Interim Decision #3370

In re Robert A. LETTMAN, Respondent

File A17 599 144 - Bradenton

Decided November 5, 1998

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien convicted of an aggravated felony is subject to deportation regardless of

the date of the conviction when the alien is placed in deportation proceedings on or after

March 1, 1991, and the crime falls within the aggravated felony definition.

Joan Friedland, Esquire, Miami, Florida, for respondent

David Rubman, Esquire, Chicago, Illinois, amicus curiae for respondent1

James K. Grim, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, JONES, GRANT, and

SCIALABBA, Board Members. Concurring and Dissenting Opinion: GUENDELSBERGER, joined by SCHMIDT, Chairman. Dissenting Opinion: ROSENBERG, Board Member.

FILPPU, Board Member:

In a decision dated December 12, 1996, an Immigration Judge found

the respondent deportable as an alien convicted of an aggravated felony at

any time after entry under section 241(a)(2)(A)(iii) of the Immigration

and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994).2 The respon365

1

The Board acknowledges with appreciation the thoughtful briefs which were submitted

by the respondent, the Immigration and Naturalization Service, and the American

Immigration Lawyers Association. 2

We note that the distinction between deportation and exclusion proceedings was eliminated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division

C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”). Under the IIRIRA, an alien subject to a Notice to Appear issued on or after April 1, 1997, is placed in removal proceedings.

The aggravated felony ground of removal is found at section 237(a)(2)(A)(iii) of the Act, 8

U.S.C, § 1227(a)(2)(A)(iii) (Supp. II 1996) (referring to an alien who is “convicted of an

aggravated felony at any time after admission”). Currently, section 241 of the Act, 8 U.S.C. §

1231 (Supp. II 1996), relates to the detention and removal of aliens ordered removed.
Interim Decision #3370

dent appealed this decision. The Board dismissed the appeal on July 7,

1997. On August 4, 1997, the respondent filed a motion to reconsider. We

will grant the respondent’s motion to reconsider and issue a new decision

in this case. Upon reconsideration, the respondent’s appeal will again be

dismissed.

I. ISSUE

In his motion to reconsider, the respondent asserts that he should not be

found deportable under section 241(a)(2)(A)(iii) of the Act because his

aggravated felony conviction occurred before the November 18, 1988,

enactment date of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

102 Stat. 4181 (“ADAA”). He relies on the language set forth in section

7344(b) of the ADAA, 102 Stat. at 4471, which limited deportability under

the former aggravated felony ground to convictions on or after November

18, 1988.

We conclude that an alien who was charged on or after March 1, 1991,

with deportability for an aggravated felony conviction is subject to deportation, regardless of the date of conviction, if the crime fits within the aggravated felony definition. In reaching this decision, we find that section 602

of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5077

(“1990 Act”), eliminated the date restriction on the aggravated felony

ground set forth in the ADAA.

II. CASE HISTORY

The respondent is a 37-year-old native and citizen of Jamaica who

became a lawful permanent resident of the United States in 1968. On July

30, 1996, the Immigration and Naturalization Service issued an Order to

Show Cause and Notice of Hearing (Form I-221), which charged the

respondent with deportability under section 241(a)(2)(A)(iii) of the Act. It

was alleged that on January 23, 1987, the respondent was convicted in the

Circuit Court in and for Broward County, Florida, of the offense of murder

in the third degree. It is undisputed that the respondent’s original sentence

was reduced to 7 years, and that he served 2 years before being released on

probation.3

The respondent appeared before the Immigration Judge and admitted

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3

The conviction documents, admitted as an exhibit by the Immigration Judge, are not in

the record before us on appeal.
Interim Decision #3370

the factual allegations in the Order to Show Cause. However, he denied

deportability and filed a motion to terminate the proceedings. The respondent argued that he was not deportable as charged because his conviction

occurred before the November 18, 1988, enactment date of the ADAA. The

Service filed a statement in opposition to the motion.

At a hearing on December 12, 1996, the Immigration Judge denied the

respondent’s motion to terminate. The Immigration Judge cited changes to

the immigration law made by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,

110 Stat. 3009-546 (“IIRIRA”), which applied the definition of an aggravated felony to the enumerated crimes regardless of conviction date. See

infra note 4. The Immigration Judge found the respondent deportable as

charged and ineligible for relief from deportation, and ordered him deported to Jamaica. 

The respondent filed an appeal. The Board affirmed the decision of the

Immigration Judge in a short order dated July 7, 1997, which cited to

Matter of A-A-, 20 I&N Dec. 492 (BIA 1992). 

The respondent subsequently filed this motion to reconsider. The

respondent argues that the Board erred in upholding the deportation charge

because his conviction occurred before the November 18, 1988, enactment

date of the ADAA. The Board requested supplemental briefs from the parties and amicus curiae. In our request, we asked whether section 602(c) of

the 1990 Act, 104 Stat. at 5081, had an effect on section 7344(b) of the

ADAA. The Board also asked the parties to consider Federal circuit court

law which addressed the effect of section 602(c) of the 1990 Act on the

firearms deportation ground.

On review, the Board agrees with the respondent that our previous decision should be reconsidered in light of additional legal arguments.

Therefore, the motion to reconsider will be granted. See 8 C.F.R. § 3.2(b)

(1998). We conclude that the respondent is deportable as charged, although

we employ a different analysis from that used in our previous decision. We

will first set out the relevant statutory provisions and then explain the reasoning behind our decision.

III. SECTION 7344(b)(1988) AND SECTION 602(1990) 

The aggravated felony ground of deportation was added by section

7344(a) of the ADAA, 102 Stat. at 4470, and was designated as section

241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4)(B) (1988). It provided for

the deportability of an alien “convicted of an aggravated felony at any

time after entry.” Id. In section 7344(b) of the ADAA, it was stated that

the amendment “shall apply to any alien who has been convicted, on or

after the date of the enactment of this Act [November 18, 1988], of an

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aggravated felony.”4

The 1990 Act amended and redesignated the deportation grounds then

found at section 241(a) of the Act, 8 U.S.C. § 1251(a) (Supp. II 1990). The

aggravated felony ground was redesignated as section 241(a)(2)(A)(iii) of

the Act, but the text was identical to that in the former version found at section 241(a)(4)(B) of the Act. See Matter of Papazyan, 20 I&N Dec. 568

(BIA 1992), We focus on section 602 of the 1990 Act, which was titled

“Revision of Grounds for Deportation.” Subsection 602(a) was called

“Revised Grounds for Deportation,” and it set out the newly reorganized

deportation grounds. The section further stated as follows:

(c) SAVINGS PROVISION.—Notwithstanding the amendments made by this section,

any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, as in effect before the date of the

enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically provided in such section and subsection (d), the provisions of such

section, as amended by this section, shall apply to all aliens described in subsection

(a) thereof notwithstanding that (1) any such alien entered the United States before the

date of the enactment of this Act, or (2) the facts, by reason of which an alien is

described in such subsection, occurred before the date of the enactment of this Act. 

(d) EFFECTIVE DATE.—The amendments made by this section, and by section

603(b) of this Act, shall not apply to deportation proceedings for which notice has

been provided to the alien before March 1, 1991.

1990 Act §§ 602(c), (d), 104 Stat. at 5081-82 (emphasis added). The issue

for consideration is whether the language of section 602 eliminated the temporal limitation set forth in section 7344(b) of the ADAA (the “convicted

on or after” November 18, 1988, language), We conclude that it did. We first

set out the arguments presented by the parties.

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4

The ADAA set out the definition of an aggravated felony at section 101(a)(43) of the

Act, 8 U.S.C. § 1101(a)(43) (1988), It included murder, drug-trafficking crimes, and weapontrafficking violations. Subsequently, the list of crimes in section 101(a)(43) of the Act was

expanded, and various effective dates were applied to amended definitions.

Most recently, the IIRIRA specified that “[n]otwithstanding any other provision of law

(including any effective date), the term [aggravated felony] applies regardless of whether the

conviction was entered before, on, or after the date of enactment of this paragraph.” IIRIRA

§ 321(b), 110 Stat. at 628 (codified at 8 U.S.C. § 1101(a)(43) (Supp. II 1996) (final paragraph)). It also provided that the change to the aggravated felony definition would apply to

“actions taken on or after the enactment of this Act, regardless of when the conviction

occurred.” IIRIRA § 321(c), 110 Stat. at 628.

Our decision today involves a crime which fell within the original definition of an aggravated felony. We therefore have not addressed the interaction between the prospective limitations which once existed in section 101(a)(43) of the Act, and the most recent changes to the

aggravated felony definition. 
Interim Decision #3370

IV. THE ARGUMENTS PRESENTED 

A. The Position of the Respondent

The respondent argues that the issue of deportability should be analyzed under the two-part test set out in Matter of A-A-, supra. Under this

analysis, the Board should first look at whether the respondent’s crime fits

the definition of an aggravated felony, and then examine whether the deportation ground applies. The respondent does not contest that his crime fits the

definition of an aggravated felony. However, he argues that he is not

deportable under the second prong of the test in Matter of A-A-, supra, due

to section 7344(b) of the ADAA.

In his supplemental brief, the respondent maintains that the temporal

limitation set forth in section 7344(b) of the ADAA has not been changed

by section 602 of the 1990 Act. The respondent emphasizes the absence of

any Board or judicial precedents which recognize that section 7344(b) has

been repealed. He also points to the existence of post-1990 decisions which

cite to section 7344(b) as an example of Congress placing a prospective limitation on a ground of deportability. See, e.g., Matter of A-A-, supra. 

In response to the Board’s question about the impact of section 602(c)

of the 1990 Act, the respondent places importance on the facts that section

602(c) is called a “savings provision” and that the first sentence of section

602(c) specifically refers to former section 241(a) of the Act (1988) as set

out prior to passage of the 1990 Act. The respondent also reads the term

“such section” in the second sentence of section 602(c) to refer to that same

pre-1990 Act version of section 241 of the Act. The respondent argues that

this, in turn, would preserve section 7344(b) and its time limitations and

would protect the respondent from deportation. 

