the âfor gainâ requirement was a âfactâ that was âotherwise specifically providedâ for by the pre-1990 version of section 241 in order to establish deportability. The dissent
simply fails to explain how its restructured statute will permit the selective importation of
some portions of pre-1990 law, but not others, when the facts giving rise to deportability
would not have led to deportability under prior law. And, without this selective importation,
even the dissentâs reordered statute has the effect of overriding part â(2)â of the ânotwithstandingâ clause, by preserving all aspects of the old law in cases where the facts leading to
deportability occurred prior to the enactment of the 1990 Act.
10
The background is that section 7348(a) of the 1988 ADAA, 102 Stat. at 4473, had
expanded the types of firearm crimes that would be deportable offenses. Section 7348(b) of
the ADAA stated that â[t]he amendment made by subsection (a) shall apply to any alien convicted, on or after the date of the enactment of this Act [November 18, 1988] . . . .â In 1990,
Congress further expanded the types of crimes that would render an alien deportable for a
firearms violation, and redesignated the ground as section 241(a)(2)(C) of the Act. See 1990
Act § 602(a).
11
The only date limitation acknowledged by the court was that the Order to Show Cause
must have been issued on or after March 1, 1991, in order to have the 1990 deportation
grounds apply. See 1990 Act § 602(d).
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Other courts have used this analysis in discussing the issue of when the
firearms ground, as amended in 1990, can be applied to an earlier conviction. See, e.g., Hamama v. INS, 78 F.3d 233, 236 (6th Cir. 1996) (finding
that the application of section 241(a)(2)(C) of the Act (1990) to past crimes
reflected Congressâ intent, and was in accordance with due process restrictions on retroactivity; also citing section 602(c)); United States v.
Yacoubian,
24 F.3d 1 (9th Cir. 1994) (recognizing that section 602(c) of the
1990 Act supported the deportability of an alien who was convicted for a
firearms offense before the crime was added to the Act in 1990).
The court in Lopez-Amaro v. INS, supra, did not discuss the aggravated felony deportation ground.12 However, the courtâs analysis applies equally and supports our holding that section 602(c) also overrides the temporal
limitation on the aggravated felony ground which was set forth in the
ADAA. This is because the statutory provisions in the ADAA which dealt
with the aggravated felony and firearms grounds are identical in that they
limited each revised ground to convictions on or after November 18, 1988.
See ADAA §§ 7344(b), 7348(b). Therefore, it is logical to find that section
602(c) would equally eliminate the 1988 temporal limitations for the
firearms and the aggravated felony grounds. To conclude otherwise would
require a basis for distinguishing the application of section 602(c) to the different deportation grounds, which is not apparent upon reading either the
1988 or 1990 statutes.
The respondent has argued that the effect of section 602(c) on the
firearms ground can be distinguished from its effect on the aggravated
felony ground because the changes to the firearm ground involved âsubstantiveâ changes, while the aggravated felony ground was merely renumbered. However, there is no support for making this distinction under any
consistent reading of section 602(c). There is nothing in the language of
section 602(c) which classifies the renumbered deportation ground into separate categories. Indeed, the respondentâs argument would require two different readings of section 602(c) of the Act. That is, one reading which
referred to former section 241 of the Act (1988) (in place of âsuch sectionâ),
and one which inserted the new 1990 version of section 241 in that position.
There is no authority for reading the statute in different ways, as is proposed
by the respondent. We are therefore not convinced by this argument.13
12
Neither did the other circuit court cases which have been cited for providing section
602(c) analysis include such discussion.
13
Furthermore, it is not clear that the 1990 changes to the aggravated felony and firearms
grounds are distinguishable, as argued by the respondent. Both involved the addition of new
crimes. However, the expansion of the aggravated felony ground was done through the definitional section found at section 101(a)(43) of the Act. The new firearms crimes were included directly within the deportation ground. Therefore, both deportation grounds were significantly changed, but it was just done through a different scheme.
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D. Final Arguments
The respondent also relies on our decision in Matter of A-A-, supra, and
specifically on the discussion of section 7344(b) of the ADAA in that case.
See id. at 497, The reference there, however, is for the illustrative purpose
of showing what Congress does when it wants to set a prospective limitation. See also Matter of Gomez-Giraldo, 20 I&N Dec. 957, 959 (BIA 1995).
The case does not discuss section 602(c), or find that it cannot be held as a
basis for finding an aggravated felon deportable for a pre-1988 conviction.
The case therefore does not present an obstacle to our decision today. We
find this similarly true for Federal circuit court cases which cite to section
7344(b) of the ADAA. See, e.g., Scheidemann v. INS,
83 F.3d 1517 (3d Cir.
1996); Hamama v. INS, supra, at 236.
Our ruling today, moreover, is in conformance with the general principles set out in Matter of A-A-, supra. In Matter of A-A-, we emphasized the
importance of separately analyzing (1) when the definition applies to an
alienâs crime, and (2) when an aggravated felony can be used for deportability and as a bar to relief. In regard to the nature of his conviction, the
respondent conceded that his crime fit the definition of an aggravated
felony.14 Therefore, this prong of the test is satisfied. We also fulfill the second part of the test, because we look at the content of the deportation
ground itself to determine whether it applies to the respondent. Our examination tells us that the respondentâs conviction for an aggravated felony
does support his deportability.
Finally, as pointed out by the respondent, the Board failed to mention
section 602(c) of the Act in Matter of Chow, supra, dealing with the 1990
Act changes to the firearms ground. Indeed, we used a completely different
rationale, which is not necessary upon recognition of the effect of section
602(c) of the Act. We therefore conclude that, while Matter of Chow affords
us little guidance, it does not provide a barrier to the holding we set forth in
the instant decision.
14
The respondentâs conviction fit the aggravated felony definition under the original definition set out at section 101(a)(43) of the Act. Further, under the IIRIRA, the aggravated
felony definition is not limited by the date of a conviction. See supra note 4; see also 8 C.F.R.
§ 1.1(t) (1998) (stating that the aggravated felony definition applies to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996).
The Immigration Judge appeared to base his deportability finding on the aforementioned
IIRIRA provisions. However, these provisions are limited to the definition, and the specific
deportation ground involved needed to be further examined before deportability could be
upheld.
377
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VI. CONCLUSION
In sum, we find that section 602 of the 1990 Act dictates that any alien
who has been convicted of a crime defined as an aggravated felony, and who
was placed in deportation proceedings on or after March 1, 1991, is
deportable regardless of when the conviction occurred. The respondent is
therefore deportable as charged. He has not established any eligibility for
relief from deportation. The respondentâs appeal will accordingly be dismissed. Appropriate orders will be entered.
ORDER: The motion to reconsider is granted, and the July 7, 1997,
decision of the Board is vacated.
FURTHER ORDER: The respondentâs appeal is dismissed.
