Interim Decision #3440

In re Carlos VASQUEZ-MUNIZ, Respondent

File A36 621 740 - Eloy

Decided December 1, 2000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Possession of a firearm by a felon in violation of section 12021(a)(1) of the California

Penal Code is not an aggravated felony under section 101(a)(43)(E) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(43)(E) (1994), because it is not an offense “described in”

18 U.S.C. § 922(g)(1) (1994). 

Frank T. Morell, Esquire, Chula Vista, California, for respondent

Wilford Calero, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HOLMES,

HURWITZ, VILLAGELIU, ROSENBERG, GUENDELSBERGER, GRANT,

MOSCATO, and MILLER, Board Members. Dissenting Opinions: SCIALABBA,

Vice Chairman; joined by HEILMAN, FILPPU, COLE, MATHON, and JONES,

Board Members.1

HOLMES, Board Member:

In a decision dated November 2, 1999, an Immigration Judge found

that the respondent was subject to removal under section 237(a)(2)(C) of

the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. IV

1998), as an alien convicted of a firearms offense, but not under section

237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony.

The Immigration Judge further determined that the respondent was statutorily eligible for cancellation of removal under section 240A(a) of the Act, 8

U.S.C. § 1229b(a) (Supp. IV 1998), and that such relief should be granted

in the exercise of discretion. The Immigration and Naturalization Service

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Fred W. Vacca, Board Member, participated in the deliberations concerning this case,

but retired prior to the issuance of the final decision. Noel A. Brennan, Cecelia M. Espenoza,

and Juan P. Osuna, Board Members, did not participate in this decision.
Interim Decision #3440

has appealed from this decision. The appeal will be dismissed. The request

for oral argument is denied. 8 C.F.R. § 3.1(e) (2000).

I. FACTS

The facts of this case are not significantly in dispute. The respondent

was admitted to the United States as a lawful permanent resident in 1978

when he was 5 years old. In 1991, when he was 18 years old, the respondent was convicted of robbery in California and was sentenced to 180 days

in jail and 36 months of probation. On December 19, 1996, the respondent

was convicted in the Superior Court of California for the County of Los

Angeles of “possession of a firearm by a felon - one prior” in violation of

section 12021(a)(1) of the California Penal Code, which provides as follows:

Any person who has been convicted of a felony under the laws of the United States,

of the State of California, or any other state, government, or country, or of an offense

enumerated in subdivision (a), (b), or (d) of Section 12001.6, . . . who owns or has in

his or her possession or under his or her custody or control any firearm is guilty of a

felony.

Cal. Penal Code § 12021(a)(1) (West 1996). According to court records,

the respondent was sentenced to the “low term” of 32 months in prison as

a result of this conviction.

On August 11, 1999, the Service issued a Notice to Appear (Form I862) and instituted removal proceedings against the respondent. He was

initially charged with removability under section 237(a)(2)(C) of the Act as

an alien convicted of a firearms offense. The Service subsequently lodged

an additional charge of removability under section 237(a)(2)(A)(iii), alleging that the respondent was convicted of an aggravated felony as defined in

section 101(a)(43)(E)(ii) of the Act, 8 U.S.C. § 110l(a)(43)(E)(ii) (1994).

This provision includes within the definition of “aggravated felony”

an offense described in—

. . .

(ii) sections 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of

title 18, United States Code (relating to firearms offenses).

Section 101(a)(43)(E)(ii) of the Act.

During the course of the proceedings, the respondent admitted the facts

alleged in the Notice to Appear, conceded that he was removable under section 237(a)(2)(C) of the Act as a result of his conviction for a firearms

offense, but denied removability on the aggravated felony charge. The

Immigration Judge asked the Service attorney to identify which of the

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Interim Decision #3440

offenses referenced in section 101(a)(43)(E)(ii) was the basis for the aggravated felony charge. The Service attorney stated that it was 18 U.S.C. §

922(g)(1) (1994).2 The Immigration Judge noted that “affecting interstate

commerce” is an element of the offense under § 922(g), but that this was

not an element of the respondent’s crime under section 12021(a)(1) of the

California Penal Code. However, the Service argued before the

Immigration Judge that there is a presumption that any weapon manufactured in the United States or abroad affects interstate commerce and that it

was the respondent’s burden to establish that the weapon he possessed “was

produced locally, . . . never was shipped anywhere else, . . . wasn’t sold or

bought across state lines, thereby not affecting interstate commerce.” The

Immigration Judge was not persuaded by the Service’s argument in this

regard. Accordingly, he found that the respondent was eligible to apply for

cancellation of removal under section 240A(a) of the Act and allowed him

to fully present his application for relief from removal.

II. IMMIGRATION JUDGE’S DECISION

In his November 2, 1999, decision, the Immigration Judge ruled that

the Service had not met its burden of establishing that the respondent was

removable as an alien convicted of an aggravated felony within the definition of section 101(a)(43)(E)(ii) of the Act. The Immigration Judge held

that the respondent’s conviction under section 12021(a)(1) of the California

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We note that 18 U.S.C. § 922(g), referred to in section 101(a)(43)(E)(ii) of the Act, provides in pertinent part as follows:

It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for

a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance . . . ;

(4) who has been adjudicated as a mental defective or who has been committed to a

mental institution;

(5) who, being an alien, is illegally or unlawfully in the United States;

. . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce.