The respondent also argues that the Board is not bound by Matter of

Chow, 20 I&N Dec. 647 (BIA 1993), aff’d sub nom. Kin Sang Chow, 12

F.3d 34 (5th Cir. 1993) (affirming Board without reference to section

602(c)). In Matter of Chow, the Board found that the temporal limitations

set out in the ADAA for the firearms deportability ground were eliminated

by the 1990 Act. The respondent argues that Matter of Chow does not dictate a result in the instant case because the 1990 Act substantively amended the firearms deportation ground, while the aggravated felony ground was

simply renumbered. The respondent does not find any circuit court decision

which would command a result different from that which he is advocating.

B. The Position of AILA

The supplemental brief provided by the American Immigration

Lawyers Association (“AILA”) “fully adopts” the respondent’s arguments.

AILA also points out that it is important to recognize that, when enacting

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Interim Decision #3370

the ADAA, Congress made a policy determination to protect long-term residents from convictions which predated that 1988 law. 

This is reflected by provisions such as section 7344(b) of the ADAA. It

is argued that absent a clear expression of congressional intent, the Board

should not reject the ADAA provisions. AILA also finds it significant that

the application of section 602(c) of the 1990 Act to the aggravated felony

deportation ground is notably absent from Board and Federal court decisions and that the most recent changes to the immigration law do not

address the 1988 temporal limitation. 

C. The Position of the Service

The Service maintains that upon the passage of the 1990 Act, the 1988

ADAA temporal limitation on the aggravated felony ground was eliminated. The Service would read “such section” in the second sentence of section

602(c) as referring to the version of section 241(a) of the Act that is set out

in the 1990 Act. Therefore, section 602(c) would support an alien’s deportability for a conviction predating November 18, 1988. 

The exceptions would be if an alien’s crime did not fit the definition of

an aggravated felony, or if the alien was issued an Order to Show Cause

before March 1, 1991. The Service asserts that the Board should also find

guidance from Federal circuit court decisions which have addressed section

602(c) in the context of the firearms deportation ground.5

V. THE DECISION OF THE BOARD

As stated earlier, we conclude that an alien placed in proceedings on or

after March 1, 1991, is deportable by virtue of a conviction that falls within the definition of an aggravated felony, without regard to the prospective

limitation originally enacted in the ADAA as part of the aggravated felony

ground of deportability. We reach this conclusion for several reasons. 

First, we have conducted a careful study of section 602 of the 1990 Act,

and take guidance from the statute as a whole. Second, we consider the content of the second sentence of section 602(c) of the Act, and its possible

interpretations. We have not found the respondent’s argument in this area to

be persuasive. We also examine the statutory precursor to section 602(c) of

the 1990 Act, which is former section 241(d) of the Act, 8 U.S.C. § 1251(d)

(1988). Finally, we consider the existing judicial precedent which has inter370

5

A February 22, 1991, memorandum from the Service, contained in the record, does not

discuss section 602(c) and ultimately provides no guidance on the issue before us.
Interim Decision #3370

preted section 602(c) in the context of the firearms ground. We are especially influenced by Lopez-Amaro v. INS, 25 F.3d 986 (11th Cir. 1994), cert.

denied, 513 U.S. 1146 (1995), a decision issued by the controlling Federal

circuit in this case. We first discuss section 602 of the 1990 Act.

A. Section 602 of the 1990 Act

As previously mentioned, section 602(a) of the 1990 Act completely

revised the deportation grounds that were found in section 241(a) of the

Act. 

The revised deportation grounds were reorganized into categories that

grouped similar deportation grounds. For example, the criminal offenses

were listed under section 241(a)(2) by the 1990 Act. The aggravated felony

ground was accordingly placed at section 241(a)(2)(A)(iii) by the 1990 Act.

The wording of the renumbered aggravated felony ground was identical to

the prior ground at section 241(a)(4)(B) of the Act (1988). However, other

deportation grounds were revised in content. See, e.g., section 241(a)(2)(C)

of the Act (1990) (including more firearms crimes than had been set out in

the previous ground at former section 241(a)(14) of the Act (1988)). 

Section 602(a) of the 1990 Act was therefore intended to replace former section 241(a) (1988) in its entirety. As stated by the House-Senate

Conference Committee:

The conference substitute provides for a comprehensive revision of all the existing

grounds for exclusion and deportation, including the repeal of outmoded grounds, the

expansion of waivers for certain grounds, the substantial revision of security and foreign policy grounds, and the consolidation of related grounds in order to make the law

more rational and easy to understand.

See H.R. Conf. Rep. No. 101-955, at 119, 128 (1990), reprinted in 1990

U.S.C.C.A.N. 6784, 6793.6

B. The Reading of Section 602(c) of the 1990 Act

Section 602(c) of the 1990 Act contains two sentences under the title

“savings clause.” The parties agree that the first sentence of section 602(c)

preserves the Service’s ability to charge certain aliens under deportation

grounds as they existed before the 1990 Act. That first sentence directs that

certain aliens will remain deportable if they were deportable under various

paragraphs “of section 241(a) of the Immigration and Nationality Act, as in

effect before the date of the enactment of this Act.” 1990 Act § 602(c), It is

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6

Section 602(b) of the 1990 Act, 104 Stat. at 5081, was called ”“Conforming

Amendments to Section 241” and contained specific amendments and repeals.
Interim Decision #3370

the second sentence of section 602(c) which is the subject of dispute. It states:

Except as otherwise specifically provided in such section or subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in

subsection (a) thereof notwithstanding that (1) any such alien entered the United States

before the date of the enactment of this Act, or (2) the facts, by reason of which an

alien is described in such subsection, occurred before the date of the enactment of this

Act.

1990 Act § 602(c).

We acknowledge from the outset that the second sentence of section

602(c) is difficult to decipher, even after considerable examination. In the

end, we find it to be an ambiguous provision, which is capable of different

readings, and we principally derive its meaning by looking for guidance

beyond its literal language. A number of factors, however, point to the construction of the phrase “such section” that we adopt, namely, that “such section” refers to section 241. We do not accept, however, that “such section”

was meant to reference the entire limiting clause of the prior sentence so as

to refer to the version of section 241(a) “as in effect before the date of the

enactment” of the 1990 Act. 

We read the provision in question as mandating that, except as otherwise provided in section 241, as amended in 1990, an alien is deportable for

an enumerated ground despite the date of entry or the date of the underlying facts which establish deportability. The other limitation is that the Order

to Show Cause must be issued on or after March 1, 1991, as is specified in

section 602(d), in order for the 1990 grounds to apply.

Our reading comports with our understanding that the purpose of section 602 of the 1990 Act was to completely revise the deportation grounds.

With this in mind, we find it difficult to believe that Congress intended to

revise the deportation grounds, but still have the former Act ultimately

determine deportability. In other words, it makes no sense to enact a whole

new provision, yet keep the former version perpetually intact.

Furthermore, our reading recognizes that Congress did intend for certain deportation grounds to be subject to time-based or other limitations,

and that the limitations were set out in the text of the new section 241 itself.

See, e.g., section 241(a)(2)(A)(i)(I) of the Act (1990) (permitting the deportation of an alien who commits a crime involving moral turpitude within 5

years of entry); section 241(c) of the Act (1990) (providing limitations on

the deportability of certain special immigrants); see also sections

241(a)(1)(E), (F), (G), (5) of the Act (1990). These are the provisions

referred to by the “except as otherwise specifically provided” language.

We also reach our conclusion by studying alternative readings of section 602(c), and finding that they do not work as well. Specifically, we do

not agree with the respondent’s position that the second sentence of section

602(c) ultimately preserves former deportation grounds, which would

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include the temporal limitations found in the 1988 ADAA.

We first address the respondent’s assertion that the phrase “otherwise

specifically provided” refers to the prior section 241 of the Act (1988)

because the first sentence of section 602(c) refers to section 241(a) of the

Act, “as in effect before the date of the enactment of this Act.” This reference is appropriate in the first sentence, as its language clearly serves to preserve the deportability of aliens under deportation grounds as they previously existed. However, we do not agree that this limiting clause of the first

sentence of 602(c) provides direction for how to read the phrase “such section” in the second sentence of section 602(c). This is because the two sentences of section 602(c) are separate provisions which cover different territory. The fact that they were placed under the same title does not compel the

conclusion that they are intertwined in all respects. Furthermore, the title of

section 602(c) as a “savings clause” does not mean that we must read the

disputed statutory language in a manner that to us seems contrary to the

overall thrust of the 1990 legislation. 

Our reading of the second sentence of section 602(c) as a separate sentence, and not as a traditional savings clause, is buttressed by examination

of former section 241(d) of the Act (1988),7 which served to establish the

retroactive application of specified deportation grounds. See Mulcahey v.

Catalanotte, 353 U.S. 692 (1957); Lehmann v. Carson, 353 U.S. 685

(1957), It stated:

Except as otherwise specifically provided in this section [241], the provisions of this

section shall be applicable to all aliens belonging to any of the classes enumerated in

subsection (a), notwithstanding (1) that any such alien entered the United States prior

to the date of enactment of this Act, or (2) that the facts, by reason of which any such

alien belongs to any of the classes enumerated in subsection (a), occurred prior to the

date of enactment of this Act.

Section 241(d) of the Act (1988).

The language of former section 241(d) parallels the second sentence of

section 602(c) and is identical in most respects. The subsequent repeal of

section 241(d) by the Miscellaneous and Technical Amendments of 1991,

Pub. L. No. 102-232, 105 Stat. 1733 (“Technical Amendments Act”), confirms for us that the second sentence of section 602(c) is not intended to

serve as a savings clause, but rather was intended to serve the same function as former section 241(d).

Finally, we reject the respondent’s position because it defies common

sense. The respondent would have us read the disputed sentence as stating

373

7

Section 241(d) was repealed by section 307(k) of the Miscellaneous and Technical

Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733,

1756 (“Technical Amendments Act”) (effective as if included in the 1990 Act). 
Interim Decision #3370

that an alien is deportable except as otherwise provided in the 1988 version

of section 241 of the Act. The result of this would be to have a completely

revised set of deportation grounds, as set out in section 602(a), but to

nonetheless allow the prior version of the deportation grounds at section

241 to remain intact, and to set limitations for the deportability of aliens.

