YANEZ

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                 In re Ismael YANEZ-Garcia, Respondent
                             File A91 334 042 - Chicago
                                Decided May 13, 2002
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

   The determination whether a state drug offense constitutes a “drug trafficking crime” under

(c)(2) (2000), such that it may be considered an “aggravated felony” under
section 101(a)(43)(B) of the Immigration and Nationality Act, 

(a)(43)(B)
(2000), shall be made by reference to decisional authority from the federal circuit courts of
appeals, and not by reference to any separate legal standard adopted by the Board of
Immigration Appeals. Matter of K-V-D-, Interim Decision 3422 (BIA 1999), overruled.
Matter of L-G-, 

 (BIA 1995), and Matter of Davis, 

 (BIA
1992), modified.

FOR RESPONDENT: Carol A. Waldman, Esquire, Chicago, Illinois

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Amy C. Hoogasian,
Assistant District Counsel

BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;
        SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE,
        GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN, OSUNA,
        OHLSON, HESS, and PAULEY, Board Members. Concurring and Dissenting
        Opinion: ROSENBERG and ESPENOZA, Board Members.
FILPPU, Board Member:

   In a decision dated March 14, 2000, an Immigration Judge sustained the
charges of removability against the respondent, denied his requests for relief
from removal, and directed that he be removed to Mexico. The respondent
has appealed from that decision, arguing that the Immigration Judge erred as
a matter of law in finding him removable as an alien convicted of an
aggravated felony on the basis of his two state convictions for drug
possession, and requesting that the record be remanded so that he may apply
for cancellation of removal under section 240A(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(a) (2000).
   We will dismiss the respondent’s appeal. 1 Moreover, we have reexamined
our precedent decision in Matter of K-V-D-, Interim Decision 3422 (BIA
1
  The respondent’s request for oral argument is denied pursuant to 

(e) (2001),
and his request for a waiver of the appeal fee is granted pursuant to 

(c) (2001).

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1999), where we held that state drug offenses may be considered aggravated
felonies for immigration law purposes only if they are “analogous” to
offenses punishable as felonies under the federal drug laws. As explained
below, we now withdraw from Matter of K-V-D-, supra, as well as from those
portions of Matter of L-G-, 

 (BIA 1995), and Matter of
Davis, 

 (BIA 1992), that are inconsistent with our present
decision.
   A number of federal circuit courts of appeals have developed standards for
answering the question whether a state felony drug conviction constitutes an
aggravated felony under section 101(a)(43)(B) of the Act, 

(a)(43)(B) (2000). We will now follow those standards in immigration
cases arising within those circuits. Further, for reasons stated below, in
immigration cases arising within circuits that have not yet had occasion to
consider this question, we will apply the standards adopted by the majority
of the circuit courts.

                               I. BACKGROUND
    The respondent is a native and citizen of Mexico and a lawful permanent
resident of the United States. The record reflects that he has been convicted
twice in the Circuit Court of Cook County, Illinois, of the offense of
possession of cocaine in violation of chapter 720, section 570/402(c) of the
Illinois Compiled Statutes: (1) on January 5, 1998, for which he was fined
and sentenced to 1 year of probation; and (2) on May 27, 1999, for which he
was sentenced to 90 days of incarceration and 18 months of probation. His
offenses are classified as “class 4 felonies” under Illinois law, and are
therefore punishable by a term of imprisonment of between 1 and 3 years.
See 730 Ill. Comp. Stat. Ann. 5/5-8-1(a)(7) (West 1999). On the basis of
these convictions, the Immigration and Naturalization Service charged the
respondent with removability as an alien convicted of an aggravated felony
under section 237(a)(2)(A)(iii) of the Act, 

(a)(2)(A)(iii)
(2000), and as an alien convicted of an offense relating to a controlled
substance under section 237(a)(2)(B)(i) of the Act. The Immigration Judge
sustained both charges, and this timely appeal followed.2
    The respondent raises a variety of arguments on appeal. Two of these
arguments challenge the conclusion that his Illinois offenses are analogous to
an offense punishable as a felony under federal drug laws, as required by
Matter of K-V-D-, supra. The respondent correctly notes that his state
convictions, which were for simple possession of cocaine, can only be
analogous to a federal felony if his first conviction was “final” when his
2
  The respondent does not challenge the Immigration Judge’s conclusion that he has been
convicted of a controlled substance violation for which he is removable as charged under
section 237(a)(2)(B)(i) of the Act.

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second possession offense occurred. See 

(a)(1) (2000).
Consequently, he argues that his first conviction for cocaine possession—
which resulted in a deferral of judgment and a sentence of probation under the
Illinois first offender statute—was not “final” when he committed his second
offense, and that the two convictions, taken together, are therefore not
analogous to felony possession, which is punishable under 

(a)(1). Alternatively, the respondent contends that, even if his first
conviction was final at the time of his second offense, that second offense is
not truly analogous to a federal felony because he never received an
“enhancement information” from a federal prosecutor, see 

(a)(1) (2000), as required for the imposition of enhanced punishment,
based on prior convictions, under 

(a)(1).
    The respondent’s appeal raises substantial legal questions and illustrates
some of the difficulties that can arise when applying the analytical approach
that we adopted in Matter of K-V-D-, supra. Specifically, when determining
whether a state drug conviction is analogous to a federal felony conviction,
we are confronted with the fact that any hypothetical federal prosecution
would have been governed by procedural and sentencing requirements
entirely different from those that were, in fact, employed by the convicting
state. To resolve this dilemma, we would therefore need to develop a
standard for determining whether state finality rules, which may themselves
be ambiguous, are analogous to the finality rules governing felony drug
prosecutions under federal law. Furthermore, we would need a standard to
determine whether the mandatory procedural requirements governing such
federal prosecutions are analogous to those that applied in the convicting
state.3
    Completely apart from these analytical difficulties, moreover, is the fact
that Matter of K-V-D- interprets 

(c)(2) (1994)—the federal
criminal statute incorporated into the aggravated felony definition by section
101(a)(43)(B) of the Act—in a manner that has not generally been followed
by the federal criminal law courts. Indeed, in one criminal case, a circuit
court explicitly rejected the legal rationale underlying Matter of K-V-D-. See
United States v. Hernandez-Avalos, 

 (5th Cir.) (disagreeing with
the Board’s interpretation of § 924(c)(2) and rejecting the notion that
§ 924(c)(2) may be interpreted differently in immigration and criminal cases),
cert. denied, 

 (2001). In response to Hernandez-Avalos, we

3
   In addition to these analytical problems, some courts have expressed concern that the
hypothetical approach adopted in Matter of K-V-D- could, under certain circumstances, result
in unduly harsh consequences for persons convicted of misdemeanors under state law.
Gerbier v. Holmes, 

, 311 n.12 (3d Cir. 2002); Steele v. Blackman, 

 (3d Cir. 2001).


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issued a decision withdrawing from Matter of K-V-D- in cases arising within
the Fifth Circuit. See Matter of Salazar, 

 (BIA 2002).

                                          II. ISSUE
   The analytical difficulties inherent in the hypothetical felony approach, the
broad adoption of a different approach by a substantial number of federal
circuit courts, and the outright rejection of Matter of K-V-D- by one circuit
all lead us to reexamine the question whether state drug convictions classified
as felonies under applicable state law, but not necessarily under federal law,
constitute “drug trafficking crimes” under 

(c)(2), such that
they may be considered aggravated felonies under section 101(a)(43)(B) of
the Act.
                               III. LEGAL DISCUSSION
                           A. Relevant Statutory Authority
   Section 101(a)(43) of the Act defines the categories of offenses that merit
treatment as “aggravated felonies” under the immigration laws and provides
that the phrase “aggravated felony” “applies to an offense described in this
paragraph, whether in violation of Federal or State law.” Included in the
“aggravated felony” definition is
    illicit trafficking in a controlled substance (as described in section 102 of the Controlled
    Substances Act), including a drug trafficking crime (as defined in § 924(c) of title 18, United
    States Code).

Section 101(a)(43)(B) of the Act. 4 The term “drug trafficking crime”
referenced in this portion of the aggravated felony definition is, in turn,
defined as follows:
    [T]he term “drug trafficking crime” means any felony punishable under the Controlled
    Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act
    (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901
    et seq.).

(c)(2).
   The Controlled Substances Act (“CSA”) defines the term “felony” as “any
Federal or State offense classified by applicable Federal or State law as a
felony.” 

(13) (2000). This definition also applies to the
Controlled Substances Import and Export Act and the Maritime Drug Law
4
  The convictions at issue in this case do not fall clearly within the phrase “illicit trafficking,”
and we therefore look to whether the convictions fall within the meaning of the phrase “drug
trafficking crime.” See generally Matter of Davis, supra, at 540-41.