18 U.S.C. §§ 922(g)(1)-(5).
Interim Decision #3440

Penal Code was not a conviction for an offense “described in” 18 U.S.C. §

922(g)(1) because it lacked “the essential elements of affecting commerce.”

The Immigration Judge ruled alternatively, and more broadly, that to be

subject to removal based on a conviction for an aggravated felony as

defined in section 101(a)(43)(E)(ii) of the Act, an alien must have been convicted of one of the federal offenses specified therein. The Immigration

Judge additionally found that the respondent had adequately demonstrated

that a grant of relief under section 240A(a) of the Act was warranted as a

matter of discretion. Accordingly, he granted the respondent’s application

for cancellation of removal and terminated removal proceedings.

III. SERVICE’S ARGUMENTS ON APPEAL

The Service has appealed from the Immigration Judge’s finding that the

respondent was not removable as an alien convicted of an aggravated felony

and was therefore statutorily eligible to apply for cancellation of removal

under section 240A(a) of the Act.3 The Service acknowledges that in order

to obtain a conviction under 18 U.S.C. § 922(g)(1), it must be established

that (1) the defendant was previously convicted of a felony; (2) the defendant thereafter knowingly possessed a firearm; and (3) the possession was

in or affecting interstate or foreign commerce. See United States v. Taylor,

113 F.3d 1136, 1144 (10th Cir. 1997). The third element is often referred

to as the “jurisdictional element,” which brings the criminal provision within federal legislation power under the Commerce Clause of the United

States Constitution. See U.S. Const. art. I, § 8, cl. 3; see also United States

v. Lopez, 514 U.S. 549, 561 (1995); United States v. Bass, 404 U.S. 336

(1971). The Service argues that it need not establish that the state offense

of which the respondent was convicted contains a federal “jurisdictional

element” to bring it within the definition set forth in section

101(a)(43)(E)(ii) of the Act. Rather, it asserts that only the first two “substantive” elements necessary for a conviction under 18 U.S.C. § 922(g)(1)

must be established for a state offense to be deemed an offense “described

in” § 922(g)(1).

In this regard, the Service notes that the starting point of statutory interpretation must be the language employed by Congress, and that it is

assumed that the legislative intent and purpose of Congress is expressed by

the ordinary meaning of the words used. INS v. Cardoza-Fonseca, 480 U.S.

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The Service does not argue that the respondent is otherwise ineligible for cancellation

of removal under section 240A(a) of the Act, and it has not contested the Immigration Judge’s

favorable exercise of discretion regarding his application for relief. The respondent has not

submitted a brief on appeal.
Interim Decision #3440

421 (1987). “In its ordinary sense,” the Service argues, the phrase

“‘described in’[in section 101(a)(43)(E)(ii) of the Act] means that which is

analogous or similar in nature to that which is being compared.” It urges

that if Congress had intended to require the Service to prove there was a

federal “jurisdictional element” in a state crime of which an alien has been

convicted, Congress would have so stated in the language of section

101(a)(43), or it simply would have required conviction for a federal crime

to establish removability under section 101(a)(43)(E)(ii).

As further support for its position, the Service analogizes the firearms

provisions of 18 U.S.C. § 922 to the Controlled Substances Act, 18 U.S.C.

§ 801 (1994), observing that both implicate Congress’ authority to regulate

interstate commerce. It asserts that 

[d]espite the federal jurisdictional implications within the Controlled Substances Act,

neither the Board nor Federal Courts have ever required that in order to establish

removability pursuant to Section 101(a)(43)(B) of the Act, the Service had to somehow establish that the state crime for which the alien was being deported had some sort

of analogous federal “jurisdictional element” within it or federal jurisdictional implications within its statutory framework.

Moreover, the Service notes that the “aggravated felony” definition in section 101(a)(43) provides that “[t]he term applies to an offense described in

this paragraph whether in violation of Federal or State law.” According to

the Service, the Immigration Judge’s ruling in this case renders this language in section 101(a)(43) “superfluous and meaningless.” The Service

thus contends 

that when looking at the phrase “described in” within the context of the aggravated

felony provisions and in looking at precedent Board decisions, there are no requirements or decisions requiring that the Service establish that the state crime for which

the alien was convicted, had, within it, a federal “jurisdictional element” or analogous

federal jurisdictional implications.

In addition, the Service submits that the Immigration Judge erred in his

alternative finding that, in order to sustain a charge pursuant to section

101(a)(43)(E)(ii) of the Act, the Service must establish that the respondent

had a federal conviction for a violation of 18 U.S.C. § 922(g)(1). In this

regard, the Service notes that section 101(a)(43)(P) of the Act states, in part,

that an aggravated felony is “an offense (i) which either is falsely making,

forging, counterfeiting, mutilating, or altering a passport or instrument in

violation of section 1543 of title 18, United States Code.” (Emphasis

added.) The phrase “in violation of” can only be satisfied by a conviction

under the specified federal criminal provision. The Service argues that

because Congress specifically used the phrase “described in” rather than the

phrase “in violation of” in section 101(a)(43)(E), it made clear that a conviction under 18 U.S.C. § 922(g)(1) is not needed to sustain a charge of

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Interim Decision #3440

removability under section 101(a)(43)(E)(ii). Finally, the Service asserts

that the respondent is statutorily ineligible for cancellation of removal under

section 240A(a) of the Act because he has been convicted of an aggravated

felony.