CONCURRING AND DISSENTING OPINION: John Guendelsberger,
Board Member, in which Paul W. Schmidt, Chairman, joined
I concur in the result reached by the majority decision because this
case, which arises in the jurisdiction of the United States Court of Appeals
for the Eleventh Circuit, is controlled by the holding in Lopez-Amaro v. INS,
25 F.3d 986 (11th Cir. 1994), cert. denied,
513 U.S. 1146 (1995).
Had this case arisen in a jurisdiction in which we were not bound by
existing circuit law, however, I would find that the savings clause in the second sentence of section 602(c) of the Immigration and Nationality Act of
1990, Pub. L. No. 101-649, 104 Stat. 4978, 5081 (â1990 Actâ), refers to and
saves the limitation on deportability contained in section 7344(b) of the
Anti-Drug Abuse Act of 1988,
Pub. L. No. 100-690, 102 Stat. 4181, 4471,
(âADAAâ), for convictions occurring prior to November 18, 1988. I write
separately, therefore, because I disagree with that portion of the majority
decision regarding the interpretation of the savings provision in the second
sentence of section 602(c) of the 1990 Act.
I. THE BOARD IS BOUND BY CONTROLLING
CIRCUIT LAW IN THIS CASE
In Lopez-Amaro v. INS, supra, the Eleventh Circuit addressed the effect
of section 602(c) of the 1990 Act upon section 7348(b) of the ADAA, 102
Stat. at 4473. Section 7348(b) provided that the deportation ground for conviction of possession of a firearm applied only to convictions occurring âon
or after the date of the enactment of this Act [November 18, 1988].â The
court found that the 1990 amendments replaced the former deportation
ground for firearms convictions in section 241(a)(14), 8 U.S.C. 1251(a)(14)
(1988), with the newly enacted section 241(a)(2)(C), 8 U.S.C.
1251(a)(2)(C) (Supp. II 1990), and held that âthe effective date restrictions
378
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found in the old statute no longer apply.â Id. at 988 (footnote omitted).
Although the court in Lopez-Amaro did not directly address the aggravated felony ground for deportation, the temporal limitation in section
7348(b) was phrased in nearly identical terms to section 7344(b) under consideration in the instant case. I do not find a meaningful basis for distinguishing the issue presented in Lopez-Amaro in regard to firearms convictions and the issue before us involving the aggravated felony ground for
deportation. Therefore, I find that we are bound by the decision in Lopez-Amaro, and the fact that the respondentâs conviction occurred prior to
November 18, 1988, does not prevent him from being deported pursuant to
section 241(a)(2)(A)(iii) of the Act (1990).
As discussed below, I find that the respondent and amicus curiae have
presented compelling arguments in this case that section 602(c) of the 1990
Act is a savings provision which operates to save the temporal restriction on
deportation contained in section 7344(b) of the ADAA. I would therefore
limit our holding in this case to the Eleventh Circuit and wait until the issue
arises in another circuit before determining whether to extend the rule
nationwide.
II. SECTION 602(c) OF THE 1990 ACT SAVES
SECTION 7344(b) OF THE ADAA.
At the time the respondent was convicted in 1987, there was no aggravated felony ground for deportation. This ground was enacted in the Anti-Drug Abuse Act of 1988. Section 7344(b) of this Act specifically limited
deportability under that ground to convictions for aggravated felonies which
occurred on or after November 18, 1988. The issue presented in this case is
whether section 602(c) of the 1990 Act saved or repealed section 7344(b)
of the ADAA.
Section 602(c) of the 1990 Act is entitled âSAVINGS PROVISIONSâ
and consists of two sentences. The first sentence provides:
Notwithstanding the amendments made by this section, any alien who was deportable
because of a conviction (before the date of the enactment of this Act) of an offense
referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration
and Nationality Act, as in effect before the date of the enactment of this Act, shall be
considered to remain so deportable.
The purpose of this sentence is to make clear that persons convicted
prior to the enactment date of offenses described in four designated paragraphs of the pre-1990 version of section 241 will remain deportable without regard to the 1990 amendments. These paragraphs, which refer to convictions under the Alien Registration Act and a number of other crimes, are
âsavedâ insofar as convictions which occurred prior to the enactment of the
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1990 law are concerned.
It is the second sentence of section 602(c) which bears on resolution of
the issue presented in this case. This sentence provides:
Except as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described
in subsection (a) thereof notwithstanding that (1) any such alien entered the United
States before the date of the enactment of this Act, or (2) the facts, by reason of which
an alien is described in such subsection, occurred before the date of the enactment of
this Act.
1990 Act § 602(c)(emphasis added). Putting aside the introductory exception clause for a moment, this sentence is a directive that the deportation
grounds of section 241(a), as amended by the 1990 Act, will apply without
regard to whether the alienâs entry or facts giving rise to deportability
occurred prior to the enactment date of the 1990 Act.
The exception clause, however, then overrides this general rule as to
timing of entry or events on which deportability is based when âspecifically provided in such section and subsection (d).â 1990 Act § 602(c).
Turning first to subsection (d) of section 602, this subsection contains
an effective date provision for the 1990 Act which states that â[t]he amendments made by this section, and by section 603(b) of this Act, shall not
apply to deportation proceedings for which notice has been provided to the
alien before March 1, 1991.â 1990 Act § 602(d), 104 Stat. at 5082. Thus,
for proceedings already underway before March 1, 1991, the pre-1990 version of the Act remains applicable.
It is the meaning of the other exception in the introductory clause to
section 602(c) which is critical to the outcome in the instant case.1 The
meaning of this provision, as the majority recognizes, turns upon the interpretation of the term âsuch sectionâ in that clause. The majority reads âsuch
sectionâ as a reference to section 241, as amended by the 1990 Act. Such a
reading violates basic rules of grammar and fundamental principles of
statutory construction. The majority would rewrite the exception clause of
the second sentence of section 602(c) to reach a result it believes is consistent with the âoverall thrustâ of the statute. I do not believe that we have
1
Until this case, neither the Board nor the courts that have considered the issue appear to
have addressed the meaning of the introductory clause in the second sentence of section
602(c), The Eleventh Circuit, in reaching its holding in Lopez-Amaro, referred only to the
ânotwithstandingâ clause of the second sentence of section 602(c), It is not clear from the
decision in Lopez-Amaro whether the arguments presented by the respondent and amicus curiae in this case as to the effect of the exception clause in the second sentence were presented
to or considered by the Eleventh Circuit in that case. Whether these arguments were presented or not, we remain bound by the holding in Lopez-Amaro.
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authority to reconstruct the statutory language in this way.
Basic rules of grammar indicate that the term âsuch section,â as used in
the introductory clause to the second sentence of section 602(c) refers to
section 241 as it existed prior to the amendments of the 1990 Act. First, the
sentence itself uses âsuch sectionâ in juxtaposition with âsuch section, as
amended by this section [section 602].â Had Congress intended the second
sentence of section 602(c) to have the meaning proposed by the majority, it
would not have juxtaposed âsuch sectionâ with âthe provisions of such section as amended by this section.â It could have simply stated that the
amended version of section 241 would apply without regard to entry or
other factual events before the date of enactment, except as otherwise
specifically provided in the amended version of section 241 or in subsection
(d).2 Although the heading of section 602(c) is âSAVINGS PROVISIONS,â
the majority acknowledges that it would read âsuch sectionâ in the introductory clause to prevent it from saving any provision in the pre-1990 section 241.