This reading does not make sense in light of Congress’ wholesale revision

of section 241(a) of the Act in 1990. Indeed, there would be no point in

enacting a new statutory scheme if the intent was to keep the former version

of the law in control whenever there was a difference between the old and

the new. We cannot conclude that this was the intention of Congress.8

We reject the respondent’s or any other reading of the second sentence

of section 602(c) that would essentially invalidate the comprehensive

changes made to section 241(a) by the 1990 Act.9

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8

For example, when Congress revised the alien smuggling deportation ground in the

1990 Act and the 1991 Technical Amendments Act, it clearly recognized that its changes

would reach conduct predating the passage of the 1990 Act. See section 241(a)(13) of the Act

(1988) (including a “for gain” requirement which was deleted by the 1990 Act); section

241(a)(1)(E) of the Act (1990); see also section 241(a)(1)(E)(ii) (including specific language

addressing conduct before May 5, 1988, inserted by section 307(h)(4) of 1991 Technical

Amendments Act, 105 Stat. at 1755). Any reading of section 602(c) which preserved the old

law (including its “for gain” requirement) in alien smuggling cases would be in direct conflict with the language of section 241(a)(1)(E), as revised by the 1990 Act and the Technical

Amendments Act. 9

Board Member Guendelsberger’s concurring and dissenting opinion fails to address the

historical and logical reasons we have identified for concluding that the two sentences in section 602(c) are independent. It argues instead for a basic grammatical reading of the opening

“such section” clause of the sentence. But, it fails to explain why a grammatical reading must

include the limiting clause. Indeed, our reading is consistent with a grammatical reading, but

one in which “such section” only refers to section 241, and not to the further limiting clause

of the prior sentence.

Furthermore, in his dissent, Board Member Guendelsberger does not dispute that reading the opening clause to be a condition on the entire sentence would generate an absurd

result, if “such section” were meant to be a reference to the pre-1990 version of the grounds

for deportation. That reading would have the old law control whenever it differs from the new

law, making enactment of the new provisions pointless. In an attempt to avoid this absurdity,

the dissent “reorders” the structure of the second sentence of section 602(c), and contends

that the opening clause only modifies, or “operates as an exception” to, the final “notwithstanding clause” of the sentence. This effort fails in a number of respects.

At the outset, the location of the opening clause within the sentence points to its application to the sentence as a whole. The opening clause, moreover, includes a reference to subsection (d) as one of its “exceptions.” Importantly, subsection (d) did not operate “as an

exception to the notwithstanding clause” alone. Rather, it operated as an exception to the new

law in its entirety, by postponing the implementation of all aspects of the revised deportation

grounds until March 1, 1991. In view of the substance of subsection (d), Congress could not

logically have included a reference to it in the first clause of the sentence in question, while

at the same time intending it to impact only on the scope or operation of the “notwithstanding” clause.
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C. Judicial Interpretation of Section 602(c)

We find further support in our interpretation of section 602(c) in the

context of the firearms deportation ground. The language of the second sentence of section 602(c) of the 1990 Act has been addressed by the Federal

courts. In Lopez-Amaro v. INS, supra, the United States Court of Appeals

for the Eleventh Circuit addressed the question of whether the 1990 version

of the firearms deportation ground applied retroactively to the respondent’s

1983 conviction.10 The court held that the language of section 241(a)(2)(C)

of the Act (1990) applied to an alien convicted of a specified firearm crime

at any time after entry. Furthermore, and most significantly, the court stated that “Congress explicitly intended this section to apply to aliens

‘notwithstanding that . . . the facts, by reason of which the alien [is

deportable], occurred before the date of the enactment of this Act.’” Id. at

988 (quoting 1990 Act § 602(c)), The court relied on section 602(c) to support this statement. 

Therefore, the court recognized that section 602(c) of the 1990 Act

stood to override the 1988 ADAA limitation for the firearms ground.11

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Further, the dissent reads its restructured sentence to incorporate pre-1990 restrictions

related to “the date of occurrence of events upon which deportability is based.” It does not,

however, explain how its own restructured statute may be construed to carry forward only

such limitations as the effective date rule in the ADAA. The restructured statute would provide for the current deportability of an alien “notwithstanding that . . . (2) the facts” which

make for deportability “occurred before the date of the enactment” of the 1990 Act, “except

as otherwise specifically provided in” pre-1990 section 241. Not all the “facts” which give

rise to current deportability, but would not have given rise to deportability under the pre-1990

law, are effective date limitations. Indeed, as we explained in footnote 8, an alien smuggler

became deportable under the 1990 Act even if he or she acted without receiving any financial

“gain.” But the “for gain” requirement was a “fact” that was “otherwise specifically provided” for by the pre-1990 version of section 241 in order to establish deportability. The dissent

simply fails to explain how its restructured statute will permit the selective importation of

some portions of pre-1990 law, but not others, when the facts giving rise to deportability

would not have led to deportability under prior law. And, without this selective importation,

even the dissent’s reordered statute has the effect of overriding part “(2)” of the “notwithstanding” clause, by preserving all aspects of the old law in cases where the facts leading to

deportability occurred prior to the enactment of the 1990 Act. 10The background is that section 7348(a) of the 1988 ADAA, 102 Stat. at 4473, had

expanded the types of firearm crimes that would be deportable offenses. Section 7348(b) of

the ADAA stated that “[t]he amendment made by subsection (a) shall apply to any alien convicted, on or after the date of the enactment of this Act [November 18, 1988] . . . .” In 1990,

Congress further expanded the types of crimes that would render an alien deportable for a

firearms violation, and redesignated the ground as section 241(a)(2)(C) of the Act. See 1990

Act § 602(a). 11The only date limitation acknowledged by the court was that the Order to Show Cause

must have been issued on or after March 1, 1991, in order to have the 1990 deportation

grounds apply. See 1990 Act § 602(d).
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Other courts have used this analysis in discussing the issue of when the

firearms ground, as amended in 1990, can be applied to an earlier conviction. See, e.g., Hamama v. INS, 78 F.3d 233, 236 (6th Cir. 1996) (finding

that the application of section 241(a)(2)(C) of the Act (1990) to past crimes

reflected Congress’ intent, and was in accordance with due process restrictions on retroactivity; also citing section 602(c)); United States v.

Yacoubian, 24 F.3d 1 (9th Cir. 1994) (recognizing that section 602(c) of the

1990 Act supported the deportability of an alien who was convicted for a

firearms offense before the crime was added to the Act in 1990).

The court in Lopez-Amaro v. INS, supra, did not discuss the aggravated felony deportation ground.12 However, the court’s analysis applies equally and supports our holding that section 602(c) also overrides the temporal

limitation on the aggravated felony ground which was set forth in the

ADAA. This is because the statutory provisions in the ADAA which dealt

with the aggravated felony and firearms grounds are identical in that they

limited each revised ground to convictions on or after November 18, 1988.

See ADAA §§ 7344(b), 7348(b). Therefore, it is logical to find that section

602(c) would equally eliminate the 1988 temporal limitations for the

firearms and the aggravated felony grounds. To conclude otherwise would

require a basis for distinguishing the application of section 602(c) to the different deportation grounds, which is not apparent upon reading either the

1988 or 1990 statutes.

The respondent has argued that the effect of section 602(c) on the

firearms ground can be distinguished from its effect on the aggravated

felony ground because the changes to the firearm ground involved “substantive” changes, while the aggravated felony ground was merely renumbered. However, there is no support for making this distinction under any

consistent reading of section 602(c). There is nothing in the language of

section 602(c) which classifies the renumbered deportation ground into separate categories. Indeed, the respondent’s argument would require two different readings of section 602(c) of the Act. That is, one reading which

referred to former section 241 of the Act (1988) (in place of “such section”),

and one which inserted the new 1990 version of section 241 in that position.

There is no authority for reading the statute in different ways, as is proposed

by the respondent. We are therefore not convinced by this argument.13

376

12Neither did the other circuit court cases which have been cited for providing section

602(c) analysis include such discussion. 13Furthermore, it is not clear that the 1990 changes to the aggravated felony and firearms

grounds are distinguishable, as argued by the respondent. Both involved the addition of new

crimes. However, the expansion of the aggravated felony ground was done through the definitional section found at section 101(a)(43) of the Act. The new firearms crimes were included directly within the deportation ground. Therefore, both deportation grounds were significantly changed, but it was just done through a different scheme.
Interim Decision #3370

D. Final Arguments

The respondent also relies on our decision in Matter of A-A-, supra, and

specifically on the discussion of section 7344(b) of the ADAA in that case.

See id. at 497, The reference there, however, is for the illustrative purpose

of showing what Congress does when it wants to set a prospective limitation. See also Matter of Gomez-Giraldo, 20 I&N Dec. 957, 959 (BIA 1995).

The case does not discuss section 602(c), or find that it cannot be held as a

basis for finding an aggravated felon deportable for a pre-1988 conviction.

The case therefore does not present an obstacle to our decision today. We

find this similarly true for Federal circuit court cases which cite to section

7344(b) of the ADAA. See, e.g., Scheidemann v. INS, 83 F.3d 1517 (3d Cir.

1996); Hamama v. INS, supra, at 236.

Our ruling today, moreover, is in conformance with the general principles set out in Matter of A-A-, supra. In Matter of A-A-, we emphasized the

importance of separately analyzing (1) when the definition applies to an

alien’s crime, and (2) when an aggravated felony can be used for deportability and as a bar to relief. In regard to the nature of his conviction, the

respondent conceded that his crime fit the definition of an aggravated

felony.14 Therefore, this prong of the test is satisfied. We also fulfill the second part of the test, because we look at the content of the deportation

ground itself to determine whether it applies to the respondent. Our examination tells us that the respondent’s conviction for an aggravated felony

does support his deportability.

