VASQUEZ-MUNIZ

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              In re Carlos VASQUEZ-MUNIZ, Respondent
                               File A36 621 740 - Eloy
                              Decided January 15, 2002
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) An offense defined by state or foreign law may be classified as an aggravated felony as
an offense “described in” a federal statute enumerated in section 101(a)(43) of the Immigration
and Nationality Act, 

(a)(43) (1994 & Supp. V 1999), even if it lacks the
jurisdictional element of the federal statute.
(2) Possession of a firearm by a felon in violation of section 12021(a)(1) of the California
Penal Code is an aggravated felony under section 101(a)(43)(E)(ii) of the Act because it is
“described in” 

(g)(1) (1994). Matter of Vasquez-Muniz, Interim Decision
3440 (BIA 2000), overruled.

Pro se
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Wendell A. Hollis,
Deputy District Counsel
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;
SCHMIDT, HURWITZ, VILLAGELIU, FILPPU, COLE, GUENDELSBERGER, GRANT,
MOSCATO, OHLSON, HESS, and PAULEY, Board Members. Concurring Opinion:
HOLMES, Board Member. Concurring and Dissenting Opinion: ROSENBERG, Board
Member, joined by MILLER, BRENNAN, ESPENOZA, and OSUNA, Board Members.

SCIALABBA, Acting Chairman:

   This matter first came before us on December 1, 2000, when we issued a
published precedent, Matter of Vasquez-Muniz, Interim Decision 3440 (BIA
2000), holding that the respondent’s conviction for possession of a firearm by
a felon did not constitute a conviction for an aggravated felony within the
meaning of section 101(a)(43) of Immigration and Nationality Act, 

(a)(43) (1994 & Supp. V 1999).
   Subsequent to our precedent decision, the United States Court of Appeals
for the Ninth Circuit, within whose jurisdiction this case arose, concluded that
felony possession of a firearm in violation of section 12021(a) of the
California Penal Code constitutes an aggravated felony “‘as an offense
described in’ 

(g)(1),” the federal statute criminalizing
possession of a firearm by a felon. United States v. Castillo-Rivera,

, 1025 (9th Cir.) (quoting section 101(a)(43)(E) of the Act),

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cert. denied, 

 (2001). On April 27, 2001, nearly 5 months after
our original decision in the case, the Immigration and Naturalization Service
filed a motion to reconsider our original decision, arguing, among more
substantive points, that the Service is not bound by regulations imposing a
30-day deadline on motions to reconsider in removal proceedings. 

(b)(2) (2001).
   We need not address the Service’s arguments concerning the timeliness of
its motion. Instead, in view of the importance of the matter and the
inconsistency between our prior decision and that of the Ninth Circuit, and
upon a close examination of the statute, we find it appropriate to reconsider
the matter upon our own motion, pursuant to 

(a).
   Upon reconsideration, our prior decision in this matter will be vacated, the
Service’s appeal will be sustained, and the respondent will be ordered
removed from the United States.

                                   I. ISSUE PRESENTED
  The issue before us is whether possession of a firearm by a felon in
violation of section 12021(a)(1) of the California Penal Code is a crime
“described in” section 101(a)(43)(E)(ii) of the Act, and is therefore an
aggravated felony.1

                                            II. FACTS
   The respondent was admitted to the United States as a lawful permanent
resident in 1978. In 1991, when he was 18 years old, he was convicted of
robbery in California and was sentenced to 180 days in jail and 36 months of
probation. On June 4, 1996, the respondent was convicted in the Superior
Court of California for the County of Los Angeles of “possession of a firearm
by a felon—one prior” in violation of section 12021(a)(1) of the California
Penal Code. The respondent was sentenced to 32 months in prison as a result
of this conviction.
   On August 11, 1999, the Service issued a Notice to Appear (Form I-862)
and instituted removal proceedings against the respondent. Initially, he was
charged under section 237(a)(2)(C) of the Act, 

(a)(2)(C)
1
    Section 101(a)(43)(E)(ii) of the Act includes within the definition of an “aggravated felony”
        an offense described in—
           ...
           (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of
        title 18, United States Code (relating to firearms offenses) . . . .