Additionally, the meaning of âsuch sectionâ is informed by reference to
the last antecedent use of the term âsection.â3 In this case, the immediately
preceding reference to âsection,â is to âsection 241(a) of the Immigration
and Nationality Act, as in effect before the date of the enactment of this
Actâ (in the first sentence of section 602(c)). Thus the natural and grammatical reading of âsuch sectionâ is that it refers to the pre-1990 version of
section 241.
The majority posits that reading âsuch sectionâ as a reference to the
pre-1990 version of section 241 would lead to an absurd result because it
would âkeep the former version of the law in control whenever there was a
difference between the old and the new.â But this conclusion is based on
the faulty premise that the exception clause operates independently of the
notwithstanding clause. What the majority fails to recognize is that the
introductory clause operates as an exception to the notwithstanding clause,
and its operation is governed by the scope of the notwithstanding clause.
The impact of the exception clause is clearer if the sentence is
reordered so that the exception clause is placed after the notwithstanding
clause, upon which it operates, as follows:
2
The provision would have been formulated as follows: âExcept as otherwise specifically provided in such section, as amended by this section, and subsection (d), the provisions
of such section, as amended, shall apply to all aliens described in subsection (a) thereof
notwithstanding that . . . .â
3
ââSuchâ represents the object as already particularized in terms which are not mentioned, and is a descriptive and relative word, referring to the last antecedent.â Blacksâ Law
Dictionary 1284 (5th ed. 1979).
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Interim Decision #3370
The provisions of such section [pre-1990 section 241], as amended by this section
[section 602], shall apply to all aliens described in subsection (a) thereof [section
241(a) as amended by section 602(a)]
notwithstanding that (1) any such alien entered the United States before the date of the
enactment of this Act, or (2) the facts, by reason of which an alien is described in such
subsection, occurred before the date of the enactment of this Act
except as otherwise specifically provided in such section [pre-1990 section 241] and
subsection (d).
When the notwithstanding clause is considered in tandem with the exception clause, as it must be, it becomes apparent that the exception clause does
not save every difference between the grounds for deportation in the pre-
1990 and post-1990 versions of the Act. What it does save are those specific references to limitations on entry in the pre-1990 version of section 241
which restrict deportability based upon (1) the date of entry or (2) the date
of occurrence of events upon which deportation is based. One such reference in the pre-1990 version of section 241 is the mandate of section
7344(b) of ADAA which specifically limits deportation for aggravated
felony convictions to âany alien who has been convicted, on or after
[November 18, 1988].â
Even if, as the majority argues, there is some ambiguity in regard to
whether section 602(c) of the 1990 Act saves section 7344(b) of the ADAA,
doubts in this regard should be resolved in favor of the alien. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (noting the âlongstanding principle of construing any lingering ambiguities in deportation statutes in favor
of the alienâ); INS v. Errico,
385 U.S. 214, 225 (1966) (indicating that
doubts as to the correct construction of the statute should be resolved in the
alienâs favor); Fong Haw Tan v. Phelan,
333 U.S. 6, 10 (1948) (stating that
any doubts regarding the construction of the Act are to be resolved in the
alienâs favor); Matter of Tiwari,
19 I&N Dec. 875 (BIA 1989).
Section 7344(b) of the ADAA specifically relates to the date of occurrence of facts upon which deportation for conviction as an aggravated
felony is based. Notably, it precludes deportation unless the alien was âconvicted, on or after [November 18, 1988].â In the absence of controlling circuit law, I would find that this provision is saved by the second sentence of
section 602(c) of the 1990 Act.
DISSENTING OPINION: Lory D. Rosenberg, Board Member
I respectfully dissent.
The question presented is whether a conviction that occurred before
November 18, 1988 can be relied on to sustain a charge of deportability for
an aggravated felony conviction under a statutory sectionâsection
241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4) (1988), later recodified in
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Interim Decision #3370
1990 as section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)
(Supp. II 1990)âthat no longer exists except in cases initiated prior to April
1, 1997? In answering this question in the affirmative, the majority dramatically alters the Boardâs longstanding interpretation of a 10-year-old,
now arguably defunct, law relating to the date after which an alien convicted of an aggravated felony will be considered deportable.
We recognized previously that a conviction for an aggravated felony
incurred deportability only when the conviction occurred on or after
November 18, 1988. Matter of A-A-, 20 I&N Dec. 492, 497 (BIA 1992)
(contrasting the lack of any temporal limitation in the 1990 amendments
restricting eligibility to apply for a waiver under section 212(c) of the Act,
8 U.S.C. § 1182(c) (Supp. II 1990), with the existing temporal limitation on
the aggravated felony ground of deportability); see also Matter of Melo,
21
I&N Dec. 883, at 885 (BIA 1997) (distinguishing the effect of a 1987 and
a 1989 aggravated felony conviction in a custody determination); Matter of
Gomez-Giraldo,
20 I&N Dec. 957 (BIA 1994) (affirming the distinctions
between deportability and waiver eligibility made in Matter of A-A-, supra).
The majority apparently is unwilling either to admit the practical consequences of our new ruling, which essentially reverses the position we have
taken for 8 years, or to acknowledge the conflicting analysis (or the lack of
one) underlying our prior rulings. Ignoring the proverbial elephant in the
bathtub, notwithstanding the overwhelming smell of peanuts, the majority
insists that, really, there is no need to distinguish our prior precedent
because we never addressed this precise aspect of the question before.
If that were not enough to give one pause in accepting the majorityâs
new analysis as a reasoned and permissible one, the substantive bases on
which the majority seeks to rationalize a contradictory interpretation of a
now-superseded statutory change made 8 years ago are questionable. We
not only failed to recognize the change that the majority now insists took
place, or to issue any precedent to that effect, but I venture to guess that we
issued numerous decisions invoking the interpretation we today overrule or
modify, sub silentio. As discussed below, I imagine that countless deportation proceedings were not initiated by the Immigration and Naturalization
Service because of its similar interpretation. This now-rejected interpretation also was adopted consistently by the circuit courts that addressed the
question, in large part based on deference to the Boardâs reading of the
statute as a reasoned one.
The majority now proposes to read an ambiguous savings clause provision of an 8-year-old legislative enactment in a way that is diametrically
opposed to the interpretation that has been followed regularly, without providing any substantial reason for such a change. Furthermore, although I
agree generally with the interpretation of the relevant statutory language
advanced by my concurring and dissenting colleagues, Guendelsberger and
Schmidt, I disagree that the decisions of the United States Court of Appeals
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for the Eleventh Circuit compel acquiescence to the majorityâs post hoc
interpretation. Consequently, I dissent from the majority opinion, and concur, but only in part, with the concurring and dissenting opinion, for the reasons discussed below.
I. BACKGROUND UNDERLYING THE ISSUE PRESENTED
Providing the reasons for the position I take in this dissenting opinion
requires placing the aggravated felony issue presented in historical context.1
The foundation for this context is that, prior to November 18, 1988, the
Immigration and Nationality Act included three principal catch-all categories of immigration violations related to crimes that would trigger excludability or deportability. See, e.g., Immigration and Nationality Act of 1952,
ch. 477, 66 Stat. 163, codified as
8 U.S.C. § 1101, et seq. (1952). These
criminal offense categories, which applied differently in the exclusion and
deportation context, related to âcrimes involving moral turpitude,â âdrugâ
offenses (later referred to as âcontrolled substanceâ offenses), and certain
firearms convictions.