Finally, as pointed out by the respondent, the Board failed to mention

section 602(c) of the Act in Matter of Chow, supra, dealing with the 1990

Act changes to the firearms ground. Indeed, we used a completely different

rationale, which is not necessary upon recognition of the effect of section

602(c) of the Act. We therefore conclude that, while Matter of Chow affords

us little guidance, it does not provide a barrier to the holding we set forth in

the instant decision.

377

14The respondent’s conviction fit the aggravated felony definition under the original definition set out at section 101(a)(43) of the Act. Further, under the IIRIRA, the aggravated

felony definition is not limited by the date of a conviction. See supra note 4; see also 8 C.F.R.

§ 1.1(t) (1998) (stating that the aggravated felony definition applies to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996). 

The Immigration Judge appeared to base his deportability finding on the aforementioned

IIRIRA provisions. However, these provisions are limited to the definition, and the specific

deportation ground involved needed to be further examined before deportability could be

upheld. 
Interim Decision #3370

VI. CONCLUSION

In sum, we find that section 602 of the 1990 Act dictates that any alien

who has been convicted of a crime defined as an aggravated felony, and who

was placed in deportation proceedings on or after March 1, 1991, is

deportable regardless of when the conviction occurred. The respondent is

therefore deportable as charged. He has not established any eligibility for

relief from deportation. The respondent’s appeal will accordingly be dismissed. Appropriate orders will be entered.

ORDER: The motion to reconsider is granted, and the July 7, 1997,

decision of the Board is vacated.

FURTHER ORDER: The respondent’s appeal is dismissed. 

CONCURRING AND DISSENTING OPINION: John Guendelsberger,

Board Member, in which Paul W. Schmidt, Chairman, joined

I concur in the result reached by the majority decision because this

case, which arises in the jurisdiction of the United States Court of Appeals

for the Eleventh Circuit, is controlled by the holding in Lopez-Amaro v. INS,

25 F.3d 986 (11th Cir. 1994), cert. denied, 513 U.S. 1146 (1995). 

Had this case arisen in a jurisdiction in which we were not bound by

existing circuit law, however, I would find that the savings clause in the second sentence of section 602(c) of the Immigration and Nationality Act of

1990, Pub. L. No. 101-649, 104 Stat. 4978, 5081 (“1990 Act”), refers to and

saves the limitation on deportability contained in section 7344(b) of the

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4471,

(“ADAA”), for convictions occurring prior to November 18, 1988. I write

separately, therefore, because I disagree with that portion of the majority

decision regarding the interpretation of the savings provision in the second

sentence of section 602(c) of the 1990 Act. 

I. THE BOARD IS BOUND BY CONTROLLING 

CIRCUIT LAW IN THIS CASE

In Lopez-Amaro v. INS, supra, the Eleventh Circuit addressed the effect

of section 602(c) of the 1990 Act upon section 7348(b) of the ADAA, 102

Stat. at 4473. Section 7348(b) provided that the deportation ground for conviction of possession of a firearm applied only to convictions occurring “on

or after the date of the enactment of this Act [November 18, 1988].” The

court found that the 1990 amendments replaced the former deportation

ground for firearms convictions in section 241(a)(14), 8 U.S.C. 1251(a)(14)

(1988), with the newly enacted section 241(a)(2)(C), 8 U.S.C.

1251(a)(2)(C) (Supp. II 1990), and held that “the effective date restrictions

378
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found in the old statute no longer apply.” Id. at 988 (footnote omitted). 

Although the court in Lopez-Amaro did not directly address the aggravated felony ground for deportation, the temporal limitation in section

7348(b) was phrased in nearly identical terms to section 7344(b) under consideration in the instant case. I do not find a meaningful basis for distinguishing the issue presented in Lopez-Amaro in regard to firearms convictions and the issue before us involving the aggravated felony ground for

deportation. Therefore, I find that we are bound by the decision in LopezAmaro, and the fact that the respondent’s conviction occurred prior to

November 18, 1988, does not prevent him from being deported pursuant to

section 241(a)(2)(A)(iii) of the Act (1990).

As discussed below, I find that the respondent and amicus curiae have

presented compelling arguments in this case that section 602(c) of the 1990

Act is a savings provision which operates to save the temporal restriction on

deportation contained in section 7344(b) of the ADAA. I would therefore

limit our holding in this case to the Eleventh Circuit and wait until the issue

arises in another circuit before determining whether to extend the rule

nationwide.

II. SECTION 602(c) OF THE 1990 ACT SAVES 

SECTION 7344(b) OF THE ADAA. 

At the time the respondent was convicted in 1987, there was no aggravated felony ground for deportation. This ground was enacted in the AntiDrug Abuse Act of 1988. Section 7344(b) of this Act specifically limited

deportability under that ground to convictions for aggravated felonies which

occurred on or after November 18, 1988. The issue presented in this case is

whether section 602(c) of the 1990 Act saved or repealed section 7344(b)

of the ADAA. 

Section 602(c) of the 1990 Act is entitled “SAVINGS PROVISIONS”

and consists of two sentences. The first sentence provides:

Notwithstanding the amendments made by this section, any alien who was deportable

because of a conviction (before the date of the enactment of this Act) of an offense

referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration

and Nationality Act, as in effect before the date of the enactment of this Act, shall be

considered to remain so deportable. 

The purpose of this sentence is to make clear that persons convicted

prior to the enactment date of offenses described in four designated paragraphs of the pre-1990 version of section 241 will remain deportable without regard to the 1990 amendments. These paragraphs, which refer to convictions under the Alien Registration Act and a number of other crimes, are

“saved” insofar as convictions which occurred prior to the enactment of the

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1990 law are concerned.

It is the second sentence of section 602(c) which bears on resolution of

the issue presented in this case. This sentence provides:

Except as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described

in subsection (a) thereof notwithstanding that (1) any such alien entered the United

States before the date of the enactment of this Act, or (2) the facts, by reason of which

an alien is described in such subsection, occurred before the date of the enactment of

this Act.

1990 Act § 602(c)(emphasis added). Putting aside the introductory exception clause for a moment, this sentence is a directive that the deportation

grounds of section 241(a), as amended by the 1990 Act, will apply without

regard to whether the alien’s entry or facts giving rise to deportability

occurred prior to the enactment date of the 1990 Act. 

The exception clause, however, then overrides this general rule as to

timing of entry or events on which deportability is based when “specifically provided in such section and subsection (d).” 1990 Act § 602(c).

Turning first to subsection (d) of section 602, this subsection contains

an effective date provision for the 1990 Act which states that “[t]he amendments made by this section, and by section 603(b) of this Act, shall not

apply to deportation proceedings for which notice has been provided to the

alien before March 1, 1991.” 1990 Act § 602(d), 104 Stat. at 5082. Thus,

for proceedings already underway before March 1, 1991, the pre-1990 version of the Act remains applicable.

It is the meaning of the other exception in the introductory clause to

section 602(c) which is critical to the outcome in the instant case.1 The

meaning of this provision, as the majority recognizes, turns upon the interpretation of the term “such section” in that clause. The majority reads “such

section” as a reference to section 241, as amended by the 1990 Act. Such a

reading violates basic rules of grammar and fundamental principles of

statutory construction. The majority would rewrite the exception clause of

the second sentence of section 602(c) to reach a result it believes is consistent with the “overall thrust” of the statute. I do not believe that we have

380

1

Until this case, neither the Board nor the courts that have considered the issue appear to

have addressed the meaning of the introductory clause in the second sentence of section

602(c), The Eleventh Circuit, in reaching its holding in Lopez-Amaro, referred only to the

“notwithstanding” clause of the second sentence of section 602(c), It is not clear from the

decision in Lopez-Amaro whether the arguments presented by the respondent and amicus curiae in this case as to the effect of the exception clause in the second sentence were presented

to or considered by the Eleventh Circuit in that case. Whether these arguments were presented or not, we remain bound by the holding in Lopez-Amaro.
Interim Decision #3370

authority to reconstruct the statutory language in this way. 

Basic rules of grammar indicate that the term “such section,” as used in

the introductory clause to the second sentence of section 602(c) refers to

section 241 as it existed prior to the amendments of the 1990 Act. First, the

sentence itself uses “such section” in juxtaposition with “such section, as

amended by this section [section 602].” Had Congress intended the second

sentence of section 602(c) to have the meaning proposed by the majority, it

would not have juxtaposed “such section” with “the provisions of such section as amended by this section.” It could have simply stated that the

amended version of section 241 would apply without regard to entry or

other factual events before the date of enactment, except as otherwise

specifically provided in the amended version of section 241 or in subsection

(d).2 Although the heading of section 602(c) is “SAVINGS PROVISIONS,”

the majority acknowledges that it would read “such section” in the introductory clause to prevent it from saving any provision in the pre-1990 section 241. 

Additionally, the meaning of “such section” is informed by reference to

the last antecedent use of the term “section.”3 In this case, the immediately

preceding reference to “section,” is to “section 241(a) of the Immigration

and Nationality Act, as in effect before the date of the enactment of this

Act” (in the first sentence of section 602(c)). Thus the natural and grammatical reading of “such section” is that it refers to the pre-1990 version of

section 241.

The majority posits that reading “such section” as a reference to the

pre-1990 version of section 241 would lead to an absurd result because it

would “keep the former version of the law in control whenever there was a

difference between the old and the new.” But this conclusion is based on

the faulty premise that the exception clause operates independently of the

notwithstanding clause. What the majority fails to recognize is that the

introductory clause operates as an exception to the notwithstanding clause,

and its operation is governed by the scope of the notwithstanding clause. 

