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Interim Decision #3473

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

18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under

section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(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-, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (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 8 C.F.R. § 3.1(e) (2001),

and his request for a waiver of the appeal fee is granted pursuant to 8 C.F.R. § 3.8(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-, 21 I&N Dec. 89 (BIA 1995), and Matter of

Davis, 20 I&N Dec. 536 (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, 8 U.S.C.

§ 1101(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, 8 U.S.C. § 1227(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 21 U.S.C. § 844(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 21 U.S.C.

§ 844(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 21 U.S.C.

§ 851(a)(1) (2000), as required for the imposition of enhanced punishment,

based on prior convictions, under 21 U.S.C. § 844(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 18 U.S.C. § 924(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, 251 F.3d 505 (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, 122 S. Ct. 305 (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, 280 F.3d 297, 311 n.12 (3d Cir. 2002); Steele v. Blackman, 236 F.3d 130,

137 (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, 23 I&N Dec. 223, 235 (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 18 U.S.C. § 924(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.).

18 U.S.C. § 924(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.” 21 U.S.C. § 802(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 21 U.S.C. § 951(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 18 U.S.C. § 924(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, 20 I&N Dec. 171 (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 18 U.S.C. § 3559(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 21 U.S.C.

§ 802(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. Hernandez-Avalos, supra; United States v. Ibarra-Galindo,

206 F.3d 1337 (9th Cir. 2000), cert. denied, 531 U.S. 1102 (2001); United

States v. Simon, 168 F.3d 1271 (11th Cir.), cert denied, 528 U.S. 844 (1999);

United States v. Briones-Mata, 116 F.3d 308 (8th Cir. 1997); United States

v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996); United States v. RestrepoAguilar, 74 F.3d 361 (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, 280 F.3d 297 (3d Cir. 2002);

Aguirre v. INS, 79 F.3d 315 (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. Holmes, supra, at

308-12. 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 18 U.S.C.

§ 924(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,

171 F.3d 142 (2d Cir.), cert. denied, 528 U.S. 880 (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. Hernandez-Avalos, supra, at

509 (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, 205 F.3d 837, 839-40 (5th Cir. 2000)

(same); United States v. Ibarra-Galindo, supra, at 1340 n.2 (stating in the

Ninth Circuit that “we have never even suggested that we would interpret

18 U.S.C. § 924(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-DThe 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, 20 I&N Dec. 25

(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 18 U.S.C. § 924(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, 494 U.S.

638 (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, 269 F.3d 162, 168 (3d Cir. 2001) (rejecting the Board’s

interpretation of the phrase “crime of violence” under 18 U.S.C. § 16 (2000)

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

with administering 18 U.S.C. § 16, 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, 257 F.3d 200, 203-04 (2d Cir. 2001)

(applying de novo standard of review to the Board’s interpretation of the

phrase “crime of violence” under 18 U.S.C. § 16 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. Ibarra-Galindo, supra, at 1339; 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. Pornes-Garcia, supra.

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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 18 U.S.C. § 924(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 Barrett, supra. Cocaine is a controlled substance under

21 U.S.C. § 812(c), sch. II(a)(4) (2000), and possession of a controlled

substance violates 21 U.S.C. § 844(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 21 U.S.C. § 802(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 18 U.S.C. § 3559(a)(5) and 21 U.S.C. § 802(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, 2001 WL 1442396, 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, 23 I&N Dec. 390, 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 21 U.S.C. § 844(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, 60 F.3d 340,

345-46 (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 21 U.S.C. § 844(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, 762 N.E.2d 1180, 1183 (Ill. App. Ct.

2002) (citing People v. Stueve, 361 N.E.2d 579, 580-81 (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, 32 F.3d 11 (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, 168 F.3d 1271 (11th Cir. 1999); United States v.

Briones-Mata, 116 F.3d 308 (8th Cir. 1997); United States v. Cabrera-Sosa,

81 F.3d 998 (10th Cir. 1996); United States v. Restrepo-Aguilar, 74 F.3d 361

(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, 533 U.S. 289 (2001), and

Landgraf v. USI Film Products, 511 U.S. 244 (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, 416 U.S. 267, 293-95 (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., 332 U.S. 194, 203 (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-, 20 I&N Dec. 529, 532 (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, 981 F.2d 14, 23 (1st Cir. 1992) (upholding the Board’s

“retroactive” application of the definition of a “conviction” adopted in Matter of Ozkok,

19 I&N Dec. 546 (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., 776 F.2d 745, 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, 8 U.S.C. § 1101(a)(43)(B) (2000) (referring to 18 U.S.C.