IV. ANALYSIS

This case presents yet another issue arising from the “aggravated

felony” definition in section 101(a)(43) of the Act. We note at the outset

that there is no dispute that the element in 18 U.S.C. § 922(g)(1) pertaining

to interstate or foreign commerce is the “jurisdictional element” designed to

bring this criminal provision within Congress’ power to regulate under the

Commerce Clause. See United States v. Lopez, supra, at 561.

Characterizing it as such, however, does not change the fact that it is an element of the offense, nor does it answer the question whether an offense can

be deemed an offense “described in” 18 U.S.C. § 922(g)(1) unless it

includes an element pertaining to interstate or foreign commerce.

At issue in this case is the meaning of the phrase “described in” as it is

used in section 101(a)(43)(E) of the Act.4 Interpretation of statutory language begins with the terms of the statute itself. If those terms, on their

face, constitute a plain expression of congressional intent, they must be

given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-43 (1984). It must be assumed that the legislative

purpose is “‘expressed by the ordinary meaning of the words used.’”

American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting

Richards v. United States, 369 U.S. 1, 9 (1962)). The Service agrees and

argues that in “its ordinary sense, ‘described in’ means that which is analogous or similar in nature to that which is being compared.” However, the

Service offers no citation of authority for this definition of the phrase

“described in.” Nor does it identify any statutory or regulatory provision in

which this phrase is used with such a connotation. 

The word “describe” is defined as follows: “To narrate, express,

explain, set forth, relate, recount, narrate, depict, delineate, portray [or]

sketch.” Black’s Law Dictionary 445 (6th ed. 1990). It is also thus defined:

“To represent by words written or spoken; . . . to state in detail the particulars of.” Webster’s New International Dictionary 706 (2d ed. 1959). The

phrase “described in” is used in numerous sections of the Immigration and

Nationality Act and the regulations. We have found no instance in which it

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The term “described in” is also used in sections 101(a)(43)(D), (E), (H), (I), (J), (K)(ii),

(iii), (L), (M)(ii), (N), and (O) of the Act.
Interim Decision #3440

is used in a manner consistent with the Service’s proffered definition. See,

e.g., sections 101(b)(1)(E)(ii), (f)(3), 204(a)(1)(A), (B), 210(b)(7)(B),

216(c)(1)(A), 236(c)(2), 245(c), (e)(1) of the Act, 8 U.S.C. §§

1101(b)(1)(E)(ii), (f)(3), 1154(a)(1)(A), (B), 1160(b)(7)(B), 1186a(c)(1)(A),

1226(c)(2), 1255(c), (e)(1) (1994 & Supp. IV 1998); see also 8 C.F.R. §§

1.1(t), 204.6(j)(3)(ii), 236.1(c)(8), 240.26(b)(1)(i)(E) (2000).5 Each usage

of the phrase “described in” in these statutory and regulatory provisions

reflects a more specific meaning than something merely “similar to” that

which is referenced; rather, in each instance, the phrase “described in”

clearly refers to something specifically set forth elsewhere in the statute or

regulation. Id.

Moreover, the phrase “described in” is regularly used in Title 18 of the

United States Code. In each provision that we have reviewed, the phrase is

used with a meaning more precise than that argued by the Service, i.e., it is

used to refer to a matter specifically delineated elsewhere in the law. See,

e.g., 18 U.S.C. §§ 521, 921(a)(33)(B)(II), 924(d)(3)(C), (D), (E), 932(d),

1831(a)(4), (5), (b), 1832, 3142(e)(1), (f)(1)(D), 3551, 3554, 3591(a)(1),

3592(b), 3593(a), 3607, 3663(c)(1), 5032, 5038(d) (1994 & Supp. IV

1998). In fact, in various of these provisions, it is clear that the phrase is

used to refer to an individual actually convicted under the referenced section of law, because the usage occurs in a sentencing or postsentencing provision. See, e.g., 18 U.S.C. §§ 3551, 3554, 3591(a)(1), 3592(b), 3593(a),

3607, 3663(c)(1). Accordingly, we are not persuaded by the Service’s argument that the term “described in” can be rather loosely construed to mean

something that is “analogous or similar in nature to that which is being

compared,” but which need not actually meet the description of the matter

to which it refers. In the case before us, it is not disputed that the elements

of the pertinent state crime of which the respondent was convicted do not

include all three of the elements necessary for conviction of the federal

offense described in 18 U.S.C. § 922(g)(1). 