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(Supp. V 1999), as an alien convicted of a firearms offense. Subsequently,
the Service lodged a charge under section 237(a)(2)(A)(iii) of the Act,
alleging that the respondent was convicted of an aggravated felony as defined
in section 101(a)(43)(E)(ii) of the Act.
   The respondent admitted the facts alleged in the Notice to Appear and
conceded that he was removable under section 237(a)(2)(C) of the Act as a
result of his conviction for a firearms offense, but he contested removability
on the aggravated felony charge. The Immigration Judge asked the Service
attorney to identify which of the offenses referenced in section
101(a)(43)(E)(ii) was the basis for the aggravated felony charge. The Service
attorney stated that it was 

(g)(1) (1994).

                III. IMMIGRATION JUDGE’S DECISION
   The Immigration Judge found that the respondent was subject to removal
under section 237(a)(2)(C) of the Act, as an alien convicted of a firearms
offense, but not under section 237(a)(2)(A)(iii) of the Act, as an alien
convicted of an aggravated felony.
   The Immigration Judge found that the respondent’s state crime was not an
aggravated felony because it was not “described in” the federal statute
referenced in the aggravated felony provision, as required. See section
101(a)(43)(E) of the Act. He reached this conclusion because the federal
offense of possession of a firearm by a felon contains an “interstate
commerce” element, whereas the respondent’s state offense did not. The
Immigration Judge concluded that the respondent was not ineligible to apply
for cancellation of removal under section 240A(a) of the Act, 8 U.S.C.
§ 1229b(a) (Supp. V 1999), and he allowed the respondent to fully present his
application for relief from removal. He ultimately granted this relief as a
matter of discretion and terminated removal proceedings. The Service
appealed. Rejecting an argument put forward by the Service, a majority of
this Board upheld the Immigration Judge’s decision in our prior published
order. We now reconsider that decision.

                                IV. ANALYSIS
         A. Comparison of State and Federal Felony Possession
                       of a Firearm Offenses
   To determine whether, on its face, the respondent’s state offense of felony
possession of a firearm is a crime “described in” the aggravated felony
provision at section 101(a)(43)(E) of the Act, we compare the state crime the
respondent committed with the federal crime described in the aggravated

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felony provision. If the respondent’s state crime is “described in” the federal
statute, then the respondent’s crime is an aggravated felony.
   Section 12021(a)(1) of the California Penal Code provides, in relevant part:
     Any person who has been convicted of a felony under the laws of the United States, of
     the State of California, or any other state, government, or country, or of an offense
     enumerated in subdivision (a), (b), or (d) of Section 12001.6, . . . who owns or has in
     his or her possession or under his or her custody or control any firearm is guilty of a
     felony.

(a)(1) (West 1996). The federal statute at 

(g)(1) provides, in relevant part:
     It shall be unlawful for any person—
        (1) who has been convicted in any court of, a crime punishable by imprisonment for
     a term exceeding one year;
        ...
        to ship or transport in interstate or foreign commerce, or possess in or affecting
        commerce, any firearm or ammunition; or to receive any firearm or ammunition
        which has been shipped or transported in interstate or foreign commerce.

   The elements of the state and federal crimes are substantially the same:
knowing possession of a firearm by a person who has been convicted of a
felony. Compare People v. Jeffers, 

 (Cal. Ct. App.
1996) (setting forth the elements of the state crime), with United States v.
Taylor, 

 (10th Cir. 1997) (setting forth the elements of
the federal crime). The state statute, however, lacks the third element of the
federal crime, “affecting interstate or foreign commerce.” This third element,
as acknowledged in our prior order in this matter, is often referred to as the
“jurisdictional element,” which brings the criminal provision within federal
legislative power under the Commerce Clause of the United States
Constitution. See U.S. Const. art. I, § 8, cl. 3; see also United States v.
Lopez, 

 (1995); United States v. Bass, 

(1971).
   In view of the above, the key to the meaning of the Act is to determine
whether section 101(a)(43)(E) encompasses a state crime having no federal
jurisdictional element, such as the respondent’s offense, as a crime “described
in” the enumerated federal statutes. If so, the purely “jurisdictional element”
of the federal statute loses its significance for determining whether the state
crime is an aggravated felony.
   For the many reasons that follow, we find that the respondent’s state crime
is indeed “described in” section 101(a)(43)(E)(ii) of the Act, and is thus an
aggravated felony regardless of whether it includes the purely jurisdictional
element of “affecting interstate commerce.” Our decision in Matter of
Vasquez-Muniz, supra, is therefore overruled.