§ 924(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, 8 U.S.C. §§ 1101(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, 8 U.S.C. §§ 1182(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, 8 U.S.C. § 1326(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 18 U.S.C. § 924(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-, 21 I&N

Dec. 89 (BIA 1995); cf. Jenkins v. INS, 32 F.3d 11 (2d Cir. 1994),

overruled by Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996). It is undisputed

that this language is subject to judicial interpretation. Gerbier v. Holmes,

280 F.3d 297, 309 (3d Cir. 2002) (“Finding the phrase to be ambiguous, we

must look to legislative history.”).

Indeed, over the years, the reference to 18 U.S.C. § 924(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, 74 F.3d

361, 365 (1st Cir. 1996) (“There is no reason to suppose that either Congress

or the Sentencing Commission, in defining ‘aggravated felony’ by reference

to 18 U.S.C. § 924(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. Holmes, supra, at 310 (“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 18 U.S.C. § 924(c)(2).” United States v. Pornes-Garcia, 171

F.3d 142, 145-46 (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, 528 U.S. 880 (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, 20 I&N Dec. 171 (BIA

1990), we examined the term “aggravated felony” relating to a drug offense2

and concluded that the definition of a “drug trafficking crime” under

18 U.S.C. § 924(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, 20 I&N Dec. 536 (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 18 U.S.C. § 924(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 21 U.S.C. § 802(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 21 U.S.C. § 802 is specifically limited to

its use “in this subchapter,” and 18 U.S.C. § 924 does not incorporate the

definitions of 21 U.S.C. § 802, 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 18 U.S.C. § 3559(a) (1994), and, accordingly, a “drug

trafficking crime” under 18 U.S.C. § 924(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, Pub. L. No.

100-690, 102 Stat. 4181, 4469-70 (effective Nov. 18, 1988) (“ADAA”).

3

The definition of an “aggravated felony” was amended by the Immigration Act of 1990,

Pub. L. No. 101-649, 104 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. Holmes, supra, at 305 (“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 Pub. L. No. 104-208, 110 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, 434 U.S. 575, 580 (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. Pons, supra, at 581. Equally important,

Congress is not presumed to change well-established legal precedent by

silence. American Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 613-14 (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, 523 U.S. 224

(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. Id. at 237. 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, 533 U.S. 289 (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. Pons, supra, at 582.

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. Holmes, supra, at 307 (“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, 251 F.3d 505, 509 (5th Cir.) (ruling that

“[w]e fail to see the validity of interpreting this statute differently based on

this distinction”), cert. denied, 122 S. Ct. 305 (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. Hernandez-Avalos, supra, 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., 446 U.S. 578, 602 (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,

501 U.S. 380, 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. Pornes-Garcia, supra,

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.” Id. at 143 (emphasis added).

Although the Second Circuit did reconsider its ruling in Jenkins v. INS,

32 F.3d 11 (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. Pornes-Garcia, supra; cf. Matter of Yanez,

23 I&N Dec. 390, 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, 286 U.S. 427, 433 (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.

Pornes-Garcia, supra, at 147 (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 18 U.S.C. § 924(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. Holmes, supra, 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. Hernandez-Avalos, supra, we

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

23 I&N Dec. 223 (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 8 U.S.C. §§ 1158 & 1253(h).” Id.

Although the court acknowledged that our L-G- decision turned on the

definition of an “aggravated felony” in 8 U.S.C. § 1101(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.” Id. (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.” Id. (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 21 U.S.C.

§ 802(13), requires treating any state felony offense that is punishable under

the statutes enumerated in 18 U.S.C. § 924(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-Dinterprets 18 U.S.C. § 924(c)(2) “in a manner that has not generally been

followed by the federal criminal law courts.” Id. 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.” Id. at 396.

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, 18 U.S.C. § 924(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. Holmes,

supra, at 302 n.2 (citing Drakes v. Zimski, 240 F.3d 246, 250 (3d Cir.

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

Inc., 467 U.S. 837, 843 (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. Holmes, supra, 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 18 U.S.C. § 924(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, 333 U.S. 6,

10 (1948) (recognizing that “deportation is a drastic measure and at times the

equivalent of banishment or exile” (citing Delgadillo v. Carmichael, 332 U.S.