Section 7342 of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,
102 Stat. 4181, 4469-70 (enacted Nov. 18, 1988) (âADAAâ), introduced a
new classification of convictions in addition to these three principal ones:
the aggravated felony. The definition of the term âaggravated felony,â later
codified as section 101(a)(43) of the Act,
8 U.S.C. § 1101(a)(43) (1988),
has been understood consistently to be distinct from its applicability to particular statutory provisions that trigger certain consequences, or âdisabilities,â under the immigration law. See ADAA § 7342; Matter of
A-A, supra,
at 499; Matter of Reyes,
20 I&N Dec. 789 (BIA 1994) (examining the limitations imposed by the individual terms of applicability that attached to the
separate provisions involving voluntary departure, suspension of deportation, and good moral character); see also Amended Definition of
Aggravated Felony, Op. Off. General Counsel 96-16, (Dec. 3, 1996) (citing
Matter of A-A-, supra, as the âleading caseâ for resolving the two ârelated
but not identical questionsâ of whether a conviction is for an aggravated
1
The origins of the âaggravated felonyâ concept and the course it has taken since its
introduction into the Immigration and Nationality Act 10 years ago by the Anti-Drug Abuse
Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (âADAAâ), in terms of its effect on individual immigrants, their families, and United States immigration policy, is a subject well
worth far greater scrutiny than it is possible to undertake here. For purposes of this dissent,
however, I must presume some understanding of the origins of our 100-year-old policy of
exclusion and expulsion of âundesirablesâ generally, and during the past 10 years in relation
to the aggravated felony category. See Kesselbrenner and Rosenberg, Immigration Law and
Crimes (West Law Group 1998).
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felony and what consequences result from that conviction).
In Matter of A-A, supra, the Board addressed the applicability of section 101(a)(43) of the Act, which lacked a specifically articulated effective
date and had no temporal provision attached to it, to ineligibility for a waiver under section 212(c) in the case of a lawful permanent resident who had
served more than 5 yearsâ imprisonment for an aggravated felony conviction. The Board read silence on Congressâ part in relation to the definitional section and certain other subsections relating to aggravated felony convictions as indicating applicability was unlimited and applied to convictions
occurring before the date of the enactment creating the category. See
id. at
497 (indicating that when Congress wished to limit the reach of a statute to
a prospective application it did so expressly); see also Matter of Gomez-Giraldo, supra. We emphasized that, â[a]ccordingly, where Congress
attaches disabilities to an alien convicted of an aggravated felony, those disabling provisions are properly read as including all such convictions,
regardless of when conviction occurs, unless Congress explicitly provides
otherwise.â Matter of A-A-, supra, at 499 (emphasis added).2
The Board acknowledged that many of the originally enacted ADAA
provisions pertaining to the consequences or âdisabilitiesâ resulting from
conviction of an âaggravated felonyâ were limited by implicit or explicit
temporal provisions. Matter of A-A-, supra, at 495-98 (relying on the
amendments made by the ADAA as a basis on which to construe the effect
of the 1990 change to section 212(c) of the Act). We recognized that express
language in some sections of the ADAA explicitly restricted application of
the provision to convictions occurring âon or afterâ November 18, 1988.
Matter of A-A-, supra, at 499 n.15;3 see also Aggravated Felony:
2
Although not necessary to resolve for purposes of this opinion, the overbroad declaration that congressional silence supports an essentially retroactive application of a statutory
provision appears to me to stand the accepted retroactivity doctrine on its head. See Hughes
Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997); see also Lindh v. Murphy,
521 U.S. 320 (1997); Landgraf v. USI Film Products,
511 U.S. 244 (1994); Henderson v. INS,
157 F.3d 106 (2d cir. 1998), cert. denied, sub nom Reno v. Navas,
119 S.Ct. 1141 (1999) (2d
Cir. 1998); Goncalves v. INS,
144 F.3d 110 (1st Cir. 1998), cert. denied,
119 S.Ct. 1140
(1999). But see Matter of Soriano,
21 I&N Dec. 516 (BIA 1996; A.G. 1997) (treating applications of a new law to circumstances occurring before its enactment as not being retroactive);
but cf. Matter of Gomez-Giraldo, supra, at 960 (affirming the restrictions on former section
212(c) of the Act as being âfully consistent with the Supreme Courtâs recent holdings in
Landgraf v. USI Film Productsâ),
3
See, e.g., ADAA § 7343 (mandating that an alien convicted on or after November 18,
1988, be taken into custody and not released, and restricting eligibility for voluntary departure in such cases); ADAA § 7344, 102 Stat. at 4470-71 (rendering deportable any alien convicted of an aggravated felony at any time after entry occurring on or after November 18,
1988); ADAA § 7347, 102 Stat. at 4471-72 (providing expedited deportation proceedings for
person convicted of an aggravated felony on or after November 18, 1988.
385
Interim Decision #3370
Applicability to Convictions Prior to November 18, 1988, Op. Off. General
Counsel 91-3 (Feb. 22, 1991) (concluding that section 7343 of the ADAA,
102 Stat. at 4470, applies âonly to those aliens âconvictedâ of an aggravated felony on or after November 18, 1988â). Prominent among the sections
of the ADAA that the Board recognized as having an explicitly prospective
âon and afterâ November 18, 1988, applicability date is the aggravated
felony ground of deportability, codified originally as section 241(a)(4)(B),
which encompassed convictions that constitute an aggravated felony as
defined in section 101(a)(43) of the Act.
Congressâ amendment of the statute in 1990 made both substantive and
housekeeping changes that are relevant to our inquiry here. First, in the
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (enacted
Nov. 29, 1990) (â1990 Actâ), the definition of what constituted an aggravated felony was expanded prospectively to include additional convictions,
occurring on or after November 29, 1990, for crimes generically referred to
as money laundering and crimes of violence, for which a sentence of more
than 5 years was imposed. See 1990 Act § 501(b), 104 Stat. at 5048.4
Second, certain grounds of deportation related to controlled substance and
firearms convictions and security violations were substantively amended.
Finally, without regard to whether there was any change whatsoever in
applicability, each ground of deportation, including those related to manner
of entry, immigration status, and other document violations, criminal violations, security violations, and other violations that were longstanding
grounds of deportation, was recodified across the board. See 1990 Act §
602(a), 104 Stat. at 5077.
Section 241(a)(4)(B) was among those renumbered in this reorganization of the âGeneral classes of deportable aliensâ under section 241 of the
Act. Matter of A-A-, supra, at 497 n.9 (noting that the 1990 Act ârevised and
redesignatedâ the section as 241(a)(2)(A)(iii), but not distinguishing its
continuing applicability as before), The content of this particular deportation ground remained intact and was not touched either in terms of its content or its reach; nothing about the substantive applicability of this provision
was altered or amended in any way. Nowhere has the aggravated felony
ground of deportation been construed or otherwise treated as though the
revisions and redesignations contained in section 602 amending the 1990
Act affected or modified its substantive content or applicability only to convictions after November 18, 1988.