The impact of the exception clause is clearer if the sentence is

reordered so that the exception clause is placed after the notwithstanding

clause, upon which it operates, as follows:

381

2

The provision would have been formulated as follows: “Except as otherwise specifically provided in such section, as amended by this section, and subsection (d), the provisions

of such section, as amended, shall apply to all aliens described in subsection (a) thereof

notwithstanding that . . . .” 3

“‘Such’ represents the object as already particularized in terms which are not mentioned, and is a descriptive and relative word, referring to the last antecedent.” Blacks’ Law

Dictionary 1284 (5th ed. 1979). 
Interim Decision #3370

The provisions of such section [pre-1990 section 241], as amended by this section

[section 602], shall apply to all aliens described in subsection (a) thereof [section

241(a) as amended by section 602(a)]

notwithstanding that (1) any such alien entered the United States before the date of the

enactment of this Act, or (2) the facts, by reason of which an alien is described in such

subsection, occurred before the date of the enactment of this Act

except as otherwise specifically provided in such section [pre-1990 section 241] and

subsection (d).

When the notwithstanding clause is considered in tandem with the exception clause, as it must be, it becomes apparent that the exception clause does

not save every difference between the grounds for deportation in the pre1990 and post-1990 versions of the Act. What it does save are those specific references to limitations on entry in the pre-1990 version of section 241

which restrict deportability based upon (1) the date of entry or (2) the date

of occurrence of events upon which deportation is based. One such reference in the pre-1990 version of section 241 is the mandate of section

7344(b) of ADAA which specifically limits deportation for aggravated

felony convictions to “any alien who has been convicted, on or after

[November 18, 1988].”

Even if, as the majority argues, there is some ambiguity in regard to

whether section 602(c) of the 1990 Act saves section 7344(b) of the ADAA,

doubts in this regard should be resolved in favor of the alien. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (noting the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor

of the alien”); INS v. Errico, 385 U.S. 214, 225 (1966) (indicating that

doubts as to the correct construction of the statute should be resolved in the

alien’s favor); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (stating that

any doubts regarding the construction of the Act are to be resolved in the

alien’s favor); Matter of Tiwari, 19 I&N Dec. 875 (BIA 1989).

Section 7344(b) of the ADAA specifically relates to the date of occurrence of facts upon which deportation for conviction as an aggravated

felony is based. Notably, it precludes deportation unless the alien was “convicted, on or after [November 18, 1988].” In the absence of controlling circuit law, I would find that this provision is saved by the second sentence of

section 602(c) of the 1990 Act.

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

The question presented is whether a conviction that occurred before

November 18, 1988 can be relied on to sustain a charge of deportability for

an aggravated felony conviction under a statutory section—section

241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4) (1988), later recodified in

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1990 as section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)

(Supp. II 1990)—that no longer exists except in cases initiated prior to April

1, 1997? In answering this question in the affirmative, the majority dramatically alters the Board’s longstanding interpretation of a 10-year-old,

now arguably defunct, law relating to the date after which an alien convicted of an aggravated felony will be considered deportable. 

We recognized previously that a conviction for an aggravated felony

incurred deportability only when the conviction occurred on or after

November 18, 1988. Matter of A-A-, 20 I&N Dec. 492, 497 (BIA 1992)

(contrasting the lack of any temporal limitation in the 1990 amendments

restricting eligibility to apply for a waiver under section 212(c) of the Act,

8 U.S.C. § 1182(c) (Supp. II 1990), with the existing temporal limitation on

the aggravated felony ground of deportability); see also Matter of Melo, 21

I&N Dec. 883, at 885 (BIA 1997) (distinguishing the effect of a 1987 and

a 1989 aggravated felony conviction in a custody determination); Matter of

Gomez-Giraldo, 20 I&N Dec. 957 (BIA 1994) (affirming the distinctions

between deportability and waiver eligibility made in Matter of A-A-, supra).

The majority apparently is unwilling either to admit the practical consequences of our new ruling, which essentially reverses the position we have

taken for 8 years, or to acknowledge the conflicting analysis (or the lack of

one) underlying our prior rulings. Ignoring the proverbial elephant in the

bathtub, notwithstanding the overwhelming smell of peanuts, the majority

insists that, really, there is no need to distinguish our prior precedent

because we never addressed this precise aspect of the question before.

If that were not enough to give one pause in accepting the majority’s

new analysis as a reasoned and permissible one, the substantive bases on

which the majority seeks to rationalize a contradictory interpretation of a

now-superseded statutory change made 8 years ago are questionable. We

not only failed to recognize the change that the majority now insists took

place, or to issue any precedent to that effect, but I venture to guess that we

issued numerous decisions invoking the interpretation we today overrule or

modify, sub silentio. As discussed below, I imagine that countless deportation proceedings were not initiated by the Immigration and Naturalization

Service because of its similar interpretation. This now-rejected interpretation also was adopted consistently by the circuit courts that addressed the

question, in large part based on deference to the Board’s reading of the

statute as a reasoned one. 

The majority now proposes to read an ambiguous savings clause provision of an 8-year-old legislative enactment in a way that is diametrically

opposed to the interpretation that has been followed regularly, without providing any substantial reason for such a change. Furthermore, although I

agree generally with the interpretation of the relevant statutory language

advanced by my concurring and dissenting colleagues, Guendelsberger and

Schmidt, I disagree that the decisions of the United States Court of Appeals

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Interim Decision #3370

for the Eleventh Circuit compel acquiescence to the majority’s post hoc

interpretation. Consequently, I dissent from the majority opinion, and concur, but only in part, with the concurring and dissenting opinion, for the reasons discussed below.

I. BACKGROUND UNDERLYING THE ISSUE PRESENTED

Providing the reasons for the position I take in this dissenting opinion

requires placing the aggravated felony issue presented in historical context.1

The foundation for this context is that, prior to November 18, 1988, the

Immigration and Nationality Act included three principal catch-all categories of immigration violations related to crimes that would trigger excludability or deportability. See, e.g., Immigration and Nationality Act of 1952,

ch. 477, 66 Stat. 163, codified as 8 U.S.C. § 1101, et seq. (1952). These

criminal offense categories, which applied differently in the exclusion and

deportation context, related to “crimes involving moral turpitude,” “drug”

offenses (later referred to as “controlled substance” offenses), and certain

firearms convictions.

Section 7342 of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

102 Stat. 4181, 4469-70 (enacted Nov. 18, 1988) (“ADAA”), introduced a

new classification of convictions in addition to these three principal ones:

the aggravated felony. The definition of the term “aggravated felony,” later

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

has been understood consistently to be distinct from its applicability to particular statutory provisions that trigger certain consequences, or “disabilities,” under the immigration law. See ADAA § 7342; Matter of A-A, supra,

at 499; Matter of Reyes, 20 I&N Dec. 789 (BIA 1994) (examining the limitations imposed by the individual terms of applicability that attached to the

separate provisions involving voluntary departure, suspension of deportation, and good moral character); see also Amended Definition of

Aggravated Felony, Op. Off. General Counsel 96-16, (Dec. 3, 1996) (citing

Matter of A-A-, supra, as the “leading case” for resolving the two “related

but not identical questions” of whether a conviction is for an aggravated

384

1

The origins of the “aggravated felony” concept and the course it has taken since its

introduction into the Immigration and Nationality Act 10 years ago by the Anti-Drug Abuse

Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (“ADAA”), in terms of its effect on individual immigrants, their families, and United States immigration policy, is a subject well

worth far greater scrutiny than it is possible to undertake here. For purposes of this dissent,

however, I must presume some understanding of the origins of our 100-year-old policy of

exclusion and expulsion of “undesirables” generally, and during the past 10 years in relation

to the aggravated felony category. See Kesselbrenner and Rosenberg, Immigration Law and

Crimes (West Law Group 1998).
Interim Decision #3370

felony and what consequences result from that conviction).

In Matter of A-A, supra, the Board addressed the applicability of section 101(a)(43) of the Act, which lacked a specifically articulated effective

date and had no temporal provision attached to it, to ineligibility for a waiver under section 212(c) in the case of a lawful permanent resident who had

served more than 5 years’ imprisonment for an aggravated felony conviction. The Board read silence on Congress’ part in relation to the definitional section and certain other subsections relating to aggravated felony convictions as indicating applicability was unlimited and applied to convictions

occurring before the date of the enactment creating the category. See id. at

497 (indicating that when Congress wished to limit the reach of a statute to

a prospective application it did so expressly); see also Matter of GomezGiraldo, supra. We emphasized that, “[a]ccordingly, where Congress

attaches disabilities to an alien convicted of an aggravated felony, those disabling provisions are properly read as including all such convictions,

regardless of when conviction occurs, unless Congress explicitly provides

otherwise.” Matter of A-A-, supra, at 499 (emphasis added).2

The Board acknowledged that many of the originally enacted ADAA

provisions pertaining to the consequences or “disabilities” resulting from

conviction of an “aggravated felony” were limited by implicit or explicit

temporal provisions. Matter of A-A-, supra, at 495-98 (relying on the

amendments made by the ADAA as a basis on which to construe the effect

of the 1990 change to section 212(c) of the Act). We recognized that express

language in some sections of the ADAA explicitly restricted application of

the provision to convictions occurring “on or after” November 18, 1988.

Matter of A-A-, supra, at 499 n.15;3 see also Aggravated Felony:

385

2

Although not necessary to resolve for purposes of this opinion, the overbroad declaration that congressional silence supports an essentially retroactive application of a statutory

provision appears to me to stand the accepted retroactivity doctrine on its head. See Hughes

Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997); see also Lindh v. Murphy,

521 U.S. 320 (1997); Landgraf v. USI Film Products, 511 U.S. 244 (1994); Henderson v. INS,

157 F.3d 106 (2d cir. 1998), cert. denied, sub nom Reno v. Navas, 119 S.Ct. 1141 (1999) (2d

Cir. 1998); Goncalves v. INS, 144 F.3d 110 (1st Cir. 1998), cert. denied, 119 S.Ct. 1140

(1999). But see Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997) (treating applications of a new law to circumstances occurring before its enactment as not being retroactive);

but cf. Matter of Gomez-Giraldo, supra, at 960 (affirming the restrictions on former section

212(c) of the Act as being “fully consistent with the Supreme Court’s recent holdings in

Landgraf v. USI Film Products”), 3

See, e.g., ADAA § 7343 (mandating that an alien convicted on or after November 18,

1988, be taken into custody and not released, and restricting eligibility for voluntary departure in such cases); ADAA § 7344, 102 Stat. at 4470-71 (rendering deportable any alien convicted of an aggravated felony at any time after entry occurring on or after November 18,

1988); ADAA § 7347, 102 Stat. at 4471-72 (providing expedited deportation proceedings for

person convicted of an aggravated felony on or after November 18, 1988.
Interim Decision #3370

Applicability to Convictions Prior to November 18, 1988, Op. Off. General

Counsel 91-3 (Feb. 22, 1991) (concluding that section 7343 of the ADAA,

102 Stat. at 4470, applies “only to those aliens ‘convicted’ of an aggravated felony on or after November 18, 1988”). Prominent among the sections

of the ADAA that the Board recognized as having an explicitly prospective

“on and after” November 18, 1988, applicability date is the aggravated

felony ground of deportability, codified originally as section 241(a)(4)(B),

which encompassed convictions that constitute an aggravated felony as

defined in section 101(a)(43) of the Act.