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Enforcement Act. See 

(b) (2000); 46 U.S.C. App. § 1903(i)
(2000).
                            B. Relevant Case Law
    The federal circuit courts of appeals and this Board agree that a state drug
offense constitutes a “drug trafficking crime” under 

(c)(2) if
it is (1) punishable under one of the three enumerated federal drug statutes
and (2) a “felony.” The first requirement is consistent with our decision in
Matter of Barrett, 

 (BIA 1990), where we held that a state
drug offense may be considered an aggravated felony only if it is analogous
to an offense, such as possession, sale, or distribution of a controlled
substance, that would be punishable under one of the three acts referenced in
§ 924(c)(2). To date, no circuit court of appeals has expressed disagreement
with this conclusion.
    The issue in this case turns on the second requirement identified above,
i.e., whether the state offense is a “felony.” As previously noted, this is a
question that we have addressed and attempted to resolve on several previous
occasions. Most recently, in Matter of K-V-D-, supra, we affirmed our prior
decisions in Matter of L-G-, supra, and Matter of Davis, supra, both of
which held that a state drug conviction qualified as a “drug trafficking crime”
for immigration purposes only if it was analogous to an offense that would be
punishable as a felony under one of the three federal drug statutes referenced
in § 924(c)(2). To be punishable as a federal felony under this standard, the
analogous federal offense must be one that carries a term of imprisonment of
more than 1 year. See 

(a)(5) (2000).
    When we issued our decisions in Matter of Davis and Matter of L-G-, few
of the federal circuit courts of appeals had interpreted the relevant language
of § 924(c)(2). Therefore, in the absence of compelling circuit authority, we
construed § 924(c)(2) in a manner that we believed would both fairly resolve
the cases before us and provide a coherent “federal standard” that could be
applied uniformly throughout the country, without regard to the idiosyncrasies
of state law. During the 4 years following our decision in Matter of L-G-,
however, an increasing number of federal circuit courts issued decisions, in
the context of federal criminal law, interpreting § 924(c)(2) in a manner
contrary to our approach. This development prompted us to revisit the issue
in Matter of K-V-D-, supra.
    In Matter of K-V-D-, we concluded that, in the interest of a uniform
immigration policy, our interpretation of § 924(c)(2) should be retained in
cases arising under the federal immigration laws, even though the federal
circuit court in whose jurisdiction the proceedings arose had adopted a
different interpretation of the same statute in its criminal law cases. The clear
trend among the circuit courts has been toward interpreting the term “felony,”

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as used in § 924(c)(2), by reference to the definition set forth at 

(13), which permits a state drug offense that is classified as a felony
under the law of the convicting state to qualify as a felony under the CSA
even if it could only be punished as a misdemeanor under federal law. See
United States v. 

 United States v. Ibarra-Galindo,

 (9th Cir. 2000), cert. denied, 

 (2001); United
States v. Simon, 

 (11th Cir.), cert denied, 

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

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

 (10th Cir. 1996); United States v. Restrepo-Aguilar, 

 (1st Cir. 1996).
   By contrast, two circuit courts have adopted an interpretation of
§ 924(c)(2) identical to that articulated in our decisions, at least in
immigration cases. See Gerbier v. Holmes, 

 (3d Cir. 2002);
Aguirre v. INS, 

 (2d Cir. 1996). The Third Circuit has not yet
had occasion to interpret the relevant language of § 924(c)(2) in the criminal
context; however, it has concluded, both in the interest of national uniformity
and as matter of proper statutory construction, that the Board’s interpretation
should be adopted in immigration cases. See Gerbier v. 

. As the Second Circuit made clear in Aguirre, however, it adopted
the Board’s approach out of a desire for a uniform national rule, and not
necessarily because it agreed with our interpretation of 

(c)(2). See Aguirre v. INS, supra, at 317 (stating that “[t]he statutory
point [regarding the proper interpretation of § 924(c)(2)] is fairly debatable”).
Indeed, the Second Circuit has subsequently confined Aguirre to cases arising
in the immigration context; in criminal cases, it has adopted the approach of
the majority of its sister circuits. See United States v. Pornes-Garcia,

 (2d Cir.), cert. denied, 

 (1999).
   We recognize that Gerbier and Pornes-Garcia have either explicitly or
implicitly endorsed our conclusion, adopted in Matter of K-V-D-, supra, that
the language of § 924(c)(2) may, in the interest of a uniform immigration
policy, be interpreted differently in immigration cases and criminal cases.
Importantly, however, several circuits that adopt the dominant interpretation
of § 924(c)(2) have either expressly rejected this “bifurcated” approach or
cast it into serious doubt. See United States v. 

 (rejecting Pornes-Garcia in the Fifth Circuit and stating, “We fail to see
the validity of interpreting [§ 924(c)(2)] differently based on this distinction
between sentencing and immigration cases; it is, after all, the same words of
the same phrase from the same statute that is being interpreted in each
instance.”); Ruiz-Romero v. Reno, 

 (5th Cir. 2000)
(same); United States v. 

 at 1340 n.2 (stating in the
Ninth Circuit that “we have never even suggested that we would interpret

(c)(2) differently in applying the Immigration and Nationality
Act than we now interpret it in applying the Sentencing Guidelines”). Given

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this division of authority among the circuits as to whether the language of
§ 924(c)(2) may be subject to variable interpretations, it appears that a truly
uniform interpretation of section 101(a)(43)(B) of the Act will remain an
elusive goal. Because uniformity is presently unattainable in this context, we
find that continued adherence to the standard adopted in Matter of K-V-D-,
Matter of L-G-, and Matter of Davis, no longer makes sense, particularly in
light of the interpretive problems with that “hypothetical” approach discussed
previously. Consequently, we conclude that the best approach is one of
deference to applicable circuit authority.
                  C. Reexamination of Matter of K-V-D-
   The foregoing discussion shows that a majority of the federal circuit courts
of appeals that have interpreted the pertinent language of § 924(c)(2) have,
either explicitly or implicitly, disagreed with our rulings in Matter of K-V-D-,
Matter of L-G-, and Matter of Davis. Moreover, they have done so for
substantive legal reasons, based upon their interpretation of the relevant
statutory language. While Pornes-Garcia and Gerbier indicate that there may
be policy considerations that would justify the adoption of differing
interpretations of § 924(c)(2) in the criminal and immigration contexts, we
nonetheless conclude that, under the present circumstances, these policy
considerations are superseded by our overriding obligation to follow the
authoritative decisions of the federal circuit courts of appeals regarding
interpretation of a provision of federal criminal law that is referenced in the
Immigration and Nationality Act. See Matter of Anselmo, 

(BIA 1989). Accordingly, we withdraw from our decision in Matter of
K-V-D-. We also withdraw from Matter of L-G- and Matter of Davis to the
extent that they are inconsistent with our ruling today.
        IV. INTERPRETATION OF § 924(c)(2) IN CIRCUITS
                    THAT HAVE SPOKEN
   Specifically, we hold that because the meaning of the phrase “drug
trafficking crime” in 

(c)(2) is a matter of federal criminal law,
we shall defer to the interpretation given that statute by the federal circuit
courts of appeals that have spoken on the issue. Those courts need not defer
to our reading of § 924(c)(2). See Adams Fruit Co., Inc. v. Barrett, 

 (1990) (explaining that deference does not extend to an agency’s
interpretation of a judicially enforceable portion of a statute); see also
Francis v. Reno, 

 (3d Cir. 2001) (rejecting the Board’s
interpretation of the phrase “crime of violence” under 

 (2000)
and section 101(a)(43)(F) of the Act and stating that “[t]he BIA is not charged
with administering 

, and that statute is not transformed into an

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immigration law merely because it is incorporated into the INA by
§ 1101(a)(43)(F)”); Dalton v. Ashcroft, 

 (2d Cir. 2001)
(applying de novo standard of review to the Board’s interpretation of the
phrase “crime of violence” under 

 and section 101(a)(43)(F)
of the Act). Thus, in those circuits that have spoken, the determination
whether a state drug conviction constitutes a “drug trafficking crime” under
§ 924(c)(2), and therefore an aggravated felony under section 101(a)(43)(B)
of the Act, shall be made by reference to applicable circuit law, and not by
reference to any legal standard articulated by this Board.
          V. INTERPRETATION OF § 924(c)(2) IN CIRCUITS
                  THAT HAVE NOT YET SPOKEN
   Where, as here, a division of authority exists among the circuits with
respect to a legal issue, there is no approach we can adopt that will achieve
uniformity. For the reasons stated below, however, we hold that, where the
relevant circuit court of appeals has not yet had occasion to interpret the
phrase “drug trafficking crime” in § 924(c)(2), we will apply the interpretation
of that phrase that has been adopted by the majority of the federal circuit
courts.
   In doing so, we do not intend to articulate a rule of general applicability for
resolving issues which have been the subject of judicial interpretation but
which have not yet been addressed in the jurisdiction of immediate concern.
We have, however, four principal reasons, unique to the narrow circumstances
before us, for applying the majority interpretation of § 924(c)(2) in circuits
that have not yet had occasion to interpret that statute for themselves. First,
the dominant interpretation has been adopted by a solid majority of the
circuits that have addressed it, including several whose precedents govern a
very significant proportion of federal immigration cases. Second, the majority
interpretation of § 924(c)(2) bears considerable logical force and flows
coherently and intuitively from the relevant statutory language.5 Third, the
contrary view, which has only been embraced as a matter of statutory
construction by a divided panel of the Third Circuit,6 requires adjudicators
to engage in an often-convoluted hypothetical analysis that can be difficult to

5
  A number of circuits that have adopted the majority interpretation have found it significant
that § 924(c)(2), by its terms, defines a “drug trafficking crime” as “any felony punishable
under” the CSA and other enumerated federal laws, rather than as “any offense punishable as
a felony under” those laws. See United States v. 