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                    B. State Offenses as Aggravated Felonies
   When we engage in statutory interpretation, our first and most critical
inquiry must be the plain meaning of the statute. In making this inquiry, it is
important that we examine the language in its proper place within the context
and design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 

 (1988); Matter of Alvarado-Alvino, Interim Decision 3391 (BIA
1999).
   The aggravated felony provision appears at section 101(a)(43) of the Act.
We understand this provision to function as an identifier of certain categories
of criminal conduct to which the Act attaches negative immigration
consequences. Pursuant to this function, section 101(a)(43)(E)(ii) includes
within the definition of an “aggravated felony” an offense described in

(g)(1). The aggravated felony provision enumerates other
offenses as well, and in its penultimate sentence states the following:
    The term [aggravated felony] applies to an offense described in this paragraph whether in
    violation of Federal or State law and applies to such an offense in violation of the law of
    a foreign country for which the term of imprisonment was completed within the previous
    15 years.

Section 101(a)(43) of the Act.
   This penultimate sentence, governing the enumeration of crimes in section
101(a)(43) of the Act, refers the reader to all of the crimes “described in” the
aggravated felony provision. Thus, in effect, the penultimate sentence
provides a guide for interpreting the significance of the list of enumerated
crimes in subparagraph (E): namely, the crimes specified are aggravated
felonies regardless of whether they fall within the jurisdiction of the federal
government, a state, or, in certain cases, a foreign country. The language
clearly reflects a concern over substantive offenses rather than any concern
about the jurisdiction in which they are prosecuted.
   The language in the statute draws no distinctions among the various
subparagraphs of section 101(a)(43) that would enable us to conclude that
some describe aggravated felonies, regardless of jurisdiction, but others do
not.2 Consequently, even before we arrive at the question of precisely what
crime is “described in” subparagraph (E), we know that the broader language
appearing at the end of section 101(a)(43) clearly applies to it. If we are to

2
  The only exception is in section 101(a)(43)(P)(i) of the Act, where more specific language
requiring a “violation of” 

 overrides the general direction of the penultimate
sentence of section 101(a)(43) as a whole. This sole exception does not negate the general
rule.

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give this language meaning, it must render irrelevant any purely jurisdictional
element appearing in the crimes enumerated.
   Furthermore, owing to the nature of federal and state jurisdictional
requirements, it would be very rare for a state to include federal jurisdictional
language within its criminal statutes. Consequently, if state crimes must
include a federal jurisdictional element in order to be classified as aggravated
felonies, then virtually no state crimes would ever be included in section
101(a)(43)(E), despite the statute’s language to the contrary.
   Our conclusion in this regard is substantially confirmed by language
appearing elsewhere in the Act, referring directly to state convictions under
section 101(a)(43)(E). Specifically, section 241(a)(4)(B)(ii) of the Act,

(a)(4)(B)(ii) (Supp. V 1999), authorizes the Attorney General
to remove certain criminal aliens before their sentences are complete, but
carves out an exception for those aliens who are confined by a state pursuant
to a final conviction for an offense described in section 101(a)(43)(E).3 This
reference to state convictions for offenses listed under subparagraph (E)
would be superfluous if only federal crimes would ever likely be “described
in” that subparagraph.
   Thus, the Act, in its overall design, in the language of the aggravated felony
provision itself, and in the very specific reference noted above, clearly
contemplates that subparagraph (E) of the aggravated felony provision
encompasses state crimes.
                    C. Foreign Offenses as Aggravated Felonies
   Equally revealing about the statutory design is the Act’s inclusion of
violations of foreign law as aggravated felonies. Most foreign statutes,
arising as they generally do under circumstances not akin to our federal
system, are extremely unlikely to contain jurisdictional elements similar to

3
    Section 241(a)(4)(B) of the Act states, in relevant part:
        The Attorney General is authorized to remove an alien in accordance with applicable
      procedures under this Act [chapter] before the alien has completed a sentence of
      imprisonment—
           ...
          (ii) in the case of an alien in the custody of a State (or a political subdivision of a
        State), if the chief State official exercising authority with respect to the incarceration of
        the alien determines that (I) the alien is confined pursuant to a final conviction for a
        nonviolent offense (other than an offense described in section 101(a)(43)(C) or (E)), (II)
        the removal is appropriate and in the best interest of the State, and (III) submits a
        written request to the Attorney General that such alien be so removed.