Congress’ amendment of the statute in 1990 made both substantive and

housekeeping changes that are relevant to our inquiry here. First, in the

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (enacted

Nov. 29, 1990) (“1990 Act”), the definition of what constituted an aggravated felony was expanded prospectively to include additional convictions,

occurring on or after November 29, 1990, for crimes generically referred to

as money laundering and crimes of violence, for which a sentence of more

than 5 years was imposed. See 1990 Act § 501(b), 104 Stat. at 5048.4

Second, certain grounds of deportation related to controlled substance and

firearms convictions and security violations were substantively amended.

Finally, without regard to whether there was any change whatsoever in

applicability, each ground of deportation, including those related to manner

of entry, immigration status, and other document violations, criminal violations, security violations, and other violations that were longstanding

grounds of deportation, was recodified across the board. See 1990 Act §

602(a), 104 Stat. at 5077.

Section 241(a)(4)(B) was among those renumbered in this reorganization of the “General classes of deportable aliens” under section 241 of the

Act. Matter of A-A-, supra, at 497 n.9 (noting that the 1990 Act “revised and

redesignated” the section as 241(a)(2)(A)(iii), but not distinguishing its

continuing applicability as before), The content of this particular deportation ground remained intact and was not touched either in terms of its content or its reach; nothing about the substantive applicability of this provision

was altered or amended in any way. Nowhere has the aggravated felony

ground of deportation been construed or otherwise treated as though the

revisions and redesignations contained in section 602 amending the 1990

Act affected or modified its substantive content or applicability only to convictions after November 18, 1988. 

386

4

Subsequent to the 1990 Act and 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 . . . [which] shall apply prospectively only . .

. ‘to convictions entered on or after the date of enactment of this Act.’ Section 222(b) of the

1994 Act, 108 Stat. at 4322.” Matter of Gomez-Giraldo, supra, at 959 n.1 (citation omitted). 
Interim Decision #3370

II. REASONABLE AND PERMISSIBLE INTERPRETATION 

OF THE STATUTE 

In my view, a reasonable and permissible interpretation of section

602(c), an ambiguous section of the statute, requires that we either follow

or distinguish our own precedent and properly acknowledge the scope of

controlling circuit law. Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-43 (1984); see also Ronald M. Levin, The

Anatomy of Chevron: Step Two Reconsidered, Symposium on

Administrative Law, 72 Chi.-Kent L. Rev. 1253, 1263 (1997)(asserting that

as the Court referred in other passages of Chevron to “reasonableness,” an

interpretation that is “permissible” might be one that, under the “hard-look

doctrine” applicable to review of agency decisions, would not be arbitrary

and capricious).

The majority cites legislative history from the House-Senate

Conference Committee that I presume they believe supports their position.

Unfortunately, it is not persuasive. The quotation they select to underscore

their position that the revision and redesignation stripped former section

241(a)(4)(B) of its November 18, 1988, effective date when it was recodified as 241(a)(2)(A)(iii) does not indicate anything of the sort, but only

addresses the fact that Congress’ principal purpose was meant to “make the

law more rational and easy to understand,” and specifies it was intended to

“repeal . . . outmoded grounds,” and to allow “consolidation of related

[deportation] grounds,” and “expansion of waivers” of deportability. H.R.

Conf. Rep. No. 101-955, at 119, 128 (1990), reprinted in 1990

U.S.C.C.A.N. 6784, 6793.

Reading the legislative change to strip the November 18, 1988, effective date restriction from the aggravated felony ground of deportability

merely because of a recodification of deportation grounds generally accomplishes none of these stated objectives. The aggravated felony ground was

neither repealed nor consolidated, nor made the subject of any expanded

waiver provision. It was simply one of many provisions reorganized into a

broad subsection that grouped together criminal offenses constituting

grounds of deportability. 

The limited legislative history neither addresses section 602(a) directly

nor constitutes evidence of a “ground-up” revision of all deportation provisions. The majority’s “understanding that the purpose of section 602 of the

1990 Act was to completely revise the deportation grounds” is without support. Such a comprehensive type of revision is what occurred recently in

section 306 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546, 3009-607 (Sept. 30, 1996) (“IIRIRA”), and had that occurred in

1990, there would have been little need for Congress to take the sweeping

actions it took in the IIRIRA. See, e.g., IIRIRA, title III (“Inspection,

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Apprehension, Detention, Adjudication, and Removal of Inadmissible and

Deportable Aliens”). 

I emphasize that in the course of its consolidating and reorganizing the

placement of the deportation grounds in the 1990 Act, Congress made some

quite significant substantive changes to the content of other deportation

grounds in the statute, but left the text of the aggravated felony ground of

deportability untouched. Moreover, while Congress added to the list of convictions defined as aggravated felonies, it did not roll back the effective date

for aggravated felonies for all purposes, but instead attached prospective

effective dates to the new convictions included in the list. This is a far cry

from recent, clearly deliberate changes in the statute, in which Congress

went far beyond a mere recodification of deportation grounds, but indicated explicitly, for example, that it intended to retroactively apply all “actions

taken” in relation to the aggravated felony grounds as a basis for removal,

without regard to the date the conviction occurred, and wished to insure that

deportation consequences would not be escaped once a plea or judgement

of guilty was entered and some form of punishment or limitation on an

alien’s liberty was imposed. See IIRIRA §§ 321(c), 322, 110 Stat. at 3009-

628; H.R. Conf. Rep. No. 104-828, at 224 (1996) (“Joint Explanatory

Statement”); see also 8 C.F.R. § 1.1(t) (1998).

A. Section 602(c)

I adopt the analysis advanced by concurring and dissenting members Guendelsberger and Schmidt. As I see it, a savings provisions saves.

See Black’s Law Dictionary 1205 (5th ed. 1979) (“Ordinarily a restriction

in a repealing act, which is intended to save rights, pending proceedings,

penalties, etc., from the annihilation which would result from an unrestricted repeal. . . . Such clause continues in force the law repealed as to existing

rights.” (defining savings clause) (emphasis added)).

The purpose of a savings clause is to preserve the previously existing

state of affairs, or status quo, when such would be changed by a statute’s

amendment. United States v. Menasche, 348 U.S. 528, 532 (1955) (limiting

substantive changes made by amendments in the immigration law to proceedings initiated after enactment of the new law). Under the language of

such a clause in the Immigration and Nationality Act of 1952, the United

States Supreme Court interpreted a savings clause to apply where something in the new law introduces a change, possibly affecting one’s status

under the old law. See Shomberg v. United States, 348 U.S. 540, 546 (1955),

Stated simply, as my concurring and dissenting colleagues put it, the

term “such section” in section 602(c) most reasonably refers to the substantive content of former provisions of section 241 that were not changed

substantively by the revision and redesignation made to the deportation

grounds made in the 1990 Act. Although the aggravated felony ground of

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deportability was recodified as section 241(a)(2)(A)(iii), nothing about the

specified substantive applicability of this provision was altered or amended

in any way. Nowhere has the aggravated felony ground of deportation been

construed or otherwise treated as though the revisions and redesignations

contained in section 602 amending the 1990 Act affected or modified its

substantive content or its applicability only to convictions after November

18, 1988.

B. Longstanding Agency Precedent and the 1990 Act

The majority’s position is difficult to comprehend, as we already have

recognized that section 602 of the Immigration Act of 1990 “revised and

redesignated” the grounds of deportability. Matter of A-A-, supra, at 492

n.1. Each existing ground of deportability was redesignated numerically in

a complete recodification of section 241 of the statute that was meant to better classify subsections by category, but only certain grounds were actually

altered or amended in substance. See 1990 Act § 602(a). The section that

governs deportability for conviction of an aggravated felony was not

changed at all in substance, or, in my view, in applicability. 

The majority’s current position essentially abandons this conclusion. It

rests on the view that (1) although no substantive change was made to the

aggravated felony ground of deportation in 1990, and 2) although no change

was made to the specific individually designated effective date on which

this provision was made applicable in 1988, the scope of its applicability

was changed nevertheless, because Congress recodified the subsections of

the Act and at the same time substantively amended some other subsections.

This is at odds with our existing precedent.

The Board has expressly recognized the difference between those provisions that were renumbered or redesignated by section 602(a) of the 1990

Act, and those that were substantively amended as to their content, and has

treated these qualitative and quantitative changes differently. In Matter of

Chow, 20 I&N Dec. 647 (BIA 1993), aff’d sub nom. Kin Sang Chow v. INS,

12 F.3d 34 (5th Cir. 1993), discussing the change worked by section 602(a)

in relation to section 241(a)(14) of the Act and its redesignation as section

241(a)(2)(C), the Board found that the statutory change 

significantly amended the substance of the provisions by increasing the number of

weapons offenses . . . and replacing the [former] enumeration of the specific types of

weapons . . . with one all-encompassing definition of a “firearm or destructive device.”

In essence, section 241(A)(2)(C) of the Act represents the enactment of a new statutory provision that completely supersedes all former versions of that deportation ground.

. . . Since the 1990 Act completely substituted section 241(a)(2)(C) of the Act for section 241(a)(14), we conclude that it also made irrelevant any restrictions on the applicability of the provisions of the former statute placed on it by the 1988 Act.