The Service argues that if Congress had intended to require it to establish that there was a federal “jurisdictional element” in a state crime of

which an alien has been convicted, Congress would have explicitly included language to that effect in section 101(a)(43)(E) of the Act. However, to

accept this argument, we would be obliged to read an additional clause into

the actual language in section 101(a)(43)(E), which would exclude from the

description of the referenced offense any element that gives rise to federal

jurisdiction. This would, in effect, be an administrative redrafting of the

language of section 101(a)(43). Moreover, where Congress has wished to

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These referenced provisions, which are simply representative of many others in the Act

and the regulations that employ the term “described in,” will not be set forth in this decision.
Interim Decision #3440

include such language, it has done so explicitly. For example, 18 U.S.C. §

3142(e)(1) pertains to the release or detention of a defendant in federal

criminal proceedings pending trial. That section provides in part that, in a

case described in § 3142(f)(1), a rebuttable presumption arises that no condition or combination of conditions can reasonably assure the safety of any

other person and the community if a judicial officer finds that

the person has been convicted of a Federal offense that is described in subsection (f)(1)

of this section, or of a State or local offense that would have been an offense described

in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction

had existed. 

18 U.S.C. § 3142(e)(1) (emphasis added); see also 18 U.S.C. §

3142(f)(1)(D) (referring to “two or more State or local offenses that would

have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed”); 18

U.S.C. § 5032 (referring to offenses “described in” various federal statutes

and additionally referencing an act “which if committed by an adult would

have been one of the offenses set forth in this paragraph or an offense in violation of a State felony statute that would have been such an offense if a circumstance giving rise to Federal jurisdiction had existed”).

Thus, where Congress has referred to crimes “described in” federal

statutes, but has wished to exclude from the described crime the element

giving rise to federal jurisdiction, it has done so explicitly. Given this fact,

the ordinary meaning of the phrase “described in,” and the manner in which

this phrase has customarily been used in federal laws and regulations, we

cannot find adequate support for the Service’s position that an element of

the crime “described in” 18 U.S.C. § 922(g)(1) can simply be ignored.

Whatever Congress’ ultimate intent may have been in this regard, we are

bound to follow the express language of the statute.6

The Service argues that such a conclusion is inconsistent with the

Board’s previous rulings with regard to deportability resulting from an

alien’s conviction for an aggravated felony described in section

101(a)(43)(B) of the Act. See, e.g., Matter of L-G-, 21 I&N Dec. 89 (BIA

1995); Matter of Davis, 20 I&N Dec. 536 (BIA 1992); Matter of De La

Cruz, 20 I&N Dec. 346 (BIA 1991); Matter of Roberts, 20 I&N Dec. 294

(BIA 1991); Matter of Barrett, 20 I&N Dec. 171 (BIA 1990). However, the

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We have not been directed to any legislative history in support of the Service’s position.

The only pertinent federal court decision we have located did not decide whether the “obvious difference” between 18 U.S.C. § 922(g), which requires an interstate or foreign commerce

element, and a Washington State crime, which did not, “matters, or whether it is merely a

jurisdictional basis not essential to whether the state crime is an aggravated felony.” United

States v. Sandoval-Barajas, 206 F.3d 853, 856 (9th Cir. 2000). 
Interim Decision #3440

definition set forth in section 101(a)(43)(B) of the Act is not formulated in

the same manner as that in section 101(a)(43)(E). We find no inconsistency in this regard.

The Service argues further that the Immigration Judge’s decision renders “superfluous and meaningless” the language of section 101(a)(43),

which states that the term “aggravated felony” “applies to an offense

described in this paragraph whether in violation of Federal or State law.”

However, this is not the case. This language makes clear that an offense

that meets the description in one of the subsections of section 101(a)(43)

is an aggravated felony whether the crime is in violation of federal or state

law. This phrase does not mean that every subsection of section

101(a)(43) necessarily describes an offense in violation of both federal

and state law. In fact, it is clear that such is not the case. See, e.g., sections 101(a)(43)(L), (N) of the Act. 

We note that it was once a matter of dispute whether a previous version

of the aggravated felony definition in section 101(a)(43), which referenced

“any drug trafficking crime as defined in [18 U.S.C. § 924(c)(2)],” was limited to federal “drug trafficking crimes.” See Matter of Barrett, supra, at

172-73. In Barrett, a majority of the Board concluded that it was not so limited. In that case, the record was remanded to the Immigration Judge for a

determination whether the respondent’s state conviction “include[d] all the

elements necessary for a conviction under 21 U.S.C. § 841(a)(1).” Id. at

178 (emphasis added). The definition of an aggravated felony in section

101(a)(43) of the Act was thereafter amended by Congress to include the

above-quoted language in order to codify the ruling of the Board in Matter

of Barrett. See Matter of Davis, supra, at 540 n.3.7

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Perhaps the strongest argument in support of the Service’s position would be that the

referenced language in section 101(a)(43) is simply another manner of stating that the aggravated felony definition includes any state offense that “would have been an offense described

in . . . this section if a circumstance giving rise to Federal jurisdiction had existed.” 18 U.S.C.

§ 3142(e)(1). However, we do not find an adequate basis arising from the actual language

used in section 101(a)(43) to construe the provision in this manner, particularly as it sets forth

a reasonable meaning as drafted.

