Interim Decision #3242

Interim Decision #3242

MATTER OF GOMEZ-GIRALDO

In Deportation Proceedings

A-22115816

Decided by Board February 7, 1995

As Congress manifested its intent that the aggravated felony bar of section 212(c) of

the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. V 1993), be applied

retroactively to all convictions for offenses described in the original aggravated felony

definition of section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988), regardless of

when the conviction was entered, and as the retroactive application of the bar does not

offend any of the concerns underlying the presumption against the retroactive operation

of new statutes, the decision of the Boards of Immigration Appeals in Matter ojA-A-, 20

I&N Dec. 492 (BIA 1992), is consistent with the Supreme Court's holdings in Landgrof

v. USI Fihn Products, 114 S. CL 1483 (1994), andi Rivers v. Roadway Express, Inc., 114

S. Ct. 1510 (1994), and is accordingly reaffirmed.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [8 U.S.C. § 1251(a)(2)(A)(iii)j—Convicted of

aggravated felony

ON BEHALF OF SERVICE:

Joyce L Richard

General Attorney

ON BEHALF OF RESPONDENT:

Linda Kenepaske, Esquire

275 Madison Avenue, Suite 1618

New York, New York 10016

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,

Alternate Board Member

In a decision entered on June 16, 1994, an immigration judge found

the respondent deportable under section 241(a)(2)(A)(iii) of the

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (Supp.

V 1993), denied the respondent's application for a waiver of inadmissibility under section 212(c) of the Act, 3 U.S.C. § 1182(c) (Supp. V

1993), and ordered him deported to Colombia. The respondent has

timely appealed from that decision, challenging only the denial of

section 212(c) relief. The appeal will be dismissed.

The respondent is a 39-year-old native and citizen of Colombia who

entered the United States on or about December 26, 1973, as a

nonimmigrant visitor. His status was adjusted to that of a lawful

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permanent resident on May 14, 1980. On November 16, 1989, the

respondent was convicted in the United States District Court for the

Eastern District of Kentucky of the following offenses: conspiracy to

possess with intent to distribute cocaine in violation of 21 U.S.C.

§ 846 (1988); possession with intent to distribute cocaine in violation

of 21 U.S.C. § 841(a)(1) (1988); travel in interstate commerce for the

purpose of distributing cocaine in violation of 18 U.S.0 § 1952(a)(3)

(1988); and use of a communication facility for a narcotic felony in

violation of 21 U.S.C. § 843(b) (1988). For these offenses, the

respondent was sentenced to a term of imprisonment of 70 months, to

be followed by 4 years of supervised release.

At his deportation hearing, the respondent sought to apply for a

waiver of inadmissibility pursuant to section 212(c) of the Act. The

Immigration and Naturalization Service argued, however, that the

respondent was statutorily ineligible for such relief because he had

been convicted of several aggravated felonies and had served a term of

imprisonment of at least 5 years pursuant to those felonies. See section

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212(c) of the Act; 8 C.F.R. § 212.3(f)(4) (1994). In support of its

contention, the Service proffered the respondent's conviction records

and a sentence monitoring computation data sheet verifying that the

respondent had been incarcerated since March 19, 1989. The immigration judge agreed with the Service's position that the respondent is

ineligible as a matter of law for the waiver sought under section 212(c).

A waiver of inadmissibility under section 212(c) of the Act is not

available to any alien "who has been convicted of one or more

aggravated felonies and has served for such felony or felonies a term of

imprisonment of at least 5 years." Section 511(a) of the Immigration

Act of 1990, Pub. L. No. 101 649, 104 Stat. 4978, 5052 (enacted Nov.

29, 1990) ("1990 Act"), as amended by section 306(a)(10) of the

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1751 (enacted

Dec. 12, 1991) ("1991 Amendments"). Section 511(b) of the 1990 Act

provides that this statutory bar "shall apply to admissions occurring

after the date of enactment of [the 1990] Act," or after November 29,

1990. Immigration Act of 1990, 104 Stat. at 5052. The Attorney

General has determined that the phrase "shall apply to admissions," as

used in section 511(b) of the 1990 Act, refers to all applications for

section 212(c) relief submitted after November 29, 1990. See 56 Fed.