; United
States v. Restrepo-Aguilar, supra, at 366 n.9.
6
   As previously noted, the Second Circuit adopted the Board’s decision in Matter of L-G-,
supra, for immigration cases only, out of a desire for nationwide uniformity, and not
necessarily because it agreed with our interpretation of § 924(c)(2) as a matter of statutory
construction. See Aguirre v. INS, supra; United States v. 

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apply in practice. Fourth, the Attorney General has not, to our knowledge,
espoused an interpretation of § 924(c)(2), in the context of federal criminal
prosecutions, that is different from that embraced by the majority of the
circuit courts.
              VI. APPLICATION TO RESPONDENT’S CASE
   The respondent’s removal hearing was held in Chicago, Illinois. Our
determination whether the respondent’s Illinois drug offenses constitute “drug
trafficking crimes” under 

(c)(2) must be made by reference
to standards articulated by the United States Court of Appeals for the Seventh
Circuit. The Seventh Circuit has not yet had occasion to interpret the
relevant language of § 924(c)(2) in any precedent decision. 7 Consequently,
pursuant to our previous discussion, we will apply the standard embraced by
the majority of those circuits that have had occasion to interpret it.
   As a threshold matter, we find that the respondent’s state convictions for
possession of cocaine are analogous to offenses punishable under the CSA.
See Matter of 

 Cocaine is a controlled substance under

(c), sch. II(a)(4) (2000), and possession of a controlled
substance violates 

(a). We now turn to the second relevant
inquiry under section 101(a)(43)(B), i.e., whether the respondent’s state
offenses are “felonies” within the meaning of § 924(c)(2).
   As previously noted, the respondent’s offenses are classified as felonies
under Illinois law. Under the interpretation of § 924(c)(2) adopted by the
majority of circuit courts, an offense classified as a felony under the law of
the convicting jurisdiction is deemed to be “classified by applicable Federal
or State law as a felony,” in accordance with 

(13).
Moreover, because the respondent’s offenses carried a maximum term of
imprisonment of more than 1 year under Illinois law, they are also
encompassed within the federal definitions of a “felony” and a “felony drug
offense” set forth at 

(a)(5) and 

(44),
respectively. There is thus no question that the respondent’s offenses
constitute felonies punishable under the CSA, such that they may be
considered “drug trafficking crimes” under § 924(c)(2) and aggravated
felonies under section 101(a)(43)(B) of the Act. Hence, we need not now be
concerned with how the Seventh Circuit would resolve potential issues arising
by virtue of a particular state’s felony/misdemeanor classification system.
   The concurring and dissenting opinion asserts that our application of the
majority interpretation of § 924(c)(2) is impermissibly retroactive in this case
7
  See United States v. Santillan-Garcia, No. 00 C 6873, 

, at *3 & n.2
(N.D. Ill. Nov. 14, 2001) (adopting the majority interpretation of § 924(c)(2) in a
denaturalization case arising within the Seventh Circuit and predicting that the Seventh Circuit
would adopt the same approach).

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because the respondent relied on the Board’s prior decisions when he entered
his guilty pleas. Matter of Yanez, 

, 417 (BIA 2002)
(Rosenberg and Espenoza, concurring and dissenting). We do not agree. On
the contrary, we find that the respondent has not demonstrated, and cannot
demonstrate, any such reliance.
   The record contains no evidence that the respondent in the present case
actually relied upon our decisions when he entered his guilty pleas. Indeed,
the respondent could not possibly have relied upon Matter of K-V-D- because
that decision was not issued until December 1999, more than 6 months after
his second and final guilty plea in May 1999.8 Although Matter of L-G- was
issued in 1995, the respondent cannot seriously argue that he reasonably
relied upon that decision when entering his guilty pleas. First, it is entirely
possible that the respondent’s second Illinois conviction for drug possession
would have rendered him removable as an alien convicted of an aggravated
felony even under the “analogous federal felony” approach embraced by
Matter of L-G-. See 

(a)(1) (indicating that a second
possession offense is punishable as a felony under the federal Controlled
Substances Act). The success of the respondent’s appeal depended not upon
our following the Matter of L-G- standard, but rather upon our acceptance of
his attempt to distinguish Matter of L-G- based on technical arguments
regarding the finality of his first drug possession conviction. 9 The respondent
could not reasonably have assumed that we would accept those arguments
when he entered his guilty pleas. Our recognition that those arguments raise
“substantial legal questions” does not imply that we find them persuasive.
Matter of Yanez, supra, at 392.
   Second, and equally important, Matter of L-G- stands in part for the very
principle that informs our decision today—that we must follow applicable
8
   Although the concurring and dissenting opinion speculates that the respondent relied upon
unpublished decisions of this Board that predated Matter of K-V-D-, such reliance would have
been unwarranted under Seventh Circuit law. See Guillen-Garcia v. INS, 

 (7th Cir. 1995) (holding that “[u]npublished opinions of the Board of Immigration
Appeals have no precedential value” and do not necessarily reflect the policy of the Board).
9
   Both the respondent and the concurring and dissenting opinion argue that the respondent’s
first conviction for cocaine possession was not “final” at the time of his second possession
offense—within the meaning of 

(a)(1)—because he was still on probation at
that time. Yet our reading of applicable Illinois law suggests that expiration of the 30-day
appeal period provided under Rule 604(d) of the Rules of the Illinois Supreme Court placed
the legal validity of the respondent’s first conviction beyond legal challenge, despite the
imposition of probation. See, e.g., People v. Johnson, 

 (Ill. App. Ct.
2002) (citing People v. Stueve, 

 (Ill. 1977), and holding that “[w]hen
no direct appeal is taken from an order of probation and the time for appeal has expired, a
reviewing court is precluded from reviewing the propriety of that order in an appeal from a
subsequent revocation of that probation, unless the underlying judgment of conviction is void”
for lack of jurisdiction).

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circuit authority when adjudicating cases involving the definition of a “drug
trafficking crime” set forth in § 924(c)(2). Specifically, we acknowledged in
Matter of L-G- that we were bound to follow the Second Circuit’s decision
in Jenkins v. INS, 

 (2d Cir. 1994), in cases arising within that
court’s jurisdiction despite the fact that Jenkins conflicted with our
interpretation of § 924(c)(2). Matter of L-G-, supra, at 101-02. Although we
determined that our contrary reading of § 924(c)(2) would continue to be
applied outside the Second Circuit, our approach to the Jenkins case strongly
suggested that our reading of § 924(c)(2) was not authoritative, and that it
would give way in the face of other circuit cases rejecting our approach. Id.
Between our decision in Matter of L-G- and the respondent’s second guilty
plea in May 1999, four additional circuits issued decisions agreeing with
Jenkins and implicitly or explicitly rejecting our contrary approach. See
United States v. Simon, 

 (11th Cir. 1999); United States v.
Briones-Mata, 

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

 (10th Cir. 1996); United States v. Restrepo-Aguilar, 

(1st Cir. 1996).
   Given the manifest absence of actual reliance by the respondent, as well
as the lack of clear legal authority warranting such reliance at the time of his
pleas, we find nothing inappropriate about applying the majority interpretation
of § 924(c)(2) in the respondent’s removal proceedings.10
10
    It is also not clear to us how a reviewing court would approach the retroactivity question
raised by the concurring and dissenting opinion in a case where an alien provides persuasive
evidence of actual detrimental reliance. In the first instance, it is questionable whether our
construction of § 924(c)(2) may properly be designated a “rule,” as asserted by the concurring
and dissenting opinion. Matter of Yanez, supra, at 413 (Rosenberg and Espenoza, concurring
and dissenting). As the concurring and dissenting opinion concedes, the circuit courts need not
accord deference to our “interpretation” of § 924(c)(2) because “[s]ection 924(c)(2) is a
criminal statute over which we, as an agency, have no particular expertise.” Id. at 409. In
light of this fact, it is not apparent to us how our deference to the circuit courts’ authoritative
interpretation of federal criminal law can constitute a retroactive application of federal
immigration law.
   The concurring and dissenting opinion also suggests that our decision today runs afoul of
the “presumption against retroactivity” embodied in INS v. St. Cyr, 

 (2001), and
Landgraf v. USI Film Products, 

 (1994). Matter of Yanez, supra, at 415
(Rosenberg and Espenoza, concurring and dissenting). Yet it is by no means clear that the
presumption against retroactivity of legislative enactments applies in the context of
administrative adjudications. See NLRB v. Bell Aerospace, 

 (1974)
(acknowledging the NLRB’s power to announce a new rule through adjudication rather than
formal rulemaking and placing the burden of proving detrimental reliance on the opponents of
the rule); SEC v. Chenery Corp., 

 (1947) (acknowledging the SEC’s power
to announce a new rule through adjudication and noting that the likely retroactive effect of
such an adjudication was “not necessarily fatal to its validity”). Indeed, at least one court has
observed that “retroactive application of new principles in adjudicatory proceedings is the rule,
                                                                                   (continued...)