We have addressed the arguments advanced by the appellant rather than those separately formulated by the dissent. Nonetheless, we are not persuaded by the dissent’s argument,

in which it is straightforwardly admitted that the provisions in question “are not artfully drafted.” Matter of Vasquez-Muniz, 22 I&N Dec. 1415, at 1425 (BIA 2000) (Scialabba, dissenting). The dissent rightfully focuses on the provision in section 101(a)(43) of the Act that

states that the term aggravated felony “applies to an offense described in this paragraph

whether in violation of Federal or State law and applies to such an offense in violation of the

law of a foreign country.” We agree that the strongest argument that can be marshaled for the

Service’s ultimate position arises from this language. However, this provision does not state

that every subsection in section 101(a)(43) necessarily has a possible state or foreign counterpart and, as the dissent acknowledges, such is not the case. See section 101(a)(43)(P)(i) of
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Accordingly, we are not persuaded that the Immigration Judge erred in

finding that the respondent’s conviction under section 12021(a)(1) of the

California Penal Code is not a conviction for an offense “described in” 18

U.S.C. § 922(g)(1), because the elements of the state offense do not adequately match those “described in” this federal law. Therefore, we affirm

the Immigration Judge’s finding that the Service failed to establish that the

respondent has been convicted of an aggravated felony. 

In view of our holding in this regard, we do not find it necessary to

address the broader ruling of the Immigration Judge on the question

whether the phrase “described in” in section 101(a)(43) of the Act requires

that a conviction be pursuant to one of the specified federal statutes in order

to qualify as an aggravated felony. However, we note that the Service’s

argument on this point has significant force, given the usage of the phrase

“in violation of” in section 101(a)(43)(P)(i), which is not used elsewhere in

section 101(a)(43), and which more clearly reflects that a conviction under

18 U.S.C. § 1543 is required. See also section 241(a)(4)(B)(ii) of the Act,

8 U.S.C. § 1231(a)(4)(B)(ii) (Supp. IV 1998); United States v. SandovalBarajas, 206 F.3d 853 (9th Cir. 2000).

V. CONCLUSION

The Service’s sole basis for contesting the Immigration Judge’s grant of

cancellation of removal to the respondent under section 240A(a) of the Act

is that the respondent is statutorily ineligible for such relief as a result of his

conviction for an aggravated felony. Because we are not persuaded that the

respondent has been convicted of an aggravated felony, we do not find him

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the Act. Rather, this sentence refers to any offense “described in this paragraph,” which

returns one to the meaning of this “described in” language used in various places in section

101(a)(43). Does this provision clarify that those state or foreign offenses that actually meet

the definition of an offense “described in” a specific subsection of section 101(a)(43) are

aggravated felonies, a matter that was once in dispute? Notably, there are many such offenses (e.g., murder, rape, sexual abuse of a minor, drug trafficking, crimes of violence, theft, and

burglary), and they include the vast majority of the aggravated felonies actually at issue in

removal proceedings. Or, as the dissent contends, is this phrase properly read as stating that

every subsection of section 101(a)(43) may have a state and foreign counterpart so long as

the state or foreign law is an offense “described in” the subsection but for any federal “jurisdictional” element in the “described” offense? We ultimately are not persuaded that this latter reading is supported by the plain language of the statute, particularly as this provision has

a significant meaning without being so construed and given the “longstanding principle of

construing any lingering ambiguities in deportation statutes in favor of the alien.” INS v.

Cardoza-Fonseca, supra, at 449 (citing INS v. Errico, 385 U.S. 214, 225 (1966); Costello v.

INS, 376 U.S. 120, 128 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)).
Interim Decision #3440

statutorily ineligible for cancellation of removal on this basis. Accordingly,

the Service’s appeal will be dismissed. 

ORDER: The appeal of the Immigration and Naturalization Service

is dismissed.

DISSENTING OPINION: Lori L. Scialabba, Vice Chairman; in which

Michael J. Heilman, Lauri Steven Filppu, Patricia A. Cole, Lauren R.

Mathon, and Philemina McNeill Jones, Board Members, joined

I respectfully dissent.

I. ISSUE

The issue presented in this case is whether the respondent’s California

conviction for possession of a firearm by a felon is a conviction for an

aggravated felony as defined in section 101(a)(43) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. IV 1998). The

majority finds that the respondent’s crime is not an aggravated felony. I

would find that it is. 

The majority errs in its efforts to interpret section 101(a)(43) of the Act,

by prematurely shifting its focus away from the language of the Act as it is

used in the statute itself and in the section where the language appears.

When viewed correctly, section 101(a)(43) requires us to classify an offense

under the state statute at issue here, which criminalizes the possession of a

firearm by a felon, as an aggravated felony. The crime defined in the state

statute need not have a federal jurisdictional element in order to be so classified. By taking the contrary view, the majority undermines the congressional purpose behind much of the aggravated felony provision.

II. ANALYSIS

A.

The majority opinion loses its bearings, in part, by prematurely resorting to points of reference outside the Act in an effort to interpret the language inside the Act. In particular, when the meaning of the phrase

“described in” does not emerge clearly from an evaluation of section

101(a)(43)(E), the majority, in response to the Service’s argument, expends

a good deal of effort examining the use of these terms in various parts of

federal law outside the aggravated felony provision and outside the Act.

This leads the majority’s analysis astray.

When we are confronted with apparent ambiguities in the language of

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Interim Decision #3440

a statute, our first and most critical inquiry must be, as the majority

acknowledges, the plain meaning of the statutory language at issue. But in

making this inquiry, it is critical that we first examine the language in its

proper place within the context and design of the statute as a whole. K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); Matter of Alvarado-Alvino,

Interim Decision 3391 (BIA 1999). Here, the majority’s inductive inquiry

into the uses of the phrase “described in” neglects key features of the context in which the phrase occurs in the aggravated felony provision itself and

thereby misconstrues the meaning of that provision.