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those appearing in our federal statutes. Yet the statutory directive in the
penultimate sentence of section 101(a)(43) requires us to regard certain
violations of foreign law as aggravated felonies.
   If the decision of the Immigration Judge in this matter were to be followed,
the “foreign law” element of the aggravated felony provision would be
significantly undercut. A number of grave offenses clearly “described in” the
subparagraphs of section 101(a)(43) of the Act would be found to have no
foreign counterpart and would not be classified as aggravated felonies despite
the statutory direction to so classify them.
   For example, we would likely be constrained to find that smuggling aliens
through Canada, or issuing ransom demands for hostages in Mexico, or
stockpiling explosive materials in France, or even being convicted in a foreign
jurisdiction of possession of a firearm by a felon are not aggravated felonies,
because, unlike the federal statutes referenced in the Act, these foreign crimes
are unlikely to have a federal jurisdictional element. See sections
101(a)(43)(C), (D), (E), (H), (N) of the Act.
   These consequences would contravene the explicit statutory directive
Congress has provided in the penultimate sentence of section 101(a)(43): to
identify the specified crimes as aggravated felonies whether in violation of
federal or state law, or the law of a foreign country. It would be unreasonable
to assume that Congress intended to exclude certain specified crimes from the
definition of an aggravated felony simply because they lack a jurisdictional
element that would be meaningless to the enacting foreign or state
jurisdiction.
   We find this review of the statutory language clear and sufficient to
conclude that a violation of the California statute at issue here is an
aggravated felony under the Act.

                    D. United States v. Castillo-Rivera
   Finally, we observe that in United States v. Castillo-Rivera, supra, the
Ninth Circuit arrived at the same conclusion we reach here for many of the
same reasons enunciated above, which were set forth in the dissent from our
prior order. To not reach this conclusion, the Ninth Circuit observed, would
“undermine the language of the aggravated felony statute and the evident
intent of Congress” and would “essentially eliminate the possibility of any
analogous state conviction qualifying as an aggravated felony.” Id. at
1023-24. We concur with the court’s assessment.




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                                   V. CONCLUSION
   As the foregoing discussion demonstrates, both the language and the design
of the Act evince a clear purpose: by virtue of the statutory directive in the
penultimate sentence of section 101(a)(43), the aggravated felony provision
reflects the intent of Congress to reach certain types of crimes and classify
them as aggravated felonies, regardless of which jurisdiction prosecuted the
offense.
   Upon reconsideration of this matter, therefore, and, in part, to assure
uniformity of law nationwide on this important question, we concur with the
conclusion of the Ninth Circuit in United States v. Castillo-Rivera, supra.
We hold that the respondent’s crime, possession of a firearm by a felon in
violation of section 12021(a)(1) of the California Penal Code, is “described
in” section 101(a)(43)(E)(ii) of the Act, and is an aggravated felony,
regardless of whether it contains the federal jurisdictional element of affecting
interstate commerce contained in 

(g)(1). Consequently, the
respondent is removable under section 237(a)(2)(A)(iii) of the Act and is not
eligible for cancellation of removal under section 240A(a) of the Act.
Accordingly, the Service’s appeal will be sustained.
   ORDER: Upon reconsideration, the appeal of the Immigration and
Naturalization Service is sustained, and our prior decision in this matter is
vacated.
   FURTHER ORDER: The decision of the Immigration Judge is vacated,
and the respondent shall be removed from the United States.
CONCURRING OPINION: David B. Holmes, Board Member
   I respectfully concur. 1
   The determinative issue for me remains whether the penultimate sentence
of section 101(a)(43) of the Immigration and Nationality Act, 

(a)(43) (1994 & Supp. V 1999), should be read in part as “simply
another manner of stating that the aggravated felony definition includes any
state offense that ‘would have been an offense described in . . . this section
if a circumstance giving rise to Federal jurisdiction had existed.’” Matter of
Vasquez-Muniz, Interim Decision 3440, at 11 n.7 (BIA 2000) (quoting

(e)(1)). In reconsidering this question, I am not unaffected
by the relative ease with which the United States Court of Appeals for the
Ninth Circuit concluded that a prior state conviction for being a felon in
possession of a firearm in violation of section 12021(a) of the California

1
    I assume the reader’s familiarity with previous and present Board opinions in this case.


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Penal Code constitutes a conviction for an aggravated felony, as an offense
“described in” 

(g)(1) (1994). United States v. Castillo-Rivera, 

 (9th Cir.), cert. denied, 

 (2001).
   I am also persuaded, however, by the present majority’s reference to
section 241(a)(4)(B)(ii) of the Act, 