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             VII. RESPONDENT’S REMAINING ARGUMENTS
   In addition to the arguments previously discussed, the respondent contends
on appeal that his first cocaine possession offense did not result in a
“conviction” for immigration purposes. Instead, he argues that it merely
resulted in a conditional deferral of judgment and sentence of probation under
a state rehabilitative statute. We find that the respondent’s January 5, 1998,
plea of guilty, which was followed by the imposition of a fine and a restraint
on his liberty in the form of probation, meets the definition of a “conviction”
set forth at section 101(a)(48)(A)(ii) of the Act. See Matter of Punu, Interim
Decision 3364 (BIA 1998). In any event, the respondent’s second state
conviction for felony possession of cocaine is sufficient, standing alone, to
render him removable as an alien convicted of an aggravated felony under the
majority interpretation of § 924(c)(2) that has been applied in this case.
   Further, the respondent asserts that an interpretation of § 924(c)(2) that
permits his simple possession offenses to constitute “drug trafficking crimes”
is violative of his right to due process of law. We are aware of no
constitutional doctrine that prohibits Congress from defining criminal law
terms of art, such as “drug trafficking crime,” in whatever manner it sees fit.
In any event, however, this Board lacks authority to pass judgment on the
constitutionality of the Immigration and Nationality Act or any provision
thereof. See, e.g., Matter of Rodriguez-Carrillo, Interim Decision 3413 (BIA
1999); Matter of C-, 

 (BIA 1992).
                                 VIII. CONCLUSION
   In conclusion, we find that either of the respondent’s Illinois convictions for
felony possession of cocaine renders him removable as an alien convicted of
10
     (...continued)
not the exception.” Molina v. INS, 

 (1st Cir. 1992) (upholding the Board’s
“retroactive” application of the definition of a “conviction” adopted in Matter of Ozkok,

 (BIA 1988)).
   Finally, even assuming that our statements regarding the meaning of § 924(c)(2) constitute
“rules” with potential retroactive effect, we disagree with the concurring and dissenting opinion
that our present adjudication is impermissibly retroactive under the five-part test referenced
by the Seventh Circuit in NLRB v. Wayne Transp., 

, 751 & n.8 (7th Cir. 1985)
(upholding NLRB’s retroactive application of a new labor law rule in adjudicatory
proceedings). While the issue in this case is admittedly not one of first impression, we reiterate
our prior finding that the respondent did not, and could not, rely on our prior decisions when
he entered his guilty pleas in Illinois because those cases did not represent a “well-established
practice” at that time. See Matter of Yanez, supra, at 417 (Rosenberg and Espenoza,
concurring and dissenting). In light of the respondent’s possible removability even under the
Matter of L-G- standard, moreover, it is not clear how he is “burdened” by our current
decision. See id.

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an aggravated felony under section 237(a)(2)(A)(iii) of the Act and precludes
him from applying for cancellation of removal under section 240A(a) of the
Act. The respondent has not requested any other form of relief from removal.
Accordingly, the Immigration Judge properly ordered the respondent removed
to Mexico.
   ORDER: The appeal is dismissed.
CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg
and Cecelia M. Espenoza, Board Members
   We respectfully concur in part and dissent in part.
   The statutory language classifying a “drug trafficking crime” as an
aggravated felony offense can accommodate either the reading we have given
it for the past 12 years or the changed reading that the majority now has
determined to impose. See section 101(a)(43)(B) of the Immigration and
Nationality Act, 

(a)(43)(B) (2000) (referring to 

(c)(2) (2000)). At issue, in practical terms, is whether a state felony
conviction for simple possession of a controlled substance should be
interpreted so as to render a respondent removable based on a conviction for
an aggravated felony, whether it should preclude an otherwise qualified
refugee from being granted asylum or withholding of removal, and whether it
should disqualify a lawful permanent resident from establishing eligibility for
cancellation of removal, prevent him from demonstrating good moral
character, and, ultimately, foreclose him from eligibility for naturalization. 1
See, e.g., sections 101(f)(8), 208(b)(2)(B), 240A(a)(3), 241(b)(3)(B), 316 of
the Act, 

(f)(8), 1158(b)(2)(B), 1229b(a)(3), 1231(b)(3)(B),
1427 (2000).
   The resolution of these questions turns, in large part, on the values we
accord the various factors militating in favor of one reading or the other. The
majority emphasizes the interests of expediency and acquiescence, and
de-emphasizes the interests of narrow construction, uniformity, and due
process.
   We do not contend that the interpretation posited by the majority is
unsupported or unsupportable. We are concerned, however, that the majority
has simply abandoned a long-standing and defensible interpretation, which is
legitimate for immigration law purposes, for a seemingly more straightforward

1
   The determination that a conviction for possession of a controlled substance is an aggravated
felony also will render the lawful permanent resident ineligible for voluntary departure under
section 240B(a)(1) of the Act, 8 U.S.C. § 1229c(a)(1) (2000); bar the lawful permanent
resident from reentering the United States for 20 years without the permission of the Attorney
General under sections 212(a)(9)(A)(i) and (ii)(II) of the Act, 

(a)(9)(A)(i) and
(ii)(II) (2000); and penalize the alien with imprisonment of up to 20 years under section
276(b)(2) of the Act, 

(b)(2) (2000).

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reading that does not require the Board to engage in any analysis of whether
a conviction constitutes an immigration violation. Although the rationale
posed by the majority may be attractive, in fact, the circuit court decisions
interpreting 

(c)(2) are not as clear cut as the majority opinion
would lead one to believe. Moreover, the majority’s new interpretation has
a significantly adverse impact on every respondent convicted of state felony
possession of a controlled substance. At the very least, our modification of
a rule that, for over a decade, determined whether a conviction for possession
of a controlled substance constitutes an aggravated felony should be applied
only prospectively.

                 I. SECTION 101(a)(43)(B) OF THE ACT
   The statutory language defining an aggravated felony offense under section
101(a)(43)(B) of the Act, quoted in full in the majority opinion,
accommodates more than one reading. See, e.g., Matter of L-G-, 

 (BIA 1995); cf. Jenkins v. INS, 

 (2d Cir. 1994),
overruled by Aguirre v. INS, 

 (2d Cir. 1996). It is undisputed
that this language is subject to judicial interpretation. Gerbier v. Holmes,

 (3d Cir. 2002) (“Finding the phrase to be ambiguous, we
must look to legislative history.”).
   Indeed, over the years, the reference to 

(c) in section
101(a)(43)(B) of the Act has been subject to differing interpretations at the
federal court level. See, e.g., United States v. Restrepo-Aguilar, 

 (1st Cir. 1996) (“There is no reason to suppose that either Congress
or the Sentencing Commission, in defining ‘aggravated felony’ by reference
to 

(c)(2), which in turn specifically relies on the CSA, was
unaware of or chose to dismiss the definition of ‘felony’ provided there.”);
cf. Gerbier v. 

 (“Although § 924(c)(2) directs us to the
Controlled Substances Act, § 924(c)(2) does not reference § 802(13) and,
moreover, that section defines “felony” only for purposes of sentence
enhancements.”). In addition, the United States Court of Appeals for the
Second Circuit has followed our ruling in Matter of L-G-, supra, that “for
purposes of the discretionary waiver, an offense qualifies as an ‘aggravated
felony’ only if . . . it is analogous to a felony under the federal statutes
enumerated in 

(c)(2).” United States v. Pornes-Garcia, 

 (2d Cir.) (distinguishing sentence enhancement cases in
which an offense is deemed a “drug trafficking crime” under section
101(a)(43)(B) if “(1) the offense is punishable under the Controlled
Substances Act, and (2) it is a felony under either state or federal law”
(emphasis added)), cert. denied, 

 (1999).



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     A. Board Interpretation of the Term “Drug Trafficking Crime”
                       as Defined in § 924(c)(2)
   The Board’s prior interpretation of § 924(c)(2) as applied to immigration
violations is long-standing. In Matter of Barrett, 

 (BIA
1990), we examined the term “aggravated felony” relating to a drug offense2
and concluded that the definition of a “drug trafficking crime” under

(c)(2) was broad enough to encompass state drug
convictions. Id. at 175 (observing that “Congress referred to felonies
‘punishable under’ not ‘convictions obtained under’” the Controlled
Substances Act). 3 Subsequently, in Matter of Davis, 

 (BIA
1992), we concluded that a state drug conviction either had to be a felony
under the law of the convicting state and contain a “trafficking element,” i.e.,
involve “the unlawful trading or dealing of a controlled substance,” or had to
be for a crime “analogous to an offense punishable under one of the federal
acts specified in 

(c)(2), and the offense to which it is
analogous is a ‘felony’ under federal law.” Id. at 543 (emphasis added).
   In Matter of L-G-, supra, we considered whether the definition of a
“felony” in the Controlled Substances Act at 

(13) (1994)
indicated that every state felony was included in the definition of a “drug
trafficking crime” under § 924(c)(2), and we rejected that approach. Id. at 93
(“[W]e do not find that . . . ‘drug trafficking crime’. . . encompasses all of the
state, as well as federal, felony offenses that are punishable under the federal
drug laws, regardless of whether the offenses are punishable as felonies or
misdemeanors under those federal laws.”). We reasoned that because the
definition of the term “felony” in 

 is specifically limited to
its use “in this subchapter,” and 

 does not incorporate the
definitions of 

, it was more appropriate to look to the
definition of a “felony” within Title 18, where § 924(c)(2) is located. Matter
of L-G-, supra, at 94; see also id. at 104 (Holmes, concurring). Specifically,
we found that the term “any felony” under § 924(c)(2) refers to any class of
felony found under 

(a) (1994), and, accordingly, a “drug
trafficking crime” under 

(c)(2) “is therefore any felony


2
   The classification of a conviction for certain drug offenses as an “aggravated felony” was
incorporated into the Act by section 7342 of the Anti-Drug Abuse Act of 1988, 

 Stat. 4181, 4469-70 (effective Nov. 18, 1988) (“ADAA”).
3
  The definition of an “aggravated felony” was amended by the Immigration Act of 1990,

 Stat. 4978, to include the phrase “any illicit trafficking in any
controlled substance” and to make clear that the term “aggravated felony” applies to offenses
“whether in violation of Federal or State law.” See Gerbier v. 