Reg. 50,033 (1991) (supplementary information); see also Matter of AA-, 20 I&N Dec. 492, 502 & n.22 (BIA 1992).

The respondent does not contest, on appeal, the immigration

judge's findings that he had been convicted of an aggravated felony

and had served a term of imprisonment of more than 5 years. Rather,

he asserts that his convictions are beyond the temporal reach of the

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statutory bar. The respondent submits that he should be afforded an

opportunity to apply for a section 212(c) waiver.

Specifically, the respondent argues that the "aggravated felony bar"

of section 212(c) should not apply retroactively to his convictions,

which were entered prior to the enactment of the 1990 Act. According

to the respondent, the Supreme Court's recent decisions in Landgraf v.

USI Film Products, 114 S. Ct. 1483 (1994), and Rivers v. Roadway

Express, Inc., 114 S. Ct. 1510 (1994), firmly pronounce that absent

clear congressional intent favoring retroactive application of a new

statutory provision, the traditional presumption against the retroactive

application of a statute should prevail. The respondent contends that

in light of these recent Supreme Court opinions, this Board should

overturn its decision in Matter of A-A-, supra, which held that the

aggravated felony bar of section 212(c) applies retroactively to any

conviction for an offense described in the original aggravated felony

definition, regardless of when the conviction occurred, so long as the

application for relief under section 212(c) is submitted after November

29, 1990_ For the original definition of the term "aggravated felony,"

see section 7342 of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100690, 102 Stat. 4181, 4469-70 (enacted Nov. 18, 1988) ("1988 Act"),

later codified as section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43)

(1988); see also Matter of A-A-, supra, at 495.'

The Service, in turn, argues that Matter of AA-, supra, was correctly

decided. The Service contends that because the respondent submitted

his application for section 212(c) relief after November 29, 1990, has

been convicted of several offenses designated as aggravated felonies

under the original aggravated felony defmition, and has served a term

of imprisonment of at least 5 years, he is statutorily ineligible for a

waiver of inadmissibility under section 212(c) of the Act.

In the sister cases of Landgraf v. USI Film Products, supra, and

Rivers v. Roadway Express, Inc., supra, the Supreme Court considered

whether particular provisions of the Civil Rights Act of 1991 were to

1 In Matter of A-A-, supra,

at 499, the Board recognized an exception to the retroactive

application of the aggravated felony bar of section 212(c) with respect to crimes that

were added to the aggravated felony definition by the 1990 Act, which, by the express

terms of the statute, are generally deemed aggravated felonies only if committed on or

after November 29, 1990. See section 501(b) of the 1990 Act, 104 Stet. at 5048.

Subsequent to our decision in Matter of A-A-, supra, Congress further expanded the

definition of the term "aggravated felony" in the Immigration and Nationality

Technical Corrections Act of 1994. See section 222(a) of the Immigration and

Nationality Technical Corrections Act of 1994, Pub. L No. 103-416, 108 Stat. 4305,

4320 22 (enacted October 25, 1994) ("1994 Act")_ Liker the 1990 Act, the 1994 Act

specifies that its amendments to section 101(a)(43)of the Act shall apply prospectively

only, in the case of the 1994 Act, "to convictions entered on or after the date of

enactment of this Act." Section 222(b) of the 1994 Act, 108 Stet. at 4322.

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be given retroactive effect. In both cases, the Court was compelled to

reconcile two seemingly contradictory canons for interpreting statutes

that do not specify their temporal reach: the rule that a court must

apply the law in effect at the time it renders its decision, see, e.g.,

Bradley v. Richmond School Rd., 416 U.S. 696 (1974), and the axiom

that statutory retroactivity is not favored in the law, see, e.g., Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204 (1988). The Court ultimately

held that in the absence of clear congressional intent favoring the

retroactive application of a statute and where such application would

offend elementary principles of fairness, courts should invoke "the

traditional presumption against truly 'retrospective' application of a

statute." See Landgraf v. USI Film Products, supra, at 1504.