(a)(4)(B)(ii) (Supp. V
1999), which authorizes the Attorney General to remove certain nonviolent
criminal aliens from the United States prior to completion of their sentence of
imprisonment, but expressly precludes the removal of an alien in the custody
of a state or political subdivision of a state if the alien is confined pursuant
to a final conviction for an offense “described in” section 101(a)(43)(E). This
provision clearly contemplates that state offenses are included within the
offenses “described in” section 101(a)(43)(E) of the Act. I am satisfied that
this provision would be left with no meaning unless the penultimate sentence
of section 101(a)(43) of the Act is read as another manner of stating that
section 101(a)(43) includes offenses described therein by reference to federal
criminal law, without regard to the federal jurisdictional element.
Accordingly, I concur in the result in this case.
CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg,
Board Member, in which Neil P. Miller, Noel Ann Brennan, Cecelia M.
Espenoza , and Juan P. Osuna, Board Members, joined
   I respectfully concur in part and dissent in part.
   A motion to reconsider pursuant to 

(b) (2001) is a “‘request
that the Board reexamine its decision in light of additional legal arguments,
a change of law, or perhaps an argument or aspect of the case which was
overlooked.’” Matter of Cerna, 

, 402 n.2 (BIA 1991)
(emphasis added)(quoting Hurwitz, Motions Practice Before the Board of
Immigration Appeals, 

, 90 (1992)), aff’d, Cerna v.
INS, 

 (11th Cir. 1992); see also Board of Immigration Appeals
Practice Manual, § 5.7(a), at 70 (“A motion to reconsider . . . identifies a
change in law that affects a prior Board decision and asks the Board to re­
examine its ruling.” (emphasis added)). Although a motion to reconsider
ordinarily must be filed within 30 days of a final decision by the Board, we
may accept and adjudicate an untimely motion sua sponte. 

(a).
   The Immigration and Naturalization Service advances its motion to
reconsider our precedent decision in Matter of Vasquez-Muniz, Interim
Decision 3440 (BIA 2000), based on a decision of the United States Court of
Appeals for the Ninth Circuit, the jurisdiction in which this case arises.
United States v. Castillo-Rivera, 

 (9th Cir.), cert. denied,

 (2001). The Service also contends that it is not bound by the
rules governing motions to reconsider. Like the majority, I would not reach

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the issue of untimeliness presented by the Service’s untimely motion. I
conclude that a change in the law of the circuit in which our precedent arises
warrants that we reconsider sua sponte, if necessary, our prior holding. See
Matter of G-D-, Interim Decision 3418 (BIA 1999). Accordingly, I concur
that we should entertain the Service’s motion.
   In addition, I recognize that we are free to “refine, reformulate, and even
reverse [our] precedents in the light of new insights and changed
circumstances.” Davila-Bardales v. INS, 

 (1st Cir. 1994) (citing
Rust v. Sullivan, 

 (1991)). However, although I concur
with the result reached in this opinion, I disagree with the approach and
analysis relied on by the majority. I concur only because this case arises in
the jurisdiction of the Ninth Circuit, which has issued a decision that is at
odds with our precedent. In light of the Board’s prior precedent and ongoing
practices, and the facts and circumstances of this case, I would only go so far
as to follow the ruling of the Ninth Circuit within the confines of that circuit.

                                     I. ISSUE
   The issue before us is essentially a procedural one: whether the Ninth
Circuit’s decision in United States v. Castillo-Rivera, supra, constitutes a
change in the law governing the result reached in our prior decision in Matter
of Vasquez-Muniz, supra, and warrants modifying that decision accordingly.
Substantively, the underlying issue is whether a state conviction for
possession of a firearm is for an offense “described in” 

(g)(1)
(1994), which makes it unlawful for a felon to possess a firearm in or
affecting interstate commerce, and thus an aggravated felony under section
101(a)(43)(E)(ii) of the Immigration and Nationality Act, 

(a)(43)(E)(ii) (Supp. V 1999).