4
Subsequent to the 1990 Act and our decision in Matter of A-A-, supra, âCongress further expanded the definition of the term âaggravated felonyâ in the Immigration and
Nationality Technical Corrections Act of 1994 . . . [which] shall apply prospectively only . .
. âto convictions entered on or after the date of enactment of this Act.â Section 222(b) of the
1994 Act, 108 Stat. at 4322.â Matter of Gomez-Giraldo, supra, at 959 n.1 (citation omitted).
386
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II. REASONABLE AND PERMISSIBLE INTERPRETATION
OF THE STATUTE
In my view, a reasonable and permissible interpretation of section
602(c), an ambiguous section of the statute, requires that we either follow
or distinguish our own precedent and properly acknowledge the scope of
controlling circuit law. Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984); see also Ronald M. Levin, The
Anatomy of Chevron: Step Two Reconsidered, Symposium on
Administrative Law,
72 Chi.-Kent L. Rev. 1253, 1263 (1997)(asserting that
as the Court referred in other passages of Chevron to âreasonableness,â an
interpretation that is âpermissibleâ might be one that, under the âhard-look
doctrineâ applicable to review of agency decisions, would not be arbitrary
and capricious).
The majority cites legislative history from the House-Senate
Conference Committee that I presume they believe supports their position.
Unfortunately, it is not persuasive. The quotation they select to underscore
their position that the revision and redesignation stripped former section
241(a)(4)(B) of its November 18, 1988, effective date when it was recodified as 241(a)(2)(A)(iii) does not indicate anything of the sort, but only
addresses the fact that Congressâ principal purpose was meant to âmake the
law more rational and easy to understand,â and specifies it was intended to
ârepeal . . . outmoded grounds,â and to allow âconsolidation of related
[deportation] grounds,â and âexpansion of waiversâ of deportability. H.R.
Conf. Rep. No. 101-955, at 119, 128 (1990), reprinted in 1990
U.S.C.C.A.N. 6784, 6793.
Reading the legislative change to strip the November 18, 1988, effective date restriction from the aggravated felony ground of deportability
merely because of a recodification of deportation grounds generally accomplishes none of these stated objectives. The aggravated felony ground was
neither repealed nor consolidated, nor made the subject of any expanded
waiver provision. It was simply one of many provisions reorganized into a
broad subsection that grouped together criminal offenses constituting
grounds of deportability.
The limited legislative history neither addresses section 602(a) directly
nor constitutes evidence of a âground-upâ revision of all deportation provisions. The majorityâs âunderstanding that the purpose of section 602 of the
1990 Act was to completely revise the deportation groundsâ is without support. Such a comprehensive type of revision is what occurred recently in
section 306 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546, 3009-607 (Sept. 30, 1996) (âIIRIRAâ), and had that occurred in
1990, there would have been little need for Congress to take the sweeping
actions it took in the IIRIRA. See, e.g., IIRIRA, title III (âInspection,
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Apprehension, Detention, Adjudication, and Removal of Inadmissible and
Deportable Aliensâ).
I emphasize that in the course of its consolidating and reorganizing the
placement of the deportation grounds in the 1990 Act, Congress made some
quite significant substantive changes to the content of other deportation
grounds in the statute, but left the text of the aggravated felony ground of
deportability untouched. Moreover, while Congress added to the list of convictions defined as aggravated felonies, it did not roll back the effective date
for aggravated felonies for all purposes, but instead attached prospective
effective dates to the new convictions included in the list. This is a far cry
from recent, clearly deliberate changes in the statute, in which Congress
went far beyond a mere recodification of deportation grounds, but indicated explicitly, for example, that it intended to retroactively apply all âactions
takenâ in relation to the aggravated felony grounds as a basis for removal,
without regard to the date the conviction occurred, and wished to insure that
deportation consequences would not be escaped once a plea or judgement
of guilty was entered and some form of punishment or limitation on an
alienâs liberty was imposed. See IIRIRA §§ 321(c), 322, 110 Stat. at 3009-
628; H.R. Conf. Rep. No. 104-828, at 224 (1996) (âJoint Explanatory
Statementâ); see also 8 C.F.R. § 1.1(t) (1998).
A. Section 602(c)
I adopt the analysis advanced by concurring and dissenting members Guendelsberger and Schmidt. As I see it, a savings provisions saves.
See Blackâs Law Dictionary 1205 (5th ed. 1979) (âOrdinarily a restriction
in a repealing act, which is intended to save rights, pending proceedings,
penalties, etc., from the annihilation which would result from an unrestricted repeal. . . . Such clause continues in force the law repealed as to existing
rights.â (defining savings clause) (emphasis added)).
The purpose of a savings clause is to preserve the previously existing
state of affairs, or status quo, when such would be changed by a statuteâs
amendment. United States v. Menasche, 348 U.S. 528, 532 (1955) (limiting
substantive changes made by amendments in the immigration law to proceedings initiated after enactment of the new law). Under the language of
such a clause in the Immigration and Nationality Act of 1952, the United
States Supreme Court interpreted a savings clause to apply where something in the new law introduces a change, possibly affecting oneâs status
under the old law. See Shomberg v. United States,
348 U.S. 540, 546 (1955),
Stated simply, as my concurring and dissenting colleagues put it, the
term âsuch sectionâ in section 602(c) most reasonably refers to the substantive content of former provisions of section 241 that were not changed
substantively by the revision and redesignation made to the deportation
grounds made in the 1990 Act. Although the aggravated felony ground of
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deportability was recodified as section 241(a)(2)(A)(iii), nothing about the
specified substantive applicability of this provision was altered or amended
in any way. Nowhere has the aggravated felony ground of deportation been
construed or otherwise treated as though the revisions and redesignations
contained in section 602 amending the 1990 Act affected or modified its
substantive content or its applicability only to convictions after November
18, 1988.
B. Longstanding Agency Precedent and the 1990 Act
The majorityâs position is difficult to comprehend, as we already have
recognized that section 602 of the Immigration Act of 1990 ârevised and
redesignatedâ the grounds of deportability. Matter of A-A-, supra, at 492
n.1. Each existing ground of deportability was redesignated numerically in
a complete recodification of section 241 of the statute that was meant to better classify subsections by category, but only certain grounds were actually
altered or amended in substance. See 1990 Act § 602(a). The section that
governs deportability for conviction of an aggravated felony was not
changed at all in substance, or, in my view, in applicability.
The majorityâs current position essentially abandons this conclusion. It
rests on the view that (1) although no substantive change was made to the
aggravated felony ground of deportation in 1990, and 2) although no change
was made to the specific individually designated effective date on which
this provision was made applicable in 1988, the scope of its applicability
was changed nevertheless, because Congress recodified the subsections of
the Act and at the same time substantively amended some other subsections.
This is at odds with our existing precedent.