 (“This
change, in effect, codified the BIA’s holding in Barrett.”) (citing H.R. Rep. No. 681, pt. 1, at
147 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6553).

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violation of the federal drug laws, i.e., any offense . . . where the maximum
term of imprisonment authorized exceeds 1 year.” Id. at 94.
   The fundamental elements of our prior interpretation, set forth in Matter of
Barrett, Matter of Davis, and Matter of L-G-, have not been disturbed by the
Attorney General at any time during the 12-year period in which we have
applied them. Our interpretation in those cases has been applied to literally
thousands of cases adjudicated in the period since Matter of L-G- was
decided 7 years ago. Moreover, our interpretation of § 924(c)(2) has been
implicitly reaffirmed by Congress, which took no action in its comprehensive
revisions of the Act in 1996 to amend section 101(a)(43)(B) of the Act or to
alter our interpretation of that provision.
   In contrast, in the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Division C of 

 Stat. 3009-546
(“IIRIRA”), Congress specifically examined our precedents, addressing what
constitutes a conviction and imposition of a sentence, and expressly modified
our interpretation of these removal-relevant concepts. In doing so, Congress
specifically singled out Board interpretations that it disapproved. See, e.g.,
H.R. Conf. Rep. No. 104-828 (1996) (“Joint Explanatory Statement”).
However, Congress did not object to our reasoning in Matter of L-G-, supra,
and did not modify section 101(a)(43)(B) of the Act.4
   It is axiomatic that Congress is deemed to be aware when it acts, not only
of prior interpretations of a statute, but also of preexisting case law.
Lorillard v. Pons, 

 (1978) (“Congress is presumed to be
aware of an administrative or judicial interpretation of a statute.”); 2A C.
Sands, Sutherland on Statutory Construction § 49.09 (4th ed. 1973). The
presumption that Congress acted with such knowledge is particularly
appropriate where Congress “exhibited both a detailed knowledge of the
[incorporated] provisions and their judicial interpretation and a willingness
to depart from those provisions regarded as undesirable or inappropriate for
incorporation.” Lorillard v. 

. Equally important,
Congress is not presumed to change well-established legal precedent by
silence. American Hosp. Ass’n v. N.L.R.B., 

 (1991) (“If
this amendment had been intended to place the importation limitation on the
scope of the Board’s rulemaking powers . . . we would expect to find some
expression of that intent in the legislative history.”). 5 Congress’ selectivity
4
  This situation is inapposite to that in Almendarez-Torres v. United States, 

(1998), where the Court declared that later immigration enactments did not provide a basis for
construing prior provisions of section 276(b) of the Act. 

. Here, by contrast,
Congress did not disturb an existing agency interpretation published in a controlling precedent.
5
  As was the case in INS v. St. Cyr, 

 (2001), the legislative history is significant
because, despite its comprehensive character, it contains no evidence that Congress specifically
considered the interpretation of section 101(a)(42)(B) of the Act. Cf. Harrison v. PPG
                                                                                (continued...)

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in modifying our interpretation of certain key definitions relating to criminal
convictions, but leaving other interpretations intact, “strongly suggests that but
for those changes Congress expressly made, it intended to incorporate fully
the [existing] remedies and procedures.” Lorillard v. 

.
Although the fact that Congress did not expressly address and reverse our
interpretation of the term “drug trafficking crime” in § 924(c)(2) does not
preclude the majority from reconsidering the bases for our original
interpretation and modifying our reading of the statute, Congress’ inaction
certainly signaled that our existing interpretation was a valid one.
B. Circuit Court Interpretation of the Term “Drug Trafficking Crime”
                      as Defined in § 924(c)(2)
   It cannot be denied that a majority of circuit courts have differed with our
interpretation of § 924(c)(2) and have concluded that the statute requires only
that the offense be either a state or federal “felony punishable” under the
Controlled Substances Act. United States v. Restrepo-Aguilar, supra, at 364;
see also Gerbier v. 

 (“To date, in addition to the First
Circuit, the Second, Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits have
also espoused this view in the Sentencing Guidelines context.”). However,
with the exception of the Fifth Circuit, none have explicitly extended their
sentencing guidelines rulings to cases arising in the immigration context. See
United States v. Hernandez-Avalos, 

 (5th Cir.) (ruling that
“[w]e fail to see the validity of interpreting this statute differently based on
this distinction”), cert. denied, 

 (2001). Moreover, at the
present time, two circuit courts have expressly left room for a different
interpretation in the immigration context. Nevertheless, in the face of these
varying interpretations and varying considerations, the majority abdicates to
the rulings of circuit courts of appeals in criminal sentencing guidelines cases
interpreting § 924(c)(2).
   In Matter of K-V-D-, Interim Decision 3422 (BIA 1999), decided before
United States v. 

 we recognized that none of the
circuit courts that differed with our interpretation in Matter of L-G-, supra,
had expressly adopted a contrary interpretation in a case arising in the



5
    (...continued)
Industries, Inc., 

 (1980) (Rehnquist, J., dissenting) (“In a case where the
construction of legislative language such as this makes so sweeping and so relatively
unorthodox a change as that made here, I think judges as well as detectives may take into
consideration the fact that a watchdog did not bark in the night.”), cited in Chisom v. Roemer,

, 396 n.23 (1991) (citing A. Doyle, Silver Blaze, in The Complete Sherlock
Holmes 335 (1927)).

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immigration context.6 For instance, in United States v. 

the Second Circuit recognized that “[t]he issue here is whether that same
narrow construction [which was adopted by the Board] applies to section
2L1.2(b)(1)(A) of the Sentencing Guidelines.” 

 (emphasis added).
Although the Second Circuit did reconsider its ruling in Jenkins v. INS,

 (2d Cir. 1994), deciding to defer to Matter of L-G-, supra, the
court did not merely defer without a reasoned opinion. See Aguirre v. INS,
supra; see also United States v. 

 cf. Matter of Yanez,

, 400 (BIA 2002).
   Rather, in Pornes-Garcia, the Second Circuit explained clearly that the
basis for the court’s reconsidered ruling in Aguirre was its interest in
nationwide uniformity. Id. at 147. The court acknowledged that the rule that
the same term appearing in different portions of a single act is taken to have
the same meaning in each appearance is not without its exceptions. Id.
(citations omitted). Quoting the United States Supreme Court in Atlantic
Cleaners & Dyers, Inc. v. United States, 

 (1932), the
Pornes-Garcia court reasoned that “[w]here the subject matter to which the
words refer is not the same . . . or the conditions are different, . . . the
meaning well may vary to meet the purposes of the law.” United States v.

 (finding that the differing interpretations of
§ 924(c)(2) were warranted by the differing purposes of the provisions
incorporating that term). Thus, in the face of government arguments that it
should reconsider its deferential ruling in Aguirre v. INS, the Second Circuit
expressly concluded that the phrase “any felony” in 

(c)(2)
may be interpreted differently for purposes of applying the sentencing
guidelines as opposed to enforcing the terms of the Immigration and
Nationality Act. Id. at 147-48.
   In addition, in Gerbier v. 

 the Third Circuit endorsed the
Board’s analysis in Barrett, Davis, and L-G-, ruling that “[w]e find that the
language in § 924(c)(2), which by its own terms is a federal sentence
enhancement based on a firearms offense, applies only to federal crimes of
violence or drug trafficking crimes.” Id. at 308. The Gerbier court
explained that “[w]hatever may be the proper construction in a Sentencing
Guidelines case, we do not agree that the plain meaning of ‘drug trafficking
crime’ under § 924(c) in the deportation context encompasses state felony
convictions that would merely be misdemeanors under federal law when there
is otherwise no trafficking component to the state law conviction.” Id. at 307.
The court concluded that a “hypothetical federal felony” analysis was
appropriate, meaning that the court should examine whether the conviction

6
   Following the Fifth Circuit’s ruling in United States v. 

 we
specifically acquiesced to its interpretation in cases arising in that circuit. Matter of Salazar,

 (BIA 2002).