             II. RECONSIDERATION AND REVISION OF
                   MATTER OF VASQUEZ-MUNIZ
   In United States v. Castillo-Rivera, supra, the Ninth Circuit held that
possession of a firearm in violation of section 12021(a) of the California
Penal Code is an “offense described in” 

(g)(1), which makes
it unlawful for any person convicted of a crime punishable for more than
1 year to “possess in or affecting commerce any firearm or ammunition.” Id.
at 1022, 1023 (holding that “the commerce nexus requirement of § 922(g) ‘is
merely a jurisdictional basis’”). This ruling is contrary to our prior decision
in Matter of Vasquez-Muniz, supra, in which we held that the lack of an
interstate commerce requirement in the California statute sufficiently


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distinguished it from the federal law and thus precluded a conviction under
California law from being considered a conviction for an aggravated felony
offense.
    Inasmuch as the Ninth Circuit had not previously ruled on this question, the
issuance of the circuit court’s decision in United States v. Castillo-Rivera
constitutes a change of law affecting our decision in Matter of Vasquez-Muniz. See Matter of 

. Moreover, we are obliged to
acquiesce to the decisions of federal courts of appeals in cases arising in the
jurisdiction of a particular circuit. Matter of K-S-, 

(BIA 1993); Matter of Anselmo, 

 (BIA 1989); see also
Singh v. Ilchert, 

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

 (9th Cir. 1987), cert. denied,

 (1991)). Therefore, I agree that we must modify our original
decision to conform to circuit court law.
    However, I do not agree that we must necessarily render a precedent
decision applying the Ninth Circuit’s interpretation nationwide. And even if
it is appropriate to issue a new nationwide precedent, I cannot subscribe to
the reasoning adopted by the majority.
    First, it has not been our practice to simply follow the decision of one
circuit court that has overruled our prior precedent. To the contrary, when
such circumstances have arisen recently, we have modified our precedent
only as it applies in the circuit that issued the conflicting ruling, simply
acquiesced to the circuit holding in unpublished cases, or waited more than
5 years from the time of the circuit court’s ruling to modify our precedent for
application nationwide. Second, the majority has not offered any compelling
reason why we should modify our precedent based on the decision of one
circuit court. To the extent that the majority relies on the text of section
101(a)(43) of the Act, I believe it has misread the statutory language and, in
any event, I would not find the language in question to resolve the substantive
question presented here.
                      A. Treatment of Prior Precedent
   Three recent cases illustrate our treatment of precedent decisions issued
by the Board in relation to contrary rulings from the circuit courts of appeals.
Most recently, we issued a precedent decision in Matter of Olivares, 

 (BIA 2001), acknowledging that as a result of a decision of the Fifth
Circuit, “a conviction for Texas felony DWI is not classifiable as a crime of
violence conviction under 

(b) for purposes of removability.”

 at 150 (citing United States v. Chapa-Garza, 

 (5th Cir.
2001)). The ruling of the Fifth Circuit conflicted with our precedent decision


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in Matter of Puente, Interim Decision 3412 (BIA 1999), which involved a
conviction under the very same law that was the subject of the Fifth Circuit’s
decision in United States v. 

    In Matter of Olivares, supra, we held only that “we will not apply our
decision in Matter of Puente, supra, in cases arising within the jurisdiction
of the Fifth Circuit.” Id. at 150. Notably, we did not overrule Matter of
Puente, and we have continued to apply that decision outside the Fifth
Circuit.
   Nevertheless, despite this most restrictive of decisions, several Board
Members expressed concerns over issuing a precedent decision that would
acknowledge the change in Fifth Circuit law. In a concurring opinion in
Matter of Olivares, supra, two of my colleagues cautioned the Board to
move slowly and carefully before publishing a decision and overruling
controlling precedent. Two other colleagues opposed issuing another
precedent in a Texas DWI case without addressing other Board precedent
decisions impacted by recent Fifth Circuit decisions. Yet these members
have joined the majority decision here, without any explanation why they
would have refrained from issuing Matter of Olivares as a precedent at all,
but have no difficulty with our issuing a precedent of nationwide effect in this
case.
   Next, in Matter of Roldan, Interim Decision 3377 (BIA 1999), we held that
an alien whose guilty plea to possession of a controlled substance was
vacated and dismissed after probation was considered to have a conviction
for immigration purposes. We ruled that the policy exception in our prior
decision in Matter of Manrique, Interim Decision 3250 (BIA 1995), which
accorded federal first offender treatment to certain drug offenders who had
received state rehabilitative treatment, had been superseded by the enactment
of section 101(a)(48)(A) of the Act, which gives no effect to state
rehabilitative provisions. On appeal, the Ninth Circuit granted the
respondents’ petitions and vacated the order contained in our precedent.
Lujan-Armendariz v. INS, 

 (9th Cir. 2000) (addressing the cases
of both Roldan-Santoyo and another respondent, Lujan-Armendariz).
   The Ninth Circuit ruled that addition of the 1996 statutory definition of a
“conviction” did not repeal the federal first offender statute, under which
expungement of a first-time offense for simple possession does not constitute
a conviction, or alter its rule requiring similar treatment for first-time state
drug possession offenders. Nevertheless, to date, we have not adopted this
rule for application nationwide, nor have we even published a precedent
indicating that we would no longer apply Matter of Roldan in cases arising
in the Ninth Circuit. Cf. Matter of Olivares, supra.