The Board has expressly recognized the difference between those provisions that were renumbered or redesignated by section 602(a) of the 1990
Act, and those that were substantively amended as to their content, and has
treated these qualitative and quantitative changes differently. In Matter of
Chow, 20 I&N Dec. 647 (BIA 1993), affâd sub nom. Kin Sang Chow v. INS,
12 F.3d 34 (5th Cir. 1993), discussing the change worked by section 602(a)
in relation to section 241(a)(14) of the Act and its redesignation as section
241(a)(2)(C), the Board found that the statutory change
significantly amended the substance of the provisions by increasing the number of
weapons offenses . . . and replacing the [former] enumeration of the specific types of
weapons . . . with one all-encompassing definition of a âfirearm or destructive device.â
In essence, section 241(A)(2)(C) of the Act represents the enactment of a new statutory provision that completely supersedes all former versions of that deportation ground.
. . . Since the 1990 Act completely substituted section 241(a)(2)(C) of the Act for section 241(a)(14), we conclude that it also made irrelevant any restrictions on the applicability of the provisions of the former statute placed on it by the 1988 Act.
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Id. at 650-51 (emphasis added); see also Kin Sang Chow v. INS, supra, at
37, 38 (agreeing that the 1990 Act âcompletely supersedes all former versions of legislation dealing with deportation for firearm offensesâ and that
âthe BIA was justified in finding that Chow violated § 241(a)(2)(C) and that
the BIAâs decision was reasonable in accordance with Chevronâ (emphasis
added)).
Thus, the Board was well aware that with section 602(a) of the 1990
Act Congress only changed the numerical designation of some deportation
grounds, while with others, such as that governing firearms violations, it
âcompletely substitutedâ the text of the new section for that of the former
section. And, in the latter cases, the Board concluded that any limitation on
the applicability of the former section would no longer have any force, leaving only the effective date provision of section 602(d) to govern the applicability of the new section. Matter of Chow, supra.
By contrast, the Board did not make such a suggestion either in Matter
of A-A-, supra, which preceded Matter of Chow, or in Matter of Gomez-Giraldo, supra, which followed Chow. Indeed, in Matter of A-A-, we
invoked, as a contrast to such a reading, the express language of the aggravated felony ground of deportability first introduced by the ADAA (which
the majority denies we have addressed other than for âillustrative purposesâ). Although the Board did not need to reach the issue of deportability in
that case because the respondentâs Order To Show Cause had been issued
before the change in the law, we specifically relied on the provision pertaining to deportability as a point of comparison, stating,
For example, as enacted by section 7344(a) of the Anti-Drug Abuse Act of 1988, 102
Stat. at 4470-71, section 241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4)(B) (1988), renders deportable any alien âconvicted of an aggravated felony at any time after entry.â
Congress explicitly stated that this deportation ground would only be prospectively
applied to an alien âconvicted, on or after the date of the enactment of [the 1988] Act,
of an aggravated felony.â Section 7344(b) of the Anti-Drug Abuse Act of 1988, 102
Stat. at 4471.
Matter of A-A-, supra, at 497 (emphasis added) (footnote omitted).
Moreover, in 1994, in Matter of Gomez-Giraldo, supra, we looked to the
1990 Act to defend the rationale for our decision in Matter of A-A-, supra,
stating that Congress, which is âpresumed to be cognizant of existing law
pertinent to the legislation it enacts, see, e.g., Cannon v. University of
Chicago,
441 U.S. 677 (1979); Lorillard v. Pons,
434 U.S. 575, 581 (1978);
Blitz v. Donovan,
740 F.2d 1241 (D.C. Cir. 1984), . . . did not disturb our
construction of the statutory provisions at issue in Matter of A-A- and revisited here.â Matter of Gomez-Giraldo, supra, at 961 n.3 (emphasis added)
(citing Matter of A-A-, supra, at 499).
In Matter of Chow, supra, we made very, very clear that the basis for
our ruling was the fact that the substance of the separate provision relating
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Interim Decision #3370
to firearms and destructive devices was new. Furthermore, the fact that section 602(d) sets forth an effective date for the changes made by the 1990 Act
need not mean it obviates aspects of temporal applicability associated with
pre-existing provisions that were merely redesignated in the course of the
recodification. See Matter of Papazyan, 20 I&N Dec. 568, 570 (BIA 1992),
in which the Board addressed little more than whether the Service could
sustain its burden of proof in terms of charging a deportation ground under
its present designation when based on the grounds of inadmissibility as previously codified in the Act. Therefore, section 602(d) may be afforded
meaning simply as to when charges under the relevant sections of section
241(a) as redesignated are proper, and need not supplant or substitute for a
previously enacted and substantively undisturbed applicability provision
such as exists under section 7344(b) of the ADAA, 102 Stat. at 4471.
To dismiss our reliance on the terms of section 7344 of the ADAA as
being no more than merely for an âillustrative purposeâ strains credulity. Of
course these extensive comparisons served an illustrative purpose, but why
would the Board repeatedly invoke a supposedly superseded provision of
the ADAA purely for purposes of illustration? And even if we had used past
history that had been superseded to illustrate a point, why would we have
been so inexact as not to distinguish it squarely as only an aspect of our
illustration?
We spent over five pages discussing these ADAA provisions in depth,
and specifically relied on section 7344 of the ADAA as a counterpoint for
our interpretation of the 1990 Act provision pertaining to restrictions on
waiver eligibility. Matter of A-A-, supra. We meaningfully distinguished our
conclusion in Matter of Chow on the basis that it âcompletely supersededâ
the former deportability ground pertaining to firearms, because it was
âcompletely substitutedâ in the 1990 Act, never indicating that we believed
the aggravated felony deportation ground to have been given the same
effect. See also Matter of Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993)
(holding that a respondent convicted of first degree murder with a pistol was
deportable for a firearms violation under section 241(a)(2)(C) on the basis
of our decision in Matter of
Chow, supra), affâd,
25 F.3d 986 (11th Cir.
1994).
Certainly, we must have taken the provisions of section 602 of the 1990
Act into account generally in interpreting the new firearms and waiver provisions. It is not as though we made only some casual reference to section
7344 of the ADAA in Matter of A-A-, as an example, albeit without any
force, of âwhat Congress does when it wants to set a prospective limitation.â
Cf. Matter of Lettman, 22 I&N Dec. 365, at 372 (BIA 1998. The majority
fails to explain its disregard for the implicit and explicit reliance on the
aggravated felony deportability ground in our analyses in Matter of A-A-,
supra, or Matter of
Chow, supra, in asserting that its conclusion today
somehow is in conformity with that precedent.
391
Interim Decision #3370
Moreover, a closer look at our 1993 decision in Matter of Lopez-Amaro,
supra, is revealing in that it involves a respondent convicted in 1983 of first
degree murder with a firearm, who was not charged with being or found
deportable on the basis that her murder conviction constituted an aggravated felony. Id. at 669. If the majorityâs view of section 602(c) of the 1990 Act
is correct or consistent with the way in which the applicability of the deportation ground for an aggravated felony previously was understood, why
would an alien convicted of first degree murder in 1983 not have been
charged with being convicted of an aggravated felony, but as having been
convicted of a firearms offense, as amended by the 1990 Act?5
We recognized specifically that â[d]eportability based on conviction of
a crime involving moral turpitude is not at issue in this case because the
murder took place more than 5 years after the respondentâs [1977] entry into
this country.â Matter of Lopez-Amaro, supra, at 669 n.1.6 We do not intimate even the possibility that the respondent could have been deportable
based on an aggravated felony conviction. While, admittedly, the particular
grounds of deportability charged are within the prosecutorial discretion of
the Service, the Serviceâs failure to include such a charge and the Boardâs
failure to even consider it an issue indicate to me that, as I suggested at the
outset, a 1983 conviction was presumed not to constitute a basis for deportation because it occurred prior to November 18, 1988.