For example, in examining the language of section 101(a)(43)(E), the

majority’s opinion focuses on a dictionary definition of the word

“described” as well as on the use of this word elsewhere in federal law. In

so doing, the majority largely neglects the fact that the phrase “described

in” has a dual usage in the aggravated felony provision itself. Another

important occurrence of these words lies outside of subsection (E), in the

penultimate sentence of section 101(a)(43). This portion of the statute,

which governs all the subsections of section 101(a)(43) of the Act, states the

following:

The term [aggravated felony] applies to an offense described in this paragraph whether

in violation of Federal or State law and applies to such an offense in violation of the

law of a foreign country for which the term of imprisonment was completed within the

previous 15 years.

This language unfolds the meaning of the aggravated felony provision

in several ways that are left unexamined by the majority. First, the quoted sentence refers the reader to all of the crimes “described in” the aggravated felony provision. The language draws no distinctions among the

various subsections of section 101(a)(43), such that we could conclude

that some subsections describe aggravated felonies regardless of jurisdiction whereas others do not.1 Thus, we know from the language of the

aggravated felony provision itself that whether the offense in question is

a common-law crime such as murder, described in section 101(a)(43)(A);

a criminal business activity of the type described in subsection (K)(i); or

a crime described by reference to federal statute, as in the subsection at

issue here, namely subsection (E), the Act as a whole treats the crime as

an aggravated felony regardless of any purely jurisdictional element that

may be “described in” a given subsection. According to the design of the

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1

The one exception is in section 101(a)(43)(P)(i) of the Act, where more specific language

requiring a “violation of” 18 U.S.C. § 1543 or § 1546(a) overrides the general direction of the

penultimate sentence of section 101(a)(43) as a whole. Here, too, the majority goes astray,

mistakenly invoking this sole exception in order to suggest the absence of a general rule. 
Interim Decision #3440

statute, all of these categories are aggravated felonies “whether in violation of Federal or State law, [or] the law of a foreign country.” Section

101(a)(43) of the Act. 

Thus, even before we arrive at the question on which the majority

focuses so closely, namely, precisely what crime is “described in” subsection (E) of the Act, we already know that the broader language appearing at

the end of section 101(a)(43) applies to it. If we are to give it meaning, that

language renders irrelevant any jurisdictional elements appearing in the

crimes listed in section 101(a)(43). 

Furthermore, once Congress has already made the broad statement that

violations of federal, state, and foreign law are all included in the definition

of an aggravated felony, it need not restate in each subsection that such

crimes are to be regarded as aggravated felonies even if they lack a federal

jurisdictional element.

In short, by focusing on the Service’s argument about the definition of

“described in,” the majority misses the key point: the governing language

in the penultimate sentence of section 101(a)(43) tells us how to interpret

the language of subsection (E). If this governing language means anything,

it is that the respondent’s crime in violation of state law is an aggravated

felony regardless of who had jurisdiction over it. 

B.

The majority’s opinion also seems inattentive to important consequences of its analysis for interpreting other subsections of the aggravated

felony provision. These consequences run contrary to the design of the

aggravated felony provision and its apparent function within the design of

the Act as a whole. 

For example, the penultimate sentence of section 101(a)(43) specifies

three types of violations of law that Congress intended to classify as aggravated felonies: violations of federal law, state law, and the law of a foreign

country. All three are important to the aggravated felony definition.

Perhaps most revealing about the statutory design is the Act’s inclusion of

violations of foreign law as aggravated felonies. The majority’s analysis is

especially problematic in this regard.

The majority reasons that Congress must not have intended the key

language at the end of section 101(a)(43) to apply to all the crimes in all

the subsections, because at least two of them—subsections 101(a)(43)(L)

(specifying national security offenses) and (N) (specifying alien smuggling offenses)—show that there are circumstances where no state law

counterpart to a federal statute mentioned in section 101(a)(43) exists.

However, this reasoning is erroneous. The fact that there is no state law

counterpart to a federal statute does not mean there is no foreign counterpart. 

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In addition, most foreign statutes, arising as they generally do under

circumstances not akin to our federal system, are extremely unlikely to contain jurisdictional elements similar to those appearing in our federal

statutes. Thus, although the statutory directive in the penultimate sentence

of section 101(a)(43) requires us to regard certain specified crimes as aggravated felonies, including certain violations of foreign law, the majority’s

analysis would frequently prevent us from doing so.

Under the majority’s view, for example, a number of grave offenses

clearly “described in” the subsections of section 101(a)(43) of the Act will

be found to have no foreign counterpart and will not be classified as

aggravated felonies despite Congress’ apparent intent to so classify them.