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was for a state drug possession offense that, if prosecuted under federal law,
would amount to a felony. Id. at 308-10. The Gerbier court specifically
looked to the 1988 amendments to § 924(c)(2), which “did nothing to change
the fact that the felony violation must be of federal, not state, law.” Id. at
309.
   Furthermore, while the majority relies on the reasoning of the First Circuit
in United States v. Restrepo-Aguilar, supra, at 366, that court recognized
outright that “[t]he decision in L-G- did not involve any consideration of the
aggravated felony sentence enhancement at issue here.” The court observed,
“At stake in L-G- was, instead, the petitioner’s right to apply for asylum and
request withholding of deportation under 

 & 1253(h).” 

Although the court acknowledged that our L-G- decision turned on the
definition of an “aggravated felony” in 

(a)(43), which, in
relevant part, is the same as that provided in application note 7 to U.S.S.G.
2L1.2, it ruled that “the relevant context was different.” 

 (emphasis
added). The First Circuit concluded that our recognition of the particular
policy considerations underlying asylum and withholding determinations
“does not convince us that Congress, in creating the aggravated felony
sentence enhancement . . . intended the same result.” 

 (emphasis added).
                   C. Majority Opinion and Board Values
    The majority abjures making any independent interpretation and insists it
is only acquiescing to the decisions of the circuit courts of appeals. In fact,
however, the majority elects to interpret the statutory language so that the
term “felony,” as defined in the Controlled Substances Act at 

(13), requires treating any state felony offense that is punishable under
the statutes enumerated in 

(c)(2) as an aggravated felony,
without regard to whether the offense would be punishable as a felony under
federal law. In justification of this change, the majority essentially relies on
three points. First, the majority raises concerns that “[t]he respondent’s
appeal raises substantial legal questions and illustrates some of the
difficulties that can arise when applying the analytical approach we adopted
in Matter of K-V-D-, supra.” Matter of Yanez, supra, at 392 (emphasis
added). Second, the majority articulates its concerns that Matter of K-V-D-
interprets 

(c)(2) “in a manner that has not generally been
followed by the federal criminal law courts.” 

 Third, the majority
concludes that because “uniformity is presently unattainable in this context
. . . continued adherence to the standard adopted in Matter of K-V-D-, Matter
of L-G-, and Matter of Davis, no longer makes sense.” 

.
    In short, the majority points out that the legal issues raised by the
respondent are troublesome if we must construe them under our prior law.
It would be much easier to simply follow the rulings of the federal circuit

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courts of appeals in a related but not identical context, and the countervailing
policy goal of applying a federal standard resulting in a uniform enforcement
of the immigration law cannot be achieved anyway. We cannot agree with
these reasons for abandoning our prior interpretation. If we are going to opt
for a changed interpretation, we need better reasons.
   As indicated above, 

(c) is a sentence enhancement statute,
which elevates the penalty that may be imposed in the criminal context for
certain offenses committed with firearms. We do not dispute that the circuit
courts owe our prior interpretation, made in the deportation and removal
context, little or no deference. Section 924(c)(2) is a criminal statute over
which we, as an agency, have no particular expertise. Gerbier v. 

 at 302 n.2 (citing Drakes v. Zimski, 

 (3d Cir.
2001)); cf. Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 

 (1984). However, a majority of the federal circuit
courts that have interpreted the phrase “drug trafficking crime” have done so
in the context of sentence enhancement cases addressing the definition of an
“aggravated felony” as defined in section 101(a)(43)(B) of the Act. Gerbier
v. 

 at 308 n.9.
   Notably, in Matter of L-G-, supra, we stated that “[w]e find this less
expansive interpretation of ‘drug trafficking crime’ consistent with the
statutory history of 

(c)(2).” Id. at 94 (emphasis added). In
altering this long-standing interpretation of section 101(a)(43)(B) of the Act
for immigration enforcement purposes, the majority gives no consideration to
the principle that in construing the statute, our role is to apply the removal
provisions of the Act narrowly. See Fong Haw Tan v. Phelan, 

 (1948) (recognizing that “deportation is a drastic measure and at times the
equivalent of banishment or exile” (citing Delgadillo v. Carmichael, 

 (1947))); see also United States v. 

(recognizing the Board’s “narrow” construction); Reyes-Hernandez v. INS,

 (7th Cir. 1996) (recognizing the harsh consequences of
deportation).
   The Supreme Court has stated clearly that “we will not assume that
Congress meant to trench on [the immigrant’s] freedom beyond that which is
required by the narrowest of several possible meanings of the words used.”
Fong Haw Tan v. 

 (emphasis added). 7 The Court’s
decision in INS v. St. Cyr, 

 (2001), reflects that this rule applies
7
   We have followed this rule in more than 30 precedent decisions issued since 1949. See,
e.g., Matter of Farias, 

 (BIA 1996; A.G., BIA 1997); Matter of Tiwari,

 (BIA 1989); Matter of Andrade, 

 (BIA 1974); Matter of
G-, 

 (BIA 1960; A.G. 1961); Matter of K-, 

 (BIA 1949). In
so doing, we have consistently found that questions of deportability must be resolved in the
alien’s favor. Matter of Serna, 

 (BIA 1992); Matter of Chartier,

 (BIA 1977).

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even to interpretations of the plain language of the statute under the first
prong of the test prescribed in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., supra, at 842. INS v. St. 

(recognizing “‘the longstanding principle of construing any lingering
ambiguities in deportation statutes in favor of the alien’” (quoting INS v.
Cardoza-Fonseca, 

 (1987))). Thus, we are obliged to opt
for the more narrow reading, i.e., the one that will result in less harsh removal
consequences.
   Moreover, the majority decision dismisses the uniformity concerns
expressed in Matter of L-G-, supra, as unattainable.8 In fact, however, the
lack of uniformity created by the majority’s interpretation will be equal to or
greater than that currently existing under our interpretation in L-G- and
K-V-D-. Under our most recent ruling in Matter of K-V-D- we acknowledged
that we were required by principles of acquiescence to follow those circuit
court decisions interpreting § 924(c)(2) in the context of immigration
enforcement, and we have adhered to these principles. See Matter of
Salazar, 

 (BIA 2002). Accordingly, we must acquiesce to
the rulings of the Second and Third Circuits, which, to date, have followed
our interpretation in Matter of L-G-. See Matter of K-V-D-, supra; Matter of
Anselmo, 

 (BIA 1989).
   In other circuits, however, the majority has ruled that we will apply the
approach followed by the majority of circuit courts in sentencing guidelines
decisions. Matter of Yanez, supra, at 397. The undesirable result will be
that whether an individual is subject to removal and disqualified from
virtually all forms of relief will turn on either state labels or circuit court
jurisdiction, or both. Cf. Taylor v. United States, 

 (1990)
(citing United States v. Nardello, 

 (1969)).
   Because state court labels vary significantly, the same possession offense,
committed in different jurisdictions, will yield widely varying immigration
consequences. For example, simple possession of a controlled substance in
Maryland is labeled as a misdemeanor and will not trigger aggravated felony
consequences. See Md. Code Ann., Crimes and Punishments, § 287 (2001)
(punishing unlawful possession or administering of a dangerous substance as
a misdemeanor with the potential for imprisonment of up to 4 years). In
contrast, just across the Potomac River, Virginia penalizes possession of most
controlled substances as a Class 5 felony. 

 (Michie
2001). The same conduct in California could result in either a misdemeanor
or a felony conviction, depending on the circumstances. See Cal. Health and
Safety Code § 11350 (West 2002) (penalizing possession with imprisonment
8
  We have consistently sought to achieve uniformity in recent decisions interpreting various
provisions of the Act. See, e.g., Matter of Rodriguez-Rodriguez, Interim Decision 3411 (BIA
1999); Matter of Roldan, Interim Decision 3377 (BIA 1999); Matter of A-P-, Interim Decision
3375, at 9 n.6 (BIA 1999). But see Matter of Salazar, supra.

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in either the county jail or state prison and defining a “felony offense” and
“offense punishable as a felony” under § 11356 as an offense for which the
law prescribes imprisonment in the state prison).
   These disparities extend even to possession of less than 30 grams of
marijuana, an offense that Congress expressly found would not be a
deportable offense under the ground involving convictions relating to a
controlled substance. See section 237(a)(2)(B)(I) of the Act; Matter of L-G-,
supra, at 104 (Holmes, concurring). As the Third Circuit noted in Gerbier
v. 

 a person convicted of a single offense of simple possession
of 30 grams or less of marijuana in North Dakota, where the offense is
punishable as a felony, would be subject to removal on the basis of a
conviction for an aggravated felony, without even the possibility of applying
for cancellation of removal. 

 at 312 (citing 

(6) (2000)). But a person convicted of the same offense in
Montana, where the offense is only a misdemeanor, would not be subject to
deportation under the aggravated felony classification without an opportunity
to seek cancellation. 

 (citing 

(2) (2001)).
   Consequently, an alien in one state might be ineligible for cancellation of
removal even though he committed the same exact crime as an alien in a
different state, simply because the two states punish the same crime
differently. As these disparate results are a real possibility, the majority
interpretation completely undermines any effort to achieve a uniform
immigration law. See United States v. 

 (stating
that “‘the interests of nationwide uniformity outweigh our adherence to Circuit
precedent in this instance’” (quoting Aguirre v. INS, supra, at 317)); see also
Gerbier v. 