Furthermore, the Serviceâs interpretation of former section
242(a)(2)(B) of the Act, 8 U.S.C. § 1252(a)(2)(B) (1994), addressing eligibility for release from custody, which had been prohibited altogether in
cases in which the respondent had been convicted of an aggravated felony,
is pertinent. See ADAA §§ 7343(a), (c), revised by 1990 Act § 504(a), 104
Stat. at 5049-50 (enacted Nov. 29, 1990), corrected by Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991,
Pub. L.
No. 102-232, § 306,
105 Stat. 1733, 1751 (âMTINAâ); see also 8 C.F.R §
242.2(c) (1997). In interpreting the revision of that section that allowed the
release of certain respondents from custody, the Service concluded that the
aggravated felony convictions in question were those occurring after
November 18, 1988. See Op. Off. General Counsel 91-3, supra (concluding
that section 7343 of the ADAA applies âonly to those aliens âconvictedâ of
an aggravated felony on or after November 18, 1988 [and] . . . triggers the
mandatory detention [provision]â); see also Matter of Ellis,
20 I&N Dec.
5
I note that the Order To Show Cause in this case was issued on July 31, 1991, after the
March 1, 1991, date on which the revisions and redesignations made in section 602(a) of the
1990 Act had taken effect according to section 602(d).
6
The respondent in Matter of Lopez-Amaro, supra, was originally paroled into the country in 1972, but completed her âentryâ when her status was adjusted in 1977. See also Matter
of Jimenez-Lopez,
20 I&N Dec. 738 (1993).
392
Interim Decision #3370
641, 643 (BIA 1993) (holding that under the 1990 Act, the Attorney General
could release an alien convicted of an aggravated felony, providing he
demonstrates that he has been lawfully admitted to the United States, does
not present a threat to the community, and is likely to appear for any scheduled hearing).
The Serviceâs interpretation supports the view that a prospective application of the aggravated felony ground of deportability (following enactment of the ADAA on November 18, 1988) has been, and remains, the rule.
Our decisions reflect that we have read the provisions involving the aggravated felony ground of deportation and those governing release from custody together. See Matter of Melo, supra, at 885 (distinguishing between a
1987 and a 1989 conviction, each of which was for drug trafficking in concluding that it was the respondentâs 1989 conviction that âbrought him
within the ambit of former section 242(a)(2),â which required individuals
convicted of an aggravated felony after November 18, 1988, to rebut a presumption of dangerousness for bond purposes). It would be unusual, if not
irreconcilable, to conclude that, under the 1990 Act, an individual convicted of an aggravated felony before November 18, 1988 was to be treated as
deportable on the basis of having an aggravated felony conviction, but that
the aggravated felony custody provisions would not apply to him or her.
III. SECTION 602 AND THE AGGRAVATED FELONY GROUND OF
DEPORTABILITY AS INTERPRETED BY THE FEDERAL COURTS
Section 241(a)(2)(A)(iii) of the Act and the subsections specifying
grounds of deportation for controlled substance and firearms convictions
are independent of one another. It is as though aggravated felonies are
apples; firearms convictions are oranges. While they may join each other in
one big fruit basket, they are distinct. Nonetheless, both the majority and
the concurring and dissenting Board members latch onto the decisions of
the Federal circuit courts involving the substantive change in the firearms
ground of deportability as though they are dispositive of the issue before us.
I disagree.
A. The Eleventh Circuit Opinion in Lopez Amaro v. INS
Does Not Control
I note that the United States Court of Appeals for the Eleventh Circuit,
the circuit in which this case arises, has tailored its own decisions to follow
Board law. See Jaramillo v. INS, 1 F.3d 1149, 1155 (11th Cir. 1993) (en
banc). The operative word here is âfollow.â The Eleventh Circuit has
expressed repeatedly its desire to follow a consistent agency policy, most
recently citing to Jaramillo in Yeung v. INS,
76 F.3d 337, 341 (11th Cir.
393
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1995), where the court held:
We recognize, however, that the issues raised here are of national importance in âan
area of the law where uniformity is particularly important.â Jaramillo v. INS, 1 F.3d
1149, 1155 (11th Cir.1993) (en banc). We will therefore afford the Attorney General,
in whom Congress has vested the authority to rule on legal questions arising from the
immigration law, the opportunity to reconsider and construe § 212(h) consistent with
the competing statutory, constitutional, and policy interests at stake.
In other words, in neither Yeung nor Jaramillo did the circuit court
reach a particular legal conclusion on its own, but arrived at the result it
reached by following the Boardâs own reasoning. Lopez-Amaro v. INS, 25
F.3d 986 (11th Cir. 1994), cert. denied,
513 U.S. 1146 (1995), is a circuit
court decision addressing a weapons conviction that relies on Board precedent in Matter of
Chow, supra. In Jaramillo v.
INS, supra, the court stated
clearly:
In such a case, âthe question for the court is whether the agencyâs answer is based on
a permissible construction of the statute.â We must defer to the Board, . . . so long as
the Boardâs interpretation ârepresents a reasonable accommodation of conflicting
policies that were committed to the agencyâs care by the statute . . . unless it appears
from the statute or its legislative history that the accommodation is not one that
Congress would have sanctioned.â
Id. at 1153-54 (second emphasis added) (citations omitted) (quoting
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., supra, at
843, 845).
In Lopez-Amaro, the Eleventh Circuit addressed the completely
rewritten ground of deportability based on a firearms conviction as it had
been addressed by the Board in Matter of Chow, supra, separate and apart
from any interpretation of the aggravated felony ground of deportability.
As I have indicated above, the respondent in Lopez-Amaro was not
charged with deportability on the aggravated felony ground based on a
1983 first degree murder conviction, although there was no impediment to
her being so charged had a pre-November 18, 1988, conviction been
viewed as supporting a charge of deportability. Thus, although the majority speaks in terms of the circuit âaddressingâ the issues raisedâand my
two dissenting colleagues apparently acquiesce to this positionâclearly
the circuit has not done so squarely. In fact, the majority admits that neither the Eleventh Circuit nor any other circuit has spoken directly to the
effect of section 602 or anything else in the 1990 Act in relation to when
a conviction prior to November 18, 1988, that may be classified as an
aggravated felony renders an alien deportable under section
241(a)(2)(A)(iii) of the Act.