We may be forced by the majority’s analysis to conclude, for instance,

that under section 101(a)(43)(M)(ii), defrauding one’s government of millions of dollars through willful failure to pay legitimate taxes is not an

aggravated felony because the United States Internal Revenue Code,

which is referenced in that subsection, specifies that the offense must

“evade or defeat . . . any tax imposed” by the federal Internal Revenue

Code itself—a purely jurisdictional requirement. 26 U.S.C. § 7206(4)

(1994) (limiting criminal liability to evasion of taxes “imposed by this

title”). We would also likely be constrained to find that a racketeering

conviction for processing millions of dollars worth of stolen property

abroad is not an aggravated felony; and that smuggling aliens through

Canada, or issuing ransom demands for hostages in Mexico, or stockpiling explosive materials in France, or even being convicted in a foreign

jurisdiction of possession of a firearm by a felon, are not aggravated

felonies, because unlike the federal statutes referenced in the Act, these

foreign crimes are unlikely to have a federal jurisdictional element. See

sections 101(a)(43)(C), (D), (E), (H), (N) of the Act. 

The same may be said, of course, of various state laws in addition to the

one at issue in the instant case. Under the majority’s view, defrauding

Nebraska of more than $10,000 in violation of state tax laws would presumably not be an aggravated felony, simply because such crime does not

violate the federal Internal Revenue Code. Similarly, violating child

pornography laws in New Mexico may not be an aggravated felony because

the federal crime defined as an aggravated felony in the Act includes a federal jurisdictional element. 

These consequences of the majority’s opinion contravene the explicit

statutory directive Congress has provided in the penultimate sentence of section 101(a)(43): to identify the specified crimes as aggravated felonies

whether in violation of federal or state law, or the law of a foreign country. I

consider it unreasonable to assume, especially in the face of language to the

contrary, that Congress intended to exclude certain specified crimes from the

definition of an aggravated felony simply because they lack a jurisdictional

element that would be meaningless to the enacting foreign or state jurisdiction.

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C.

Other features of the majority’s decision are also problematic. The

majority’s reasoning, for example, leads beyond the conclusion the majority reaches. The majority opinion states that “it [is not] necessary to address

the . . . question whether the phrase ‘described in’ in section 101(a)(43) of

the Act requires that a conviction be pursuant to one of the specified federal statutes in order to qualify as an aggravated felony.” Matter of VasquezMuniz, 22 I&N Dec. 1415, at 1424 (BIA 2000). As a practical matter, however, the majority’s opinion results in just such a determination. 

No state statute prohibiting felony possession of firearms is likely to

explicitly contain an element of “interstate commerce” or “affecting commerce.” Not surprisingly, my research has revealed none. Nor would foreign statutes be likely to contain such an element, as already noted. Thus,

despite the majority’s demurrer in this regard, its analysis requires us to, in

effect, read “described in” within section 101(a)(43)(E) of the Act as having the same precise meaning as “in violation of,” a phrase that Congress

knew to use, and did use, in section 101(a)(43)(P)(i). Certainly Congress

could have used these same terms to describe the crimes in section

101(a)(43)(E) had it intended to express the same meaning. Apparently,

however, it did not.

D.

All of the foregoing points to a broader issue that the majority has not

attempted to fully address, namely, how our interpretation of section

101(a)(43) fits within the overall design of the Act. 

In its place within the Act, the aggravated felony provision in section

101(a)(43) serves to define categories of criminal conduct that Congress

finds egregious and to which it attaches negative immigration consequences. The Act accomplishes this by rendering aggravated felons both

removable and ineligible for certain immigration benefits and forms of

relief. The aggravated felonies Congress has specified in section 101(a)(43)

of the Act for this kind of treatment are offenses that are malum in se, or

evidence some level of danger to the community, or violate civic virtue and

render the alien, in the eyes of Congress, undesirable or unworthy to remain

in the United States.

Although the specific provisions in question here are not artfully drafted, we are called upon to interpret them in a way that makes sense of the

words Congress used, in the context of the design of the statute as a whole.

K Mart Corp. v. Cartier, Inc., supra. Applying this principle in light of all

of the above observations taken together, the language and design of the Act

evince a clear purpose. By virtue of the statutory directive in the penultimate sentence, the aggravated felony provision reflects the intent of

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Congress to reach certain types of crimes regardless of which jurisdiction

prosecuted the offense. Thus, in this case, classifying as aggravated

felonies both state and federal crimes for possession of a firearm by a felon,

with all the attendant immigration consequences, comports with the design

of the statute as a whole.

By contrast, I see no particular design emerging from the language of

the statute as construed by the majority. Nor has the majority sought to fit

its interpretation within any apparent congressional design. For example,

the majority’s analysis does not explain why Congress would have taken the

position that a felon convicted of possession of a firearm in violation of

state law is not just as undesirable as a felon convicted of the same crime in

violation of federal law. The design of section 101(a)(43) appears to indicate otherwise. By including as aggravated felonies all specified violations

of law, whether they were federal, state, or foreign, Congress showed its

concern with the gravity of an alien’s conduct, not with the question of who

had jurisdiction over the crime. The effect of the majority’s analysis would

be to frequently undercut this statutory scheme by excluding from the definition of an aggravated felony the very substantive criminal activities that

Congress intended to combat. 

Moreover, the majority’s analysis makes Congress’ language puzzling

rather than enlightening. If, as the majority suggests, the statutory

scheme reveals Congress’ intent to resolve within each subsection of section 101(a)(43) the question of the significance of purely jurisdictional

elements in the specified crimes, it is unclear why the broad language in

the penultimate sentence of that section is necessary. Had Congress

wished to differentiate this issue subsection-by-subsection, it could easily

have done so. It did not. 