 (“Indeed, the policy favoring uniformity in
the immigration context is rooted in the Constitution. See U.S. Const. art. I,
§ 8.”).
               II. EFFECT OF THE BOARD’S CHANGED
                         INTERPRETATION
   Whether or not an alien convicted of possession of a controlled substance
is subject to removal is not at issue. Any alien convicted of an offense
relating to a controlled substance, regardless of whether his status is lawful
or whether he is admitted for a temporary or permanent period, is subject to
removal under section 237(a)(2)(B)(I) of the Act, 

(a)(2)(B)(I)
(2000). Furthermore, we have made certain that a state prosecution for
first-time simple possession of a controlled substance will not be construed
as constituting an exception to that rule by overruling our prior decision in
Matter of Manrique, 

 (BIA 1995). Matter of Salazar, supra;
Matter of Roldan, Interim Decision 3377 (BIA 1999), overruled in part by
Lujan-Armendariz v. INS, 

 (9th Cir. 2000).

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  Therefore, we concur in the majority’s conclusion that the respondent
remains removable from the United States under section 237(a)(2)(B)(I) of the
Act as an alien convicted of a controlled substance violation. We also agree
with the majority that, under Matter of Punu, Interim Decision 3364 (BIA
1998), the respondent was originally “convicted” on January 5, 1998.
However, that is not the end of the matter.
                  A. Effect of the New Rule on Removability
                          and Relief from Removal
   Under federal law, a first possession offense (for a controlled substance
other than 5 grams or more of crack cocaine) is treated not as a felony, but as
a misdemeanor. 

(a) (2000). However, a second possession
offense committed after a “final conviction” for possession of a controlled
substance may be treated as a felony under certain circumstances. 

Therefore, construing the respondent’s case under our “hypothetical federal
felony” rulings in Matter of L-G-, supra, and Matter of K-V-D-, supra, the
respondent’s removability would not be dependent on “technical arguments”
regarding the finality of his first drug possession conviction, as the majority
suggests, but on a straightforward examination of that conviction as it would
be treated under 

(a). 9 Cf. Matter of Yanez, supra, at 399.
   The respondent’s preadjudication probation for a 1997 Illinois drug
possession violation was “terminated” and the respondent was “discharged”
by the Illinois state court on May 27, 1999. Therefore, under Illinois law, the
respondent did not have a final conviction for possession of a controlled
substance at the time he committed the second drug possession offense,
because he pled guilty to, and actually was convicted of, both his first and
second offenses on May 27, 1999. See People v. Sherrod, 664
N.E.2d1066,1070 (1996) (McCuskey, J., specially concurring) (“Proceedings
are not final until the trial court either: (1) makes a determination that the
defendant successfully completed probation . . . or (2) makes a finding that
the defendant violated the terms or conditions of probation, in which case a
judgment of conviction may be entered and sentence imposed.”). Under
federal law, without a prior final conviction existing at the time the second
possession offense was committed, the respondent’s second offense could
only be punished as a misdemeanor and would not qualify as an aggravated
felony. See 

(a).

9
  Pursuant to our precedent ruling in Matter of L-G-, supra, we had consistently required a
prior conviction to be “final” before the second offense of possession of a controlled substance
was committed in order for the second offense to be considered a “hypothetical federal
felony.” See, e.g., Matter of Matic, A72 446 565 (Nov. 9, 1998); see also Matter of
Villagrana, A41 329 243 (July 19, 2001).

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   The effect of reading the statute as the majority does arguably changes the
result in the respondent’s case. According to the reading announced today,
by virtue of a guilty plea entered in 1998 to the charge of possession of
cocaine, a “class 4 felony” under Illinois law, the respondent has been
convicted of an aggravated felony. Matter of Yanez, supra, at 391. If the
offense is construed as an aggravated felony, an individual convicted of a
single offense of drug possession is ineligible for most forms of discretionary
relief such as asylum, cancellation of removal, and voluntary departure. He
also may not apply for readmission to the United States without the consent
of the Attorney General, and he is ineligible for a waiver. See
Guerrero-Perez v. INS, 

 (7th Cir.), reh’g denied, 

 (2001). In addition, an individual convicted of a crime relating to a
controlled substance is most likely to be classified as having been convicted
of a particularly serious crime, rendering him ineligible for withholding of
removal. See Matter of Y-L-, A-G- & R-S-R-, 

 (A.G. 2002).
Moreover, if convicted under 

 for unauthorized reentry into
the United States, such an individual is subject to a substantial sentence
enhancement under U.S.S.G. § 2L1.2. See United States v. Martinez-Carillo,

 (7th Cir. 2001). These consequences, which will now
flow from a conviction for possession of a controlled substance, or a second
offense committed before a first conviction became final, could not possibly
have been anticipated.
             B. Due Process Concerns Relating to the New Rule
   Our decision today significantly alters the Board’s interpretation of section
101(a)(43)(B) of the Act. It changes the rules so that a respondent convicted
of simple possession of a controlled substance now is removable based on an
aggravated felony offense. It changes the consequences of removal so that
he is ineligible for most forms of relief, is disqualified from naturalization,
and is subject to far greater penalties if he returns to the United States without
the permission of the Attorney General.
   The majority’s suggestion that our decision in Matter of L-G-, supra, did
not set forth an authoritative interpretation of § 924(c)(2) on which a
respondent could rely in a case arising in the immigration context is both
contrary to regulation and at odds with practical reality.10 Cf. 

(g) (2001). Even after a number of circuit courts issued alternative
10
    The majority’s contention that our acquiescence in Matter of L-G- to the Second Circuit’s
ruling in United States v. 

 “strongly suggested that our reading of § 924(c)(2)
was not authoritative,” is simply an expression of wishful thinking on the majority’s part.
Matter of Yanez, supra, at 400. Within 6 months of our August 27, 1995, ruling, on
March 22, 1996, the Second Circuit deferred to our ruling in Matter of L-G-, finding the
rationale for our interpretation of the statute to be persuasive. See Aguirre v. INS, supra.

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interpretations of § 924(c)(2) in criminal sentencing guidelines cases, we
continued to invoke the reasoning in Matter of L-G- for our interpretation of
the law. 11
   The Board’s adjudicatory rulings are binding on Immigration Judges,
officials of the Service, and the respondents who come before us in removal
proceedings. 

(g). As early as 1947, the Supreme Court held
that administrative agencies may properly use adjudication to “announc[e]
and apply[] a new standard of conduct.” SEC v. Chenery Corp., 

 (1947); see also NLRB v. Wyman-Gordon Co., 

(1969). As an administrative tribunal, our adjudicatory rulings constitute an
authoritative construction of the statute and are tantamount to regulations.12
Accordingly, litigants have every reason to look to our precedents to govern
their conduct and decisions made in relation to potential bases of
removability and relief from removal.
   We acknowledge that the “adjudicative forum can often be used to
announce new principles applicable to the specific parties . . . even if the
principles involve a change from past policies.” Ruangswang v. INS, 

 (9th Cir. 1978); see also NLRB v. Bell Aerospace Co., 

 (1974). There is no dispute that “‘regulatory agencies do not
establish rules of conduct to last forever.’” Motor Vehicle Mfrs. Ass’n of the
United States, Inc. v. State Farm Mut. Auto. Ins. Co., 

 (1983)
(quoting American Trucking Assoc., Inc. v. Atchison, Topeka & Santa Fe Ry.
11
    Contrary to the majority’s contention that the respondent could not have relied on our
adherance to Matter of L-G-, supra, because Matter of K-V-D-, supra, was decided after he
entered his May 1999 guilty pleas, our reading of § 924(c)(2) was uniformly applied. We
consistently issued unpublished decisions indicating that we would not follow circuit court
sentencing guidelines decisions construing section 101(a)(43)(B) of the Act and would adhere
to our ruling in Matter of L-G-. See, e.g., Matter of Zuniga, A41 268 067 (Mar. 17, 1999);
Matter of Garcia, A90 266 293 (Feb. 24, 1999); Matter of Martinez, A91 275 632 (Feb. 22,
1999); Matter of Valle, A39 089 782 (Feb. 19, 1999), available at
http://www.usdoj.gov/eoir/vll/libindex.html. All of these decisions, and others like them,
predated the respondent’s second guilty plea and final conviction, and several of them
discussed the limitation imposed by the absence of a final conviction when a second offense
was committed. See, e.g., Matter of Matic, supra; see also Matter of Valle, supra. Unlike
Guillen-Garcia v. INS, 

 (7th Cir. 1995), in which the Seventh Circuit
found that the facts were sufficiently distinguishable from those in an unpublished decision “to
allow us to conclude that there was no inconsistency in the decisions,” the “indexed” decisions
listed on our website involved a common question of law.
12
    Our “‘(a)djudicated cases may and do, of course, serve as vehicles for the formulation of
agency policies, which are applied and announced therein. See H. Friendly, The Federal
Administrative Agencies 36-52 (1962).’” Atchison, Topeka & Santa Fe Ry. Co. v. Wichita
Bd. of Trade, 

 (1973) (quoting NLRB v. Wyman-Gordon Co., supra, at
765-66); see also Ruangswang v. INS, 

, 44 n.6 (9th Cir. 1978) (noting that “the
‘agency’ is the Department of Justice, because both the Immigration and Naturalization Service
and the Board of Immigration Appeals are arms of the Department”).