For their part, my concurring and dissenting colleagues state only that
they do not âfind a meaningful basis for distinguishing the issue presented
394
Interim Decision #3370
in Lopez-Amaro in regard to firearms convictions.â My reply to these reservations is: What about our decision in Matter of Chow, supra, and the fact
that we expressly reached the holding there because the substance of the
firearms provision was completely revamped? What about the fact that we
subsequently reaffirmed our analysis in Matter of A-A-, supra, without even
the suggestion of modification or clarification in Matter of Gomez-Giraldo,
supra? We did not address the aggravated felony deportation ground, and
the Eleventh Circuit did not follow any reasoned interpretation on our part
in that regard in Lopez-Amaro. Instead, as discussed above, prior to the
instant opinion, we have made plainâin decisions expressly analyzing the
effect of the 1990 Act on the aggravated felony ground of deportationâthat
we did not consider a conviction prior to that date to render an alien
deportable.
B. Federal Court Acceptance of Our Reading
No Federal court decision appears to have squarely addressed a challenge to a finding of deportability, per se, based on an aggravated felony
conviction entered prior to November 18, 1988, in which a notice was provided prior to March 1, 1991; however, at least one case has addressed a
pre-November 18, 1988, conviction, and several have addressed the Boardâs
interpretation as though conviction of an aggravated felony as a ground of
deportability provides a point of comparison for interpretation of other
statutory sections amended by the 1990 Act.
In Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996), a respondent, who
was convicted in 1987 of various Federal racketeering and controlled substance distribution offenses, was charged in March 1992 with deportability
under section 241(a)(2)(B)(i) of the Act, as an alien convicted of a controlled substance violation.
Id. at 1518. Deciding this appeal in 1996, the
United States Court of Appeals for the Third Circuit found the respondent
ineligible for a waiver of deportability under section 212(c), as amended by
the provisions of the 1990 Act, by relying on the 1988 provisions of the
ADAA, including the aggravated felony ground of deportability, reasoning
as follows:
The other three substantive provisions of the ADAA employing the âaggravated
felonyâ term, each of which concerns deportation of aggravated felons, explicitly limit
their application prospectively to aliens convicted of aggravated felonies âon or after
the date of the enactmentâ of the ADAA. See §§ 7343(c) (âDeportation of Aliens
Committing Aggravated Feloniesâ), 7344(b) (âGrounds of Deportationâ), and 7347(c)
(âExpedited Deportation Proceedings for Aliens Convicted of Aggravated Feloniesâ).
. . . [T]hese provisions demonstrate that Congress knew well how to limit expressly the
reach of a provision where it desired to do so, but Congress did not do so with respect
to the definition section.
Id. at 1524 (emphasis added) (citing INS v. Cardoza-Fonseca,
480 U.S. 421,
395
Interim Decision ##3370
432 (1987), noting that, where Congress includes particular language in one
section of a statute but omits it from another section of the same act, it is
generally presumed that Congress acted intentionally and purposely in the
disparate inclusion or exclusion). No suggestion was made that the petitionerâs deportation was inevitable because he was deportable as a result of
a conviction for an aggravated felony.
Similarly, in a 1993 decision, De Osorio v. United States INS, 10 F.3d
1034, 1039 (4th Cir. 1993), the United States Court of Appeals for the Fourth
Circuit adopted the view of the Board in Matter of A-A-, supra, concluding
that â[t]he Board contends that because other sections of the ADAA and the
IMMACT have explicitly prospective language (i.e. they are applicable only
to aggravated felony convictions on or after the date of enactment), then sections without any temporal limits, such as § 212(c), must include all aggravated felonies.â The court so held based on its understanding that
[t]he Board asserted in Matter of A-A- that when Congress intended a restriction in the
ADAA to apply to convictions only after the date of enactment, it expressly so stated.
Int. Dec. 3176 at 8-10. For example, § 7344(a) made aliens convicted of an aggravated felony deportable, but this provision was only to be prospectively applied to convictions after the date of the ADAAâs enactment. 102 Stat. at 4470-71, (codified at
§241(a)(4)(B) of the INA,
8 U.S.C.A. § 1251(a)(4)(B) (West Supp.1993)),
Id. at 1039 n.4 (emphasis added).
In another case involving criminal reentry after deportation by one convicted of an aggravated felony, United States v. Baca-Valenzuela, 118 F.3d
1223 (8th Cir. 1997), the United States Court of Appeals for the Eighth
Circuit acknowledged that at the time the petitioner was convicted of a state
drug charge in 1987, his conviction was not an aggravated felony, but a
felony which then was a deportable offense under section 241(a)(4), and
reentry into the United States after deportation carried a maximum penalty
of 2 years in prison.
8 U.S.C. § 1326 (1987). The court recognized, however, that while Baca-Valenzuela was imprisoned, Congress passed statutes in
1988 and 1990 amending the relevant provisions on illegal reentry after
deportation in several of the other substantive sections of the 1988 Act,
which used the term âaggravated felony,â but explicitly limited the statuteâs
application to aliens convicted of aggravated felonies âon or after the date
of the enactment.â The court reasoned that such an express limitation
would have been unnecessary and redundant if the definition of âaggravated felonyâ did not already include convictions prior to the effective date of
the Act. See
id. at 1229 n.12, (where the court emphasized that
[i]n two other sections of the 1988 Act a substantive provision regarding the deportation of aliens who commit an aggravated felony is explicitly limited to prospective
crimes only. See §§ 7344(b) (âGrounds of Deportationâ) & 7347(c) (âExpedited
Deportation Proceedings for Aliens Convicted of Aggravated Feloniesâ)).
These Federal court decisions rendered in 1996, 1993, and 1997,
396
Interim Decision #3370
respectively, relied on the November 18, 1988, effective date applicable to
the aggravated felony ground of deportation. They did not invoke the pre-
1990 Act provision for âillustrative purposes,â but because they viewed it as
being in effect, just as we, at the Board, relied on the November 18, 1988,
effective date in our 1992, 1993, and 1994 decisions.
IV. CONCLUSION
The majority, nevertheless, ignores our previous reliance on the aggravated felony deportation ground as a point of comparison to understand the
provisions of the 1990 Act. Although no legislative history exists that
directly addresses the scope of the aggravated felony deportation ground,
and although no Federal court supports the position we now adopt as precedent, the majority puts it forth as a reasoned analysis.
While the nature of the ultimate questionâdid a simple housekeeping
recodification that left intact all substantive aspects of a prior subsection
stating that deportability is incurred when an alien is convicted of an aggravated felony after November 18, 1988, change that subsectionâmay seem
rather straightforward, the answer is not plain and requires reexamination
of ambiguous statutory provisions. I question the value of such a debate
when the particular question already has been decided and followed consistently by the Board in aggravated felony cases, the statutory sections
have been completely overwritten both in form and substance, the provision
would affect convictions over 10 years old, and the answer now gleaned
from revisiting prior law applies only to whatever remaining deportation
proceedings that were initiated sometime before April 1, 1997, are still
pending, going on 2 years later.
However, because I cannot conclude that the majority opinion reversing our established interpretation constitutes a reasoned decision, and
because extremely severe deportation consequences attach to the interpretation they impose, I cannot join it. Indeed, even if I agreed with the majorityâs analysis, I could not join it, as I believe that if we are going to reverse
consistently applied Board law, we should declare that we are doing so, provide our reasons for doing so, and, as we have done in the past, make specific, intentional modifications to existing precedent decisions. I also do not
find that the result reached by the majority is preordained in the Eleventh
Circuit, in which jurisdiction this case arises. Consequently, I dissent.
397