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   Finally, in Goldeshtein v. INS, 

 (9th Cir. 1993), the Ninth
Circuit reversed our decision in Matter of Goldeshtein, 

(BIA 1991) (finding that conspiracy to violate United States currency laws
relating to structuring financial transactions to avoid currency reports
constituted a crime involving moral turpitude). For the following 6 years, we
presumably acquiesced to the Ninth Circuit’s decision in unpublished
decisions, but applied our precedent to the contrary in all appeals arising in
circuits other than the Ninth Circuit. No other circuit courts spoke to the
issue, and it took us almost 7 years to acknowledge the Ninth Circuit’s
decision and modify our precedent for application nationwide. See Matter of
L-V-C-, Interim Decision 3382 (BIA 1999). In the meantime, noncitizens
charged with having been convicted of a crime involving moral turpitude of
the type addressed in Matter of 

 in jurisdictions outside
the Ninth Circuit continued to be subject to deportation and removal.
   In none of these three cases favoring the position urged by the noncitizen
respondents, did we act immediately to issue a new precedent with
nationwide effect following issuance of a circuit court decision contradicting
the reasoning in our existing precedent. Instead, at best, we have issued a
precedent limited to the circuit in which the circuit court’s reasoning
contradicted that in our existing precedent. Matter of Olivares, supra. At
worst, we have failed to acknowledge the circuit court decision and have not
acted to modify our precedent. Specifically, in Matter of Roldan, we have
allowed a precedent decision that is at odds with circuit court law to remain
in effect without some modification for nearly 2 years.
   The majority has not distinguished these cases and has offered no reason
why we should act differently here. By contrast, based on the ruling of one
circuit court, the majority now modifies our precedent to hold that any
noncitizen convicted of possession of a firearm after a prior felony has been
convicted of an aggravated felony.
                   B. Examination of Statutory Language
   The majority appears to have rejected our decision in Matter of Vasquez-Muniz, supra, in its entirety. I would not do so, and cannot agree with the
majority, as it has not proposed any reason for us to do so that I find
persuasive.
   The Service previously had the opportunity to raise its arguments, and
those arguments were considered and ruled on in our original decision. A
motion to reopen or to reconsider does not amount to an adjudication of the
issues anew, but “asserts that at the time of the Board’s previous decision, an
error was made.” Matter of Lopez, Interim Decision 3343, at 2 (BIA 1998).


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   In our prior decision in Matter of Vasquez-Muniz, supra, we reached our
determination whether a particular crime was an aggravated felony under
section 101(a)(43) by looking to the elements of the offense. I would not
change that approach and, in fact, the majority does not suggest that we do so
here.
    In particular, in our prior decision in Matter of Vasquez-Muniz, supra, we
found that the word “describe” is defined as “‘To narrate, express, explain,
set forth, relate, recount, narrate, depict, delineate, portray [or] sketch.’
Black’s Law Dictionary 445 (6th ed. 1990).” Id. at 7. Looking at the entire
statutory section, we concluded that we could find no instance in which the
term was used simply to mean that which is “‘analogous or similar in nature
to that which is being compared.’” Id. at 8 (quoting the definition proferred
by the Service). We concluded that each usage of the phrase “described in”
in the relevant statutory and regulatory provisions reflects a more specific
meaning than something merely “similar to” that which is referenced; rather,
in each instance, the phrase “described in” clearly refers to something
specifically set forth elsewhere in the statute or regulation. See id. at 7-8
(citing, e.g., sections 101(b)(1)(E)(ii), (f)(3), 204(a)(1)(A), (B), 210(b)(7)(B),
216(c)(1)(A), 236(c)(2), 245(c), (e)(1) of the Act, 

(b)(1)(E)(ii), (f)(3), 1154(a)(1)(A), (B), 1160(b)(7)(B),
1186a(c)(1)(A), 1226(c)(2), 1255(c), (e)(1) (1994 & Supp. IV 1998); 