388 (1947))); see also United States v. Pornes-Garcia, supra, at 146-47

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

89 F.3d 490, 492-93 (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. Phelan, supra, at 10 (emphasis added). 7 The Court’s

decision in INS v. St. Cyr, 533 U.S. 289 (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, 21 I&N Dec. 269, 274 (BIA 1996; A.G., BIA 1997); Matter of Tiwari,

19 I&N Dec. 875 (BIA 1989); Matter of Andrade, 14 I&N Dec. 651 (BIA 1974); Matter of

G-, 9 I&N Dec. 159 (BIA 1960; A.G. 1961); Matter of K-, 3 I&N Dec. 575 (BIA 1949). In

so doing, we have consistently found that questions of deportability must be resolved in the

alien’s favor. Matter of Serna, 20 I&N Dec. 579, 586 (BIA 1992); Matter of Chartier,

16 I&N Dec. 284, 287 (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. Cyr, supra, at 320

(recognizing “‘the longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the alien’” (quoting INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (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, 23 I&N Dec. 223 (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, 20 I&N Dec. 25 (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, 495 U.S. 575, 592 (1990)

(citing United States v. Nardello, 393 U.S. 286, 293-94 (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. Va. Code Ann. § 18.2-250 (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. Holmes, supra, 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. Id. at 312 (citing N.D. Cent. Code

§ 19.03.1-23(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. Id. (citing Mont. Code Ann. § 45-102(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. Pornes-Garcia, supra, at 147 (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. Holmes, supra, at 311 (“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, 8 U.S.C. § 1227(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, 21 I&N Dec. 58 (BIA 1995). Matter of Salazar, supra;

Matter of Roldan, Interim Decision 3377 (BIA 1999), overruled in part by

Lujan-Armendariz v. INS, 222 F.3d 728, 745-49 (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. 21 U.S.C. § 844(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. Id.

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 21 U.S.C. § 844(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 21 U.S.C. § 844(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, 242 F.3d 727, 737 (7th Cir.), reh’g denied, 256 F.3d

546 (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-, 23 I&N Dec. 270 (A.G. 2002).

Moreover, if convicted under 8 U.S.C. § 1324 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,

250 F.3d 1101, 1102 (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. 8 C.F.R.

§ 3.1(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. Jenkins, supra, “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. 8 C.F.R. § 3.1(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., 332 U.S.

194, 203 (1947); see also NLRB v. Wyman-Gordon Co., 394 U.S. 759

(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, 591

F.2d 39, 44 (9th Cir. 1978); see also NLRB v. Bell Aerospace Co., 416 U.S.

267, 290-95 (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., 463 U.S. 29, 42 (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, 60 F.3d 340, 345-46 (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, 412 U.S. 800, 807 (1973) (quoting NLRB v. Wyman-Gordon Co., supra, at

765-66); see also Ruangswang v. INS, 591 F.2d 39, 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., 387 U.S. 397, 416 (1967)). Likewise, an agency must be given ample

latitude to “‘adapt [its] rules and policies to the demands of changing

circumstances.’” Id. (quoting Permian Basin Area Rate Cases, 390 U.S.

747, 784 (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. Cyr, supra. 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, 511 U.S. 244, 270 (1994); see also Martin v. Hadix, 527 U.S. 343,

352 (1999); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260,

266-68 (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. Cyr, supra, at 316

(quoting Landgraf v. USI Film Products, supra, at 265-66); see also

Jideonwo v. INS, 224 F.3d 692, 696-97 (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, 494 U.S. 827, 855 (1990) (Scalia, J.,

concurring); see also BMW of North America, Inc. v. Gore, 517 U.S. 559,

574 (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,

666 F.2d 390, 392 (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,

433 U.S. 186, 217 (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., 467 U.S. 717, 729-30 (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, 416 U.S. 696, 716 (1974). Manifest

injustice may occur where a new law changes existing rights or imposes

unanticipated obligations on a party without providing appropriate notice. Id.

at 720; see also Kopec v. City of Elmhurst, 193 F.3d 894, 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., 154 F.3d 751, 755 (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, 981 F.2d 14, 21 (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. Cyr, supra, at 322-23, 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, 466 F.2d 380, 390 (D.C.

Cir. 1972), which have been adopted by the Seventh Circuit and six other

circuit courts of appeals. See NLRB v. Wayne Transp., 776 F.2d 745, 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. Cyr, supra, 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.” Id.

at 322 (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.” Id. at 323. 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. Cyr, supra, at 324 n.52 (quoting Matter of Soriano, 21 I&N Dec. 516,

528 (Rosenberg, concurring and dissenting)). Therefore, we must conclude

that the majority exceeds the bounds of fairness in issuing this decision. See

INS v. St. Cyr, supra; 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.

418