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Id. at 650-51 (emphasis added); see also Kin Sang Chow v. INS, supra, at

37, 38 (agreeing that the 1990 Act “completely supersedes all former versions of legislation dealing with deportation for firearm offenses” and that

“the BIA was justified in finding that Chow violated § 241(a)(2)(C) and that

the BIA’s decision was reasonable in accordance with Chevron” (emphasis

added)).

Thus, the Board was well aware that with section 602(a) of the 1990

Act Congress only changed the numerical designation of some deportation

grounds, while with others, such as that governing firearms violations, it

“completely substituted” the text of the new section for that of the former

section. And, in the latter cases, the Board concluded that any limitation on

the applicability of the former section would no longer have any force, leaving only the effective date provision of section 602(d) to govern the applicability of the new section. Matter of Chow, supra.

By contrast, the Board did not make such a suggestion either in Matter

of A-A-, supra, which preceded Matter of Chow, or in Matter of GomezGiraldo, supra, which followed Chow. Indeed, in Matter of A-A-, we

invoked, as a contrast to such a reading, the express language of the aggravated felony ground of deportability first introduced by the ADAA (which

the majority denies we have addressed other than for “illustrative purposes”). Although the Board did not need to reach the issue of deportability in

that case because the respondent’s Order To Show Cause had been issued

before the change in the law, we specifically relied on the provision pertaining to deportability as a point of comparison, stating,

For example, as enacted by section 7344(a) of the Anti-Drug Abuse Act of 1988, 102

Stat. at 4470-71, section 241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4)(B) (1988), renders deportable any alien “convicted of an aggravated felony at any time after entry.”

Congress explicitly stated that this deportation ground would only be prospectively

applied to an alien “convicted, on or after the date of the enactment of [the 1988] Act,

of an aggravated felony.” Section 7344(b) of the Anti-Drug Abuse Act of 1988, 102

Stat. at 4471.

Matter of A-A-, supra, at 497 (emphasis added) (footnote omitted).

Moreover, in 1994, in Matter of Gomez-Giraldo, supra, we looked to the

1990 Act to defend the rationale for our decision in Matter of A-A-, supra,

stating that Congress, which is “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), . . . did not disturb our

construction of the statutory provisions at issue in Matter of A-A- and revisited here.” Matter of Gomez-Giraldo, supra, at 961 n.3 (emphasis added)

(citing Matter of A-A-, supra, at 499).

In Matter of Chow, supra, we made very, very clear that the basis for

our ruling was the fact that the substance of the separate provision relating

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to firearms and destructive devices was new. Furthermore, the fact that section 602(d) sets forth an effective date for the changes made by the 1990 Act

need not mean it obviates aspects of temporal applicability associated with

pre-existing provisions that were merely redesignated in the course of the

recodification. See Matter of Papazyan, 20 I&N Dec. 568, 570 (BIA 1992),

in which the Board addressed little more than whether the Service could

sustain its burden of proof in terms of charging a deportation ground under

its present designation when based on the grounds of inadmissibility as previously codified in the Act. Therefore, section 602(d) may be afforded

meaning simply as to when charges under the relevant sections of section

241(a) as redesignated are proper, and need not supplant or substitute for a

previously enacted and substantively undisturbed applicability provision

such as exists under section 7344(b) of the ADAA, 102 Stat. at 4471.

To dismiss our reliance on the terms of section 7344 of the ADAA as

being no more than merely for an “illustrative purpose” strains credulity. Of

course these extensive comparisons served an illustrative purpose, but why

would the Board repeatedly invoke a supposedly superseded provision of

the ADAA purely for purposes of illustration? And even if we had used past

history that had been superseded to illustrate a point, why would we have

been so inexact as not to distinguish it squarely as only an aspect of our

illustration? 

We spent over five pages discussing these ADAA provisions in depth,

and specifically relied on section 7344 of the ADAA as a counterpoint for

our interpretation of the 1990 Act provision pertaining to restrictions on

waiver eligibility. Matter of A-A-, supra. We meaningfully distinguished our

conclusion in Matter of Chow on the basis that it “completely superseded”

the former deportability ground pertaining to firearms, because it was

“completely substituted” in the 1990 Act, never indicating that we believed

the aggravated felony deportation ground to have been given the same

effect. See also Matter of Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993)

(holding that a respondent convicted of first degree murder with a pistol was

deportable for a firearms violation under section 241(a)(2)(C) on the basis

of our decision in Matter of Chow, supra), aff’d, 25 F.3d 986 (11th Cir.

1994).

Certainly, we must have taken the provisions of section 602 of the 1990

Act into account generally in interpreting the new firearms and waiver provisions. It is not as though we made only some casual reference to section

7344 of the ADAA in Matter of A-A-, as an example, albeit without any

force, of “what Congress does when it wants to set a prospective limitation.”

Cf. Matter of Lettman, 22 I&N Dec. 365, at 372 (BIA 1998. The majority

fails to explain its disregard for the implicit and explicit reliance on the

aggravated felony deportability ground in our analyses in Matter of A-A-,

supra, or Matter of Chow, supra, in asserting that its conclusion today

somehow is in conformity with that precedent. 

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Moreover, a closer look at our 1993 decision in Matter of Lopez-Amaro,

supra, is revealing in that it involves a respondent convicted in 1983 of first

degree murder with a firearm, who was not charged with being or found

deportable on the basis that her murder conviction constituted an aggravated felony. Id. at 669. If the majority’s view of section 602(c) of the 1990 Act

is correct or consistent with the way in which the applicability of the deportation ground for an aggravated felony previously was understood, why

would an alien convicted of first degree murder in 1983 not have been

charged with being convicted of an aggravated felony, but as having been

convicted of a firearms offense, as amended by the 1990 Act?5

We recognized specifically that “[d]eportability based on conviction of

a crime involving moral turpitude is not at issue in this case because the

murder took place more than 5 years after the respondent’s [1977] entry into

this country.” Matter of Lopez-Amaro, supra, at 669 n.1.6 We do not intimate even the possibility that the respondent could have been deportable

based on an aggravated felony conviction. While, admittedly, the particular

grounds of deportability charged are within the prosecutorial discretion of

the Service, the Service’s failure to include such a charge and the Board’s

failure to even consider it an issue indicate to me that, as I suggested at the

outset, a 1983 conviction was presumed not to constitute a basis for deportation because it occurred prior to November 18, 1988. 

Furthermore, the Service’s interpretation of former section

242(a)(2)(B) of the Act, 8 U.S.C. § 1252(a)(2)(B) (1994), addressing eligibility for release from custody, which had been prohibited altogether in

cases in which the respondent had been convicted of an aggravated felony,

is pertinent. See ADAA §§ 7343(a), (c), revised by 1990 Act § 504(a), 104

Stat. at 5049-50 (enacted Nov. 29, 1990), corrected by Miscellaneous and

Technical Immigration and Naturalization Amendments of 1991, Pub. L.

No. 102-232, § 306, 105 Stat. 1733, 1751 (“MTINA”); see also 8 C.F.R §

242.2(c) (1997). In interpreting the revision of that section that allowed the

release of certain respondents from custody, the Service concluded that the

aggravated felony convictions in question were those occurring after

November 18, 1988. See Op. Off. General Counsel 91-3, supra (concluding

that section 7343 of the ADAA applies “only to those aliens ‘convicted’ of

an aggravated felony on or after November 18, 1988 [and] . . . triggers the

mandatory detention [provision]”); see also Matter of Ellis, 20 I&N Dec.

392

5

I note that the Order To Show Cause in this case was issued on July 31, 1991, after the

March 1, 1991, date on which the revisions and redesignations made in section 602(a) of the

1990 Act had taken effect according to section 602(d). 6

The respondent in Matter of Lopez-Amaro, supra, was originally paroled into the country in 1972, but completed her “entry” when her status was adjusted in 1977. See also Matter

of Jimenez-Lopez, 20 I&N Dec. 738 (1993).
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641, 643 (BIA 1993) (holding that under the 1990 Act, the Attorney General

could release an alien convicted of an aggravated felony, providing he

demonstrates that he has been lawfully admitted to the United States, does

not present a threat to the community, and is likely to appear for any scheduled hearing).

The Service’s interpretation supports the view that a prospective application of the aggravated felony ground of deportability (following enactment of the ADAA on November 18, 1988) has been, and remains, the rule.

Our decisions reflect that we have read the provisions involving the aggravated felony ground of deportation and those governing release from custody together. See Matter of Melo, supra, at 885 (distinguishing between a

1987 and a 1989 conviction, each of which was for drug trafficking in concluding that it was the respondent’s 1989 conviction that “brought him

within the ambit of former section 242(a)(2),” which required individuals

convicted of an aggravated felony after November 18, 1988, to rebut a presumption of dangerousness for bond purposes). It would be unusual, if not

irreconcilable, to conclude that, under the 1990 Act, an individual convicted of an aggravated felony before November 18, 1988 was to be treated as

deportable on the basis of having an aggravated felony conviction, but that

the aggravated felony custody provisions would not apply to him or her.

III. SECTION 602 AND THE AGGRAVATED FELONY GROUND OF

DEPORTABILITY AS INTERPRETED BY THE FEDERAL COURTS 

Section 241(a)(2)(A)(iii) of the Act and the subsections specifying

grounds of deportation for controlled substance and firearms convictions

are independent of one another. It is as though aggravated felonies are

apples; firearms convictions are oranges. While they may join each other in

one big fruit basket, they are distinct. Nonetheless, both the majority and

the concurring and dissenting Board members latch onto the decisions of

the Federal circuit courts involving the substantive change in the firearms

ground of deportability as though they are dispositive of the issue before us.

I disagree.