We find that our decision in Matter of A-A-, supra, is, fully consistent

with the Supreme Court's recent holdings in Landgraf v. USI Film

Products, supra, and Rivers v. Roadway Express, Inc., supra. We

accordingly decline to disturb our holding in the case.

In Landgraf v. USI Film Products, and Rivers v. Roadway Express,

Inc., the Supreme Court instructed that courts, before even reaching

the application of timeworn canons of statutory construction, must

first discern whether the relevant statutory text manifests an intent

that the statutory provision in question should be applied retroactively. In the cases before it, the Court found that the provisions of the

Civil Rights Act of 1991 at issue were silent as to congressional intent.

Consequently, the Court proceeded to an examination of legislative

history and to the application of canons of statutory interpretation.

In contrast, in Matter ofA A , supra, this Board found that Congress

had clearly manifested its intent that the aggravated felony bar of

section 212(c) be applied retroactively to all aggravated felony

convictions within the ambit of the original definition, regardless of

when they were adjudged. We initially noted that several provisions of

the 1988 Act "attached specific immigration consequences (or socalled disabilities) to those convicted of aggravated felonies" and that

such disabling provisions made clear "through necessary implication"

that Congress intended the aggravated felony definition originally set

forth in section 101(a)(43) of the Act to be applied to convictions

occurring prior to the date of enactment of the 1988 Act, as well as to

convictions entered thereafter. 2 Matter ofA-A-, supra, at 495; see also

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2 1n Landgraf v. USI Film Products, supra, at 1492 96, the Court reaffirmed that

congressional intent may be found not only in explicit language, but also in legislative

history and by necessary implication. See also Bruner v. United States, 343 U.S. 112, 117

n.8 (1952) (stating "the general principle that a statute is not to be given retroactive

effect unless such construction is required by explicit language or by necessary

implication" (emphasis added)); Winfree v. Northern Pacific R. Co., 227 U.S. 296, 301

(1913) (employing traditional presumption against retroactive application of statute in

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id. at 495-97 (interpreting sections 7345, 7346(a), and 7349 of the

1988 Act, 102 Stat. at 4471-73).

The Board further noted that "where Congress desired to limit the

reach of a disabling provision in the 1988 Act to certain aggravated

felons—such as those convicted only on or after a certain date—it

expressly did so." Matter of A-A-, supra, at 497; see also id. at 496-97,

99 & n.15 (citing sections 7343, 7344, and 7347 of the 1988 Act, 102

Stat. at 4470-72, as instances where Congress explicitly limited the

temporal reach of disabling provisions). Congress did not similarly

circumscribe the temporal reach of the aggravated felony bar of section

212(c) of the Act, though it knew how to do so and could readily have

done so: See Matter of A-A-, supra, at 502 (noting that "[n]either the

1990 Act nor the 1991 Amendments ... specified when a conviction

must occur to be classified as an aggravated felony for purposes of [the

aggravated felony] bar"). 3 We ultimately concluded that as the original

aggravated felony definition applies to convictions predating the 1988

Act and as Congress did not explicitly limit the temporal reach of the

aggravated felony bar, the bar "is properly read as applying to all

convictions deemed within the original aggravated felony definition,

so long as the application for relief under section 212(c) is submitted

after November 29, 1990." Id.

The federal circuit courts of appeal which have addressed the issue

have uniformly cited with approval our holding and analysis in Matter

ofA-A-, supra. See Asencio v. INS, 37 F.3d 614, 617 (11th Cir. 1994)

(upholding Board's decision in Matter of A-A- as a "reasonable

construction" of section 212(c)); Campos v. INS, 16 F.3d 118, 121 (6th

Cir. 1994) (citing the provisions of the 1988 and 1990 Acts that were

analyzed by the Board in Matter of A A and reaching the same

conclusion with regard to congressional intent); .De Osorio v. United

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absence of "explicit words" or "clear implication" (emphasis added)); Murray v. Gibson,

56 U.S. (15 11ow.) 421, 423 (1853) (holding that statutes should not be applied

retroactively unless such application is "required by express command or by necessary

and unavoidable implication" (emphasis added)).