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Co., 

 (1967)). Likewise, an agency must be given ample
latitude to “‘adapt [its] rules and policies to the demands of changing
circumstances.’” 

 (quoting Permian Basin Area Rate Cases, 

 (1968)).
   Although we may modify our interpretation, however, a change may be
arbitrary or capricious when it is more than a mere refinement of an existing
standard and an affected party has detrimentally relied on the old standard.
See NLRB v. Bell Aerospace Co., supra, at 294-95; see also Ruangswang v.
INS, supra, at 44-45. A change in interpretation made through “adjudication
might also be inappropriate where ‘some new liability’ results from ‘past
actions which were taken in good-faith reliance on Board pronouncements.’”
Ruangswang v. INS, supra, at 44 (quoting NLRB v. Bell Aerospace Co.,
supra, at 295). That is the case here.
   These limitations reflect the now-familiar presumption against retroactivity
recently affirmed and applied to immigration cases by the Supreme Court.
INS v. St. 

 That is, the retroactive application of a new rule
should be informed and guided by “familiar considerations of fair notice,
reasonable reliance, and settled expectations.” Landgraf v. USI Film
Products, 

 (1994); see also Martin v. Hadix, 

 (1999); United States ex rel. Accardi v. Shaughnessy, 

 (1954). By now, it is universally accepted that “[e]lementary
considerations of fairness dictate that individuals should have an opportunity
to know what the law is and to conform their conduct accordingly; settled
expectations should not be lightly disrupted.” INS v. St. 

 at 316
(quoting Landgraf v. USI Film 

); see also
Jideonwo v. INS, 

 (7th Cir. 2000).
   Thus, the “principle that the legal effect of conduct should ordinarily be
assessed under the law that existed when the conduct took place has timeless
and universal human appeal” and should govern here. Kaiser Aluminum &
Chemical Corp. v. Bonjorno, 

 (1990) (Scalia, J.,
concurring); see also BMW of North America, Inc. v. Gore, 

 (1996) (“Elementary notions of fairness enshrined in our constitutional
jurisprudence dictate that a person receive fair notice not only of the conduct
that will subject him to punishment, but also of the severity of the penalty that
a State may impose.”). Similarly, in SEC v. Chenery Corp., supra, the Court
declared that any retroactivity resulting from the introduction of a new
standard through adjudication “must be balanced against the mischief of
producing a result which is contrary to a statutory design or to legal and




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equitable principles.” Id. at 203 (emphasis added);13 see also Gill v. INS,

 (9th Cir. 1982).
   The Supreme Court has noted that although “the strict constitutional
safeguards afforded to criminal defendants are not applicable to civil cases,
the basic protection against ‘judgments without notice’ afforded by the Due
Process Clause is implicated by civil penalties.” Shaffer v. Heitner,

 (1977) (Stevens, J., concurring in judgment). Thus, while
Congress may enact laws having retroactive effect, due process requires that
there be a separate justification for retroactivity. Pension Benefit Guaranty
Corp. v. R. A. Gray & Co., 

 (1984).
   Furthermore, even where an appellate court applies “the law in effect at the
time that it renders its decision,” applying a law retroactively such that it
results in “manifest injustice” violates the Due Process Clause. Bradley v.
School Bd. of City of Richmond, 

 (1974). Manifest
injustice may occur where a new law changes existing rights or imposes
unanticipated obligations on a party without providing appropriate notice. 

; see also Kopec v. City of Elmhurst, 

, 904 n.7 (7th Cir.
1999) (noting that the “judicial default” rules employed in determining
whether a statute should be applied retroactively include the “manifest
injustice” test).
   In the Seventh Circuit, in which this case arises, the court has held that
retrospective changes in deportation laws violated the due process rights of
affected aliens. Jideonwo v. INS, supra; see also Reyes-Hernandez v. INS,
supra, at 493 (disapproving of “mouse-trapping” respondents who conceded
deportability in reliance on the opportunity to apply for a waiver). Indeed, the
Seventh Circuit has recognized that the “‘function of filling in the interstices
of regulatory statutes should be performed, as much as possible, through [the]
quasi-legislative promulgation of rules to be applied in the future.’” NLRB
v. Federal Sec., Inc., 

 (7th Cir. 1998) (alteration in original)
(quoting SEC v. Chenery Corp., supra, at 202).


13
   The majority appears to miss the point that the Supreme Court’s concerns relating to notice
and an individual’s ability to conform his conduct to what the law is make up the “legal and
equitable principles” that warrant an exception to an agency’s power to announce a new rule
through adjudication. SEC v. Chenery Corp, supra, at 203; cf. Matter of Yanez, supra, at 400
n.10. In fact, in Molina v. INS, 

 (1st Cir. 1992), the First Circuit intimated
that it might accept amici’s argument that the agency’s failure to change the pre-Ozkok
definition through rulemaking or “by overruling its prior case with prospective effect only” was
unlawful, but that it could not find reasonable reliance on Molina’s part because the standards
in the Board’s prior decision “were, at best, ambiguous with respect to a person in Molina’s
situation.” That is not the case here. Moreover, since the Supreme Court’s decision in INS
v. St. 

, the necessity of showing actual reliance by a respondent who
entered a plea is questionable.

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   Accordingly, before we apply a new rule to past conduct resulting in
removal consequences, we should look to the five factors articulated in
Retail, Wholesale & Dep’t Store Union v. NLRB, 

 (D.C.
Cir. 1972), which have been adopted by the Seventh Circuit and six other
circuit courts of appeals. See NLRB v. Wayne Transp., 

, 751
(7th Cir. 1985). This five-factor test examines (1) whether the particular case
is one of first impression, (2) whether the new rule represents an abrupt
departure from well-established practice or merely attempts to fill a void in
an unsettled area of law, (3) the extent to which the party against whom the
new rule is applied relied on the former rule, (4) the burden that a retroactive
order imposes on a party, and (5) the statutory interest in applying a new rule
despite the reliance of a party on the old standard.
   Applying this five-factor test, we must conclude that the change resulting
from the majority opinion is retroactive and should not be applied to the
respondent’s case or to any case in which a respondent pled guilty to simple
possession of a controlled substance in reliance on our decisions in Matter
of L-G-, supra, and Matter of K-V-D-, supra. In INS v. St. 

 the
Supreme Court recognized that “[t]here can be little doubt that, as a general
matter, alien defendants considering whether to enter into a plea agreement
are acutely aware of the immigration consequences of their convictions.” 

 (citations omitted). The court also noted that “preserving the
possibility of such relief would have been one of the principal benefits sought
by defendants deciding whether to accept a plea offer or instead to proceed
to trial.” 

. Contrary to the majority’s contention, the question is not
one of actual reliance, but one of presumptive reliance.
   The majority’s interpretation of a “drug trafficking crime” is not a matter
of first impression, but represents a departure from the reading we applied for
over a decade. Moreover, we expressly considered the differing
interpretation applied in many circuit court sentencing guidelines cases and
specifically reaffirmed Matter of L-G-, supra, indicating we would continue
to follow our reading unless expressly instructed to do otherwise as the result
of a circuit court ruling. The respondent, and other aliens like him, in
deciding whether to forego their right to a trial, almost certainly relied upon
our decisions in Matter of L-G- and Matter of K-V-D- and depended on the
likelihood that conviction for possession of a controlled substance would not
be treated as an aggravated felony, or bar their opportunity to seek
cancellation relief or naturalization.
   Undoubtedly, once again, “‘[a]ll of these people, and no doubt many
others, had settled expectations to which they conformed their conduct.’” INS
v. St. 

 at 324 n.52 (quoting Matter of Soriano, 

 (Rosenberg, concurring and dissenting)). Therefore, we must conclude
that the majority exceeds the bounds of fairness in issuing this decision. See
INS v. St. 

 Ruangswang v. INS, supra, at 44 (“We are, however,

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convinced that what the Board seeks to do . . . is beyond the bounds of that
which is permissible under Bell. The adverse consequences voluntary
departure at best, and deportation at worst are certainly substantial.”).
   In the end, if there is “any unease with the policy implications of the statute
in question,” the Seventh Circuit has ruled that such matters are “within the
province of Congress and not the judicial branch.” Guerrero-Perez v. INS,
supra, at 737. Perhaps this unprecedented ruling of the Board, overturning
a 12-year-old interpretation, provides a basis on which Congress should be
asked to speak specifically as to the way in which it wishes us to determine
the fate of lawful residents and other respondents who have been convicted
of simple possession of a controlled substance.
                              III. CONCLUSION
   Our adjudication changing the interpretation of a statutory provision that
carries such extreme consequences cannot be based on expediency. We
therefore cannot agree that the easiest reading is the correct one. Moreover,
we view the majority’s interpretation of the statute as unnecessarily imposing
a retroactive interpretation on thousands of respondents who have been
convicted of simple possession of controlled substances. This is an
excessive and unwarranted reading of the statute. Accordingly, we concur in
part and dissent in part.




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