In short, the only way we can read the respondent’s crime as not being

an aggravated felony is by insisting, as does the majority, upon the importance of the very federal jurisdictional element in the criminal statute that

the language of the Act directs us to ignore.

E.

In addition to the foregoing, this Board’s treatment of the distinction

between federal and state crimes has differed significantly from the

approach articulated by the majority. The Board grappled with this issue

in a line of cases interpreting section 101(a)(43)(B) of the Act, beginning

with Matter of Barrett, 20 I&N Dec. 171 (BIA 1990). Barrett held that

drug trafficking crimes were aggravated felonies under section

101(a)(43)(B) of the Act, whether they were in violation of federal or state

law. As noted by the majority, Congress subsequently amended the Act to

codify the Board’s ruling in Barrett. The analogy to the instant case is

stronger than the majority is willing to concede.

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The majority does not find Matter of Barrett, supra, especially significant because it concludes that section 101(a)(43)(B) (involving drug

crimes) is “not formulated in the same manner as that in section

101(a)(43)(E)” (involving firearms offenses). Matter of Vasquez-Muniz,

supra, at 1423. However, there are important similarities, as both sections

are governed by the broad language appearing in the penultimate sentence

of section 101(a)(43) and both concern whether the term “aggravated

felony” encompasses a state crime through reference to a federally

defined crime. Thus, many of the factors we took into account in Matter

of Barrett, supra, to resolve the latter question with respect to section

101(a)(43)(B) are equally instructive here. These factors included the following:

(i) the broad language of the new provision (“any drug trafficking crime”);

(ii) the fact that former section 241(a)(4) of the Act, which was amended to

include the aggravated felony ground of deportation, had always been interpreted to

include state offenses; 

(iii) the fact that “the Act generally does not attach different treatment to state and federal drug offenses with respect to excludability, deportability, or the negative effect of

a drug conviction on various forms of relief from exclusion or deportation”; and 

(iv) the fact that a contrary view “would discriminate between state and federal drug

crimes . . . in a way previously unknown in the Act.”

Matter of Barrett, supra, at 175-76. We also found that it was “unreasonable to assume that Congress, in choosing the definition of ‘drug trafficking crime’ at 18 U.S.C. § 924(c)(2), sought to differentiate between aliens

convicted of similar drug-related offenses on the basis of whether the conviction was accomplished under state or federal law.”2 Id. at 175.

In the instant case, we are again faced with broad language suggesting

that we should make no distinction between federal and state crimes in

determining whether a given offense is an aggravated felony. Therefore, I

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2

We also stated as follows:

Inclusion of state crimes in the definition of “drug trafficking crime” is also consistent

with the Immigration and Nationality Act read as a whole. Congress chose to append

the new ground of deportability relating to aggravated felons to section 241(a)(4) of

the Act which has always been read to include state crimes. Absent a clear intent to

depart from the prior undisputed inclusion of state crimes under section 241(a)(4), we

find no reason to believe that Congress, in adding the aggravated felony provision to

this section, meant to exclude state drug-related crimes when it chose the definition of

“drug trafficking crime” at 18 U.S.C. § 924(c)(2). 

Matter of Barrett, supra, at 175-76.
Interim Decision #3440

would find, as we did in Barrett, that it is “unreasonable to assume” that

Congress sought to make a distinction between federal and state crimes

purely on jurisdictional grounds, without specifically so stating. I would

find that when Congress plainly states that certain crimes, described in

specified legislation, are to be treated as aggravated felonies, whether in

violation of federal or state or foreign law, and describes a statute setting

forth the substantive elements of a crime, such as possession of a firearm by

a felon, Congress intends for us to disregard any purely jurisdictional elements of the crime when determining whether it is an aggravated felony.

Such is the case here. 

III. CONCLUSION

My colleagues in the majority seem to find that the meaning of the

aggravated felony provision of the Act, as applied to this matter, can best be

discerned by interpreting section 101(a)(43)(E) of the Act through a dictionary definition of the word “describe” and an inductive survey of the use

of this term outside the Act. I find this inductive inquiry neither necessary

nor conclusive, because the phrase “described in” at section 101(a)(43)(E)

is governed by broader language that appears elsewhere in the same section

of law. This governing language indicates that any crime described in any

subsection of section 101(a)(43) is an aggravated felony, whether it violates

federal, state, or foreign law. 

This governing language, the context in which it occurs, the design of

the Act, and the history of our treatment of the federal/state distinction in

the aggravated felony context all indicate that a violation of state or foreign

law that has the same elements as a referenced federal law—except for the

jurisdictional element that makes such laws federal—should be regarded as

an aggravated felony. 

I would therefore find that the respondent, a felon convicted of possession of a firearm, need not violate 18 U.S.C. § 922(g)(1) in order to run

afoul of the aggravated felony provision. Although the state offense of

which he was convicted does not contain the federal jurisdictional element

of § 922(g)(1), it nonetheless satisfies the definition of an aggravated felony

under section 101(a)(43)(E) of the Act. Consequently, I would find the

respondent ineligible for relief from removal.

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