A. The Eleventh Circuit Opinion in Lopez Amaro v. INS

Does Not Control

I note that the United States Court of Appeals for the Eleventh Circuit,

the circuit in which this case arises, has tailored its own decisions to follow

Board law. See Jaramillo v. INS, 1 F.3d 1149, 1155 (11th Cir. 1993) (en

banc). The operative word here is “follow.” The Eleventh Circuit has

expressed repeatedly its desire to follow a consistent agency policy, most

recently citing to Jaramillo in Yeung v. INS, 76 F.3d 337, 341 (11th Cir.

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1995), where the court held:

We recognize, however, that the issues raised here are of national importance in “an

area of the law where uniformity is particularly important.” Jaramillo v. INS, 1 F.3d

1149, 1155 (11th Cir.1993) (en banc). We will therefore afford the Attorney General,

in whom Congress has vested the authority to rule on legal questions arising from the

immigration law, the opportunity to reconsider and construe § 212(h) consistent with

the competing statutory, constitutional, and policy interests at stake. 

In other words, in neither Yeung nor Jaramillo did the circuit court

reach a particular legal conclusion on its own, but arrived at the result it

reached by following the Board’s own reasoning. Lopez-Amaro v. INS, 25

F.3d 986 (11th Cir. 1994), cert. denied, 513 U.S. 1146 (1995), is a circuit

court decision addressing a weapons conviction that relies on Board precedent in Matter of Chow, supra. In Jaramillo v. INS, supra, the court stated

clearly:

In such a case, “the question for the court is whether the agency’s answer is based on

a permissible construction of the statute.” We must defer to the Board, . . . so long as

the Board’s interpretation “represents a reasonable accommodation of conflicting

policies that were committed to the agency’s care by the statute . . . unless it appears

from the statute or its legislative history that the accommodation is not one that

Congress would have sanctioned.”

Id. at 1153-54 (second emphasis added) (citations omitted) (quoting

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at

843, 845). 

In Lopez-Amaro, the Eleventh Circuit addressed the completely

rewritten ground of deportability based on a firearms conviction as it had

been addressed by the Board in Matter of Chow, supra, separate and apart

from any interpretation of the aggravated felony ground of deportability.

As I have indicated above, the respondent in Lopez-Amaro was not

charged with deportability on the aggravated felony ground based on a

1983 first degree murder conviction, although there was no impediment to

her being so charged had a pre-November 18, 1988, conviction been

viewed as supporting a charge of deportability. Thus, although the majority speaks in terms of the circuit “addressing” the issues raised—and my

two dissenting colleagues apparently acquiesce to this position—clearly

the circuit has not done so squarely. In fact, the majority admits that neither the Eleventh Circuit nor any other circuit has spoken directly to the

effect of section 602 or anything else in the 1990 Act in relation to when

a conviction prior to November 18, 1988, that may be classified as an

aggravated felony renders an alien deportable under section

241(a)(2)(A)(iii) of the Act. 

For their part, my concurring and dissenting colleagues state only that

they do not “find a meaningful basis for distinguishing the issue presented

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in Lopez-Amaro in regard to firearms convictions.” My reply to these reservations is: What about our decision in Matter of Chow, supra, and the fact

that we expressly reached the holding there because the substance of the

firearms provision was completely revamped? What about the fact that we

subsequently reaffirmed our analysis in Matter of A-A-, supra, without even

the suggestion of modification or clarification in Matter of Gomez-Giraldo,

supra? We did not address the aggravated felony deportation ground, and

the Eleventh Circuit did not follow any reasoned interpretation on our part

in that regard in Lopez-Amaro. Instead, as discussed above, prior to the

instant opinion, we have made plain—in decisions expressly analyzing the

effect of the 1990 Act on the aggravated felony ground of deportation—that

we did not consider a conviction prior to that date to render an alien

deportable.

B. Federal Court Acceptance of Our Reading

No Federal court decision appears to have squarely addressed a challenge to a finding of deportability, per se, based on an aggravated felony

conviction entered prior to November 18, 1988, in which a notice was provided prior to March 1, 1991; however, at least one case has addressed a

pre-November 18, 1988, conviction, and several have addressed the Board’s

interpretation as though conviction of an aggravated felony as a ground of

deportability provides a point of comparison for interpretation of other

statutory sections amended by the 1990 Act. 

In Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996), a respondent, who

was convicted in 1987 of various Federal racketeering and controlled substance distribution offenses, was charged in March 1992 with deportability

under section 241(a)(2)(B)(i) of the Act, as an alien convicted of a controlled substance violation. Id. at 1518. Deciding this appeal in 1996, the

United States Court of Appeals for the Third Circuit found the respondent

ineligible for a waiver of deportability under section 212(c), as amended by

the provisions of the 1990 Act, by relying on the 1988 provisions of the

ADAA, including the aggravated felony ground of deportability, reasoning

as follows:

The other three substantive provisions of the ADAA employing the “aggravated

felony” term, each of which concerns deportation of aggravated felons, explicitly limit

their application prospectively to aliens convicted of aggravated felonies “on or after

the date of the enactment” of the ADAA. See §§ 7343(c) (“Deportation of Aliens

Committing Aggravated Felonies”), 7344(b) (“Grounds of Deportation”), and 7347(c)

(“Expedited Deportation Proceedings for Aliens Convicted of Aggravated Felonies”).

. . . [T]hese provisions demonstrate that Congress knew well how to limit expressly the

reach of a provision where it desired to do so, but Congress did not do so with respect

to the definition section. 

Id. at 1524 (emphasis added) (citing INS v. Cardoza-Fonseca, 480 U.S. 421,

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432 (1987), noting that, where Congress includes particular language in one

section of a statute but omits it from another section of the same act, it is

generally presumed that Congress acted intentionally and purposely in the

disparate inclusion or exclusion). No suggestion was made that the petitioner’s deportation was inevitable because he was deportable as a result of

a conviction for an aggravated felony.

Similarly, in a 1993 decision, De Osorio v. United States INS, 10 F.3d

1034, 1039 (4th Cir. 1993), the United States Court of Appeals for the Fourth

Circuit adopted the view of the Board in Matter of A-A-, supra, concluding

that “[t]he Board contends that because other sections of the ADAA and the

IMMACT have explicitly prospective language (i.e. they are applicable only

to aggravated felony convictions on or after the date of enactment), then sections without any temporal limits, such as § 212(c), must include all aggravated felonies.” The court so held based on its understanding that 

[t]he Board asserted in Matter of A-A- that when Congress intended a restriction in the

ADAA to apply to convictions only after the date of enactment, it expressly so stated.

Int. Dec. 3176 at 8-10. For example, § 7344(a) made aliens convicted of an aggravated felony deportable, but this provision was only to be prospectively applied to convictions after the date of the ADAA’s enactment. 102 Stat. at 4470-71, (codified at

§241(a)(4)(B) of the INA, 8 U.S.C.A. § 1251(a)(4)(B) (West Supp.1993)),

Id. at 1039 n.4 (emphasis added). 

In another case involving criminal reentry after deportation by one convicted of an aggravated felony, United States v. Baca-Valenzuela, 118 F.3d

1223 (8th Cir. 1997), the United States Court of Appeals for the Eighth

Circuit acknowledged that at the time the petitioner was convicted of a state

drug charge in 1987, his conviction was not an aggravated felony, but a

felony which then was a deportable offense under section 241(a)(4), and

reentry into the United States after deportation carried a maximum penalty

of 2 years in prison. 8 U.S.C. § 1326 (1987). The court recognized, however, that while Baca-Valenzuela was imprisoned, Congress passed statutes in

1988 and 1990 amending the relevant provisions on illegal reentry after

deportation in several of the other substantive sections of the 1988 Act,

which used the term “aggravated felony,” but explicitly limited the statute’s

application to aliens convicted of aggravated felonies “on or after the date

of the enactment.” The court reasoned that such an express limitation

would have been unnecessary and redundant if the definition of “aggravated felony” did not already include convictions prior to the effective date of

the Act. See id. at 1229 n.12, (where the court emphasized that 

[i]n two other sections of the 1988 Act a substantive provision regarding the deportation of aliens who commit an aggravated felony is explicitly limited to prospective

crimes only. See §§ 7344(b) (“Grounds of Deportation”) & 7347(c) (“Expedited

Deportation Proceedings for Aliens Convicted of Aggravated Felonies”)).

These Federal court decisions rendered in 1996, 1993, and 1997,

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respectively, relied on the November 18, 1988, effective date applicable to

the aggravated felony ground of deportation. They did not invoke the pre1990 Act provision for “illustrative purposes,” but because they viewed it as

being in effect, just as we, at the Board, relied on the November 18, 1988,

effective date in our 1992, 1993, and 1994 decisions.

IV. CONCLUSION

The majority, nevertheless, ignores our previous reliance on the aggravated felony deportation ground as a point of comparison to understand the

provisions of the 1990 Act. Although no legislative history exists that

directly addresses the scope of the aggravated felony deportation ground,

and although no Federal court supports the position we now adopt as precedent, the majority puts it forth as a reasoned analysis.

While the nature of the ultimate question—did a simple housekeeping

recodification that left intact all substantive aspects of a prior subsection

stating that deportability is incurred when an alien is convicted of an aggravated felony after November 18, 1988, change that subsection—may seem

rather straightforward, the answer is not plain and requires reexamination

of ambiguous statutory provisions. I question the value of such a debate

when the particular question already has been decided and followed consistently by the Board in aggravated felony cases, the statutory sections

have been completely overwritten both in form and substance, the provision

would affect convictions over 10 years old, and the answer now gleaned

from revisiting prior law applies only to whatever remaining deportation

proceedings that were initiated sometime before April 1, 1997, are still

pending, going on 2 years later.

However, because I cannot conclude that the majority opinion reversing our established interpretation constitutes a reasoned decision, and

because extremely severe deportation consequences attach to the interpretation they impose, I cannot join it. Indeed, even if I agreed with the majority’s analysis, I could not join it, as I believe that if we are going to reverse

consistently applied Board law, we should declare that we are doing so, provide our reasons for doing so, and, as we have done in the past, make specific, intentional modifications to existing precedent decisions. I also do not

find that the result reached by the majority is preordained in the Eleventh

Circuit, in which jurisdiction this case arises. Consequently, I dissent. 

397