3 M noted earlier, supra note 1, subsequent to our decision in Matter of A-A-, supra,

Congress enacted the 1994 Act, specifying that its amendments to the aggravated felony

definition were to apply only to convictions, entered after the date of enactment. Thus,

while Congress, presumed to be cognizant of existing law pertinent to the legislation it

enacts, see, e.g., Cannon v. University of Chicago, 441 U.S. 677 (1979); Lorillard v. Pons,

434 U.S. 575, 581 (1978); Blitz v. Donovan, 740 F.2d 1241 (D.C. Cir. 1984), expressly

limited the applicability of the expanded aggravated felony definition in enacting the

1994 Act, it did not disturb our construction of the statutory provisions at issue in

Matter of A-A- and revisited here. See Matter of A-A-, supra, at 499 (observing that

Congress, in amending the aggravated felony definition in 1990, specifically limited the

scope of the definition with respect to the new group of crimes added by the 1990 Act,

but "left alone" the "temporally unlimited language of the original definition").

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States INS, 10 F.3d 1034, 1039-41 & n.5 (4th Cir. 1993) (noting and

adopting the Board's holding and analysis in Matter ofA-A-); BuitragoCuesta v. INS, 7 F.3d 291, 294 (2d Cis. 1993) (finding the Board's

holding and analysis in Matter of A-A- to be "the only sensible

,

interpretation" of congressional intent with regard to the application

of the aggravated felony bar of section 212(c)); Barreiro v. INS, 989

F.2d 62, 64 (1st Cir. 1993) (finding the Board's opinion in Matter ofAA "so persuasive" that it could simply have adopted it); see also

Cortes-Castillo v. INS, 997 F.2d 1199, 1202 n.1 (7th Cir. 1993) (noting

that the aggravated felony bar of section 212(c) would have applied

had the alien sought a section 212(c) waiver after November 29, 1990,

notwithstanding the fact that the conviction was entered in 1977).

As several circuit courts of appeal have observed, to confine the

reach of the aggravated felony bar of section 212(c) to convictions

entered on or after the enactment of the 1990 Act would be to presume

that Congress intended the bar to operate as a rather anomalous

"super-prospectivity" provision. See, e.g., Buitrago-Cuesta v. INS,

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supra, at 295. That is, given the fact that an alien convicted of an

aggravated felony is not subject to the bar unless and until he has

served at least 5 years' imprisonment for such felony, section 511(a) of

the 1990 Act would not be given effect, were it applied prospectively

only, until 5 years after its enactment. 4 In. Barreiro v. INS, supra, at 64,

the United States Court of Appeals for the First Circuit reasoned that

"(i]f Congress believed seven years' residence insufficient to entitle

aliens to waivers if they had served five or more years imprisonment

for committing an aggravated felony, it makes small sense that so

substantial a stricture should not go into effect for five years from

enactment." Accord Asencio it INS, supra, at 616-17 (citing with

approval the analysis in Barreiro v. INS, supra); Campos v. INS, supra,

at 121 -22 (same); De Osorio v. United States INS, supra, at 1041

(same); Buitrago Cuesta v. INS, supra, at 294 (same); see also Matter of

Burbana, 20 I&N Dec. 872, 878-79 (BIA 1994) (tracking Congress'

increasingly strict immigration policy toward aliens whose drug

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4 We recognize that Congress in fact rendered the aggravated felony bar of section

212(c) "super prospective" as applied to offenses added to the aggravated felony

definition by the 1990 Act (newly added crimes are aggravated felonies only if

committed on or after November 29, 1990) and by the 1994 Act (amendments to section

101(aX43) apply only to convictions entered on or after date of enactment). However,

Congress did not include such explicit directive in either the original aggravated felony

definition, see section 7342 of the 1988 Act, 102 Stat. at 4469-70, or the legislation

establishing the aggravated felony bar, see section 511 of the 1990 Act, 104 Stat, at 5052;

section 306(a)(10) of the 1991 Amendments, 105 Stat, at 1751. Absent such specific

command, we will generally not presume that. Congress intended a statute to operate

"super-prospectively."

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offenses constitute aggravated felonies). Rather, as the Sixth Circuit

Court of Appeals observed, "lilt seems clear ... that in barring

discretionary waiver for an aggravated felon 'who has served' five

years, and in making that bar effective right after enactment, Congress

contemplated that some aliens would be subject to the bar immediately." Campos v. INS, supra, at 122.