(t), 204.6(j)(3)(ii), 236.1(c)(8), 240.26(b)(1)(i)(E) (2000)).
   Furthermore, in our original decision in Matter of Vasquez-Muniz, supra,
we rejected the Service’s argument that section 101(a)(43) of the Act would
be rendered meaningless unless we accepted that every one of its provisions
could be established by a violation of state law. We ruled that
  [t]his language makes clear that an offense that meets the description in
  one of the subsections of section 101(a)(43) is an aggravated felony
  whether the crime is in violation of federal or state law. This phrase does
  not mean that every subsection of section 101(a)(43) necessarily describes
  an offense in violation of both federal and state law. In fact, it is clear that
  such is not the case. See, e.g., sections 101(a)(43)(L), (N) of the Act.
Id. at 10.
   We disagreed that reaching such a conclusion would be inconsistent with
the Board’s previous rulings related to deportability resulting from an alien’s
conviction for an aggravated felony described in section 101(a)(43)(B) of the
Act. We found “no inconsistency in this regard” and pointed out that the
definition set forth in section 101(a)(43)(B) of the Act is not formulated in the
same manner as that in section 101(a)(43)(E). Id.


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   In so ruling, we recognized the historical background underlying the
legislation that added the provision making clear that a state or foreign
conviction would also constitute an aggravated felony conviction. We noted
that it was once a matter of dispute whether a previous version of the
aggravated felony definition in section 101(a)(43), which referenced “any drug
trafficking crime as defined in [

(c)(2)],” was limited only to
federal “drug trafficking crime[s].” See Matter of Barrett, 

 (BIA 1990). In Barrett, a majority of the Board concluded that it was
not so limited and remanded the record for a determination whether the
respondent’s state conviction “include[d] all the elements necessary for a
conviction under 

(a)(1).” Id. at 178 (emphasis added).
Subsequently, Congress amended the definition of an aggravated felony in
section 101(a)(43) of the Act to include state and foreign offenses. See
Matter of Davis, 

, 540, 542 (BIA 1992).
   I cannot agree with the majority that the “penultimate sentence” of section
101(a)(43) of the Act conclusively overrides the meaning of the terms
“described in” or “defined in” as used by Congress in various subparagraphs
of that section. For example, section 101(a)(43)(F) states that a crime of
violence is “as defined in” 

. Sections 16(a) and 16(b) define
a crime of violence in a particular way. We do not take that provision to
mean that any state designation of a crime as a crime of violence satisfies the
terms of section 101(a)(43)(F) of the Act. Rather, we look to see if the
elements of the state offense correspond to the specific terms used in either
subsection (a) or (b) of section 16 of Title 18 of the United States Code. See
Matter of Sweetser, Interim Decision 3390 (BIA 1999). Congress’ addition
of the last sentence in section 101(a)(43) of the Act simply clarifies that the
convictions described therein are not limited to convictions under federal law.
See United States v. Castillo-Rivera, supra, at 1023 (“The wording of

(a)(43) makes evident that Congress clearly intended state
crimes to serve as predicate offenses . . . .”).
   In fact, the Ninth Circuit ultimately determined that state offenses were
covered under section 101(a)(43)(E) of the Act based on the distinction
between the terms “defined in” and “described in.” See United States v.
Sandoval-Barajas, 

 (9th Cir. 2000) (“Plainly the offense is
not ‘defined in’ the federal and state statute in the same way. But the federal
statute says that this federal crime only has to be ‘described in’ the state
statute . . . .” (footnote omitted)); 

 (“The subsection at issue used the
phrase ‘as described in’ rather than ‘as defined in.’”). Thus, even if the last
sentence of section 101(a)(43) of the Act serves to overcome a jurisdictional
element contained in 

(g)(1) and requires a broader reading of
section 101(a)(43)(E), it only controls the outcome in this one particular case

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because of the “described in” language of section 101(a)(43)(E) of the Act.
I maintain that the specific language used in the subparagraphs of section
101(a)(43) of the Act still determines the scope of offenses that may be
reached by each particular subparagraph.

                              III. CONCLUSION
   I concur in the result reached by the majority, as I agree that this result is
required by the principle of acquiescence to circuit court rulings in the circuit
in which our decision arises. I dissent, however, from the remainder of the
reasoning relied on by the majority.




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