Our finding in Matter of A-A-, supra, that Congress intended the

aggravated felony bar of section 212(c) to be applied retroactively to

all convictions for offenses described in the original aggravated felony

definition has thus been endorsed by the federal courts. Having

ascertained that congressional intent, we were not obliged to proceed

further in our analysis to consider the canons of statutory interpretation. See Landgraf v. USI Film Products, supra, at 1492, 1505; see also

Rivers v. Roadway Express, Inc., supra, at 1517-18.

Indeed, even absent a finding of congressional intent, we would find

it unnecessary to apply the judicial presumption against the retroactive

application of a new legislative enactment. In Landgraf v. USI Film

Products, supra, the Supreme Court held that if a particular statutory

text does not manifest an intent with respect to the statute's proper

reach, a court must first ascertain whether the statute is truly

retroactive in effect before invoking the traditional presumption

against retroactivity. In the. Court's words, the court must determine

whether the new statute "would impair rights a party possessed when

he acted, increase a party's liability for past conduct, or impose new

duties with respect to transactions already completed." Id. at 1505.

"In general, the concern regarding retroactive application of statutes

is the deprivation of rights without notice and fair warning . " De

Osorio v. United States INS, supra, at 1042. See generally Landgraf v.

USI Film Producis, supra, at 1501 05. "A statute does not operate

'retrospectively' merely because it is applied in a case arising from

conduct antedating the statute's enactment or upsets expectations

based in prior law." Landgraf v, USI Film Products, supra, at 1499

(citation omitted). "Rather, the court must ask whether the new

provision attaches new legal consequences to events completed before

its enactment ... [and look for guidance toj familiar considerations of

fair notice, reasonable reliance, and settled expectations." Id.

We find that the aggravated felony bar of section 212(c), as

construed in Matter of A-A-, supra, does not offend any of the concerns

underlying the presumption against the retroactive operation of new

statutes. Congress has merely withdrawn the availability of a particular

form of discretionary relief in the case of aliens who are Within the

ambit of the bar and who have applied for such relief after the date of

enactment of the 1990 Act. The bar does not affect those aliens who

applied for a section 212(c) waiver on or prior to the enactment date.

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As the Fourth Circuit Court of Appeals noted in De Osorio v. United

States INS, supra, at 1042, afTected aliens, such as the respondent here,

could make no argument "that they somehow relied on the availability

of a discretionary waiver of deportation when choosing to engage in

[criminal] activity" leading to an aggravated felony conviction and

resultant 5-year prison term. We are satisfied that legitimate concerns

of notice or fair warning are not implicated in the instant case.

The respondent raises an, additional issue on appeal. He contends

that the application of the aggravated felony bar of section 212(c) to

his convictions constitutes a violation of the Constitution's prohibition against "ex post facto" laws. See U.S. Const. art. I, § 9, cL 3. It is

well established, however, that the prohibition against "ex post facto"

laws does not apply to deportation statutes. Galvan v. Press, 347 U.S.

522, 531-32 (1954); Harisiacies v. Shaughnessy, 342 U.S. 580, 594-95

(1952); Campos v. INS, supra, at 122; Barreiro v. INS, supra, at 64;

Matter of C-, 20 I&N Dec. 529, at 532-33 (BIA 1992). The federal

courts and this Board have consistently held that. Congress may

constitutionally attach new immigration consequences to past criminal

conduct. Lelunan v. United ,States ex. rel. Carson, 353 U.S. 685, 690

(1957); Harisiades v. Shaugnessy, 342 U.S. 580 (1952); Campos v. INS,

supra; De Osorio v. United States INS, supra; Ignacio v. INS, 955 F.2d

295, 29S (5th Cit._ 1992); Matter of C , supra.

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The immigration judge correctly determined that the respondent is

deportable as charged and ineligible, as a matter of law, for a waiver of

inadmissibility under section 212(c) of the Act. The respondent's

appeal will accordingly be dismissed.

The appeal is dismissed.

ORDER:

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