In re Clint SAINT JOHN, Respondent

File A31 171 658 - New York

Decided September 23, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien convicted of attempting or conspiring to commit a firearms violation is deportable

under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C)

(1994), which applies retroactively to convictions entered before, on, or after October 25, 1994.

Matter of Hou, 20 I&N Dec. 513 (BIA 1992), superseded.

FOR RESPONDENT: Neil Martin Zang, Esquire, New York, New York

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,

MATHON, and GUENDELSBERGER, Board Members.

HEILMAN, Board Member:

In a decision dated November 28, 1994, the Immigration Judge found the

respondent deportable under section 241(a)(2)(C) of the Immigration and

Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (1994), denied his application for a

waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c)

(1994), and ordered him deported from the United States to Trinidad and

Tobago. The respondent has appealed from this decision. The appeal will be

dismissed.

I. BACKGROUND

The respondent is a male, native and citizen of Trinidad and Tobago who

entered the United States as a lawful permanent resident on or about July 15,

1972. On June 13, 1994, an Order to Show Cause and Notice of Hearing

(Form I-221) was issued against the respondent charging him with

deportability under section 241(a)(2)(C) of the Act for conviction of a firearms violation. At his hearing, the respondent admitted the allegations of fact

but contested the charge of deportability. The respondent filed a motion to

terminate deportation proceedings, which was denied by the Immigration

Judge, who subsequently found him deportable as charged.

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The record reveals that the respondent was convicted on July 19, 1990, in

the United States District Court for the Eastern District of Virginia, of providing false information or identification to a federal firearms dealer in the

acquisition of a firearm pursuant to 18 U.S.C. § 922(a)(6) (1988).1 As a result

of his conviction, the respondent was fined and sentenced to 6 months’ incarceration to be followed by 3 years of supervised release.

II. ISSUES ON APPEAL

On appeal, the respondent argues that under existing Board precedent his

conviction cannot be used to find him deportable under section 241(a)(2)(C)

of the Act.2 He also contends that the Immigration Judge erred in determining that he was deportable because application of the 1994 amendment to

section 241(a)(2)(C) constitutes an impermissible retroactive application of

law. Finally, he asserts that he is eligible for a waiver of inadmissibility

under section 212(c) of the Act.

III. BACKGROUND OF SECTION 241(a)(2)(C) OF THE ACT

At the time of the respondent’s conviction in July 1990, the ground of

deportability regarding firearms convictions was at section 241(a)(14) of the

Act, 8 U.S.C. § 1251(a)(14) (1988), which provided for the deportation of an

alien who

at any time after entry, shall have been convicted of possessing or carrying in violation of

any law any firearm or destructive device (as defined in paragraphs (3) and (4)), respectively, of section 921(a) of title 18, United States Code, or any revolver or any weapon

which shoots or is designed to shoot automatically or semiautomatically more than one shot

without manual reloading, by a single function of the trigger, or a weapon commonly called

a sawed-off shotgun.

Section 241(a)(14) was subsequently revised and redesignated in November 1990 as section 241(a)(2)(C) of the Act, 8 U.S.C. § 1251(a)(2)(C) (Supp.

II 1990), by section 602(a) of the Immigration Act of 1990, Pub. L. No.

101-649, 104 Stat. 4978, 5080. In 1990 section 241(a)(2)(C) stated that

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1 Section 922(a)(6) provides that it is unlawful

for any person in connection with the acquisition or attempted acquisition of any firearm

or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or

licensed collector, knowingly to make any false or fictitious oral or written statement or

to furnish or exhibit any false, fictitious, or misrepresented identification, intended or

likely to deceive such importer, manufacturer, dealer, or collector with respect to any

fact material to the lawfulness of the sale or other disposition of such firearm or

ammunition under the provisions of this chapter. 2 The respondent has consistently characterized his conviction as being for attempted

possession of a firearm. However, his claim is not that his conviction does not constitute a

firearms conviction under section 241(a)(2)(C), but rather that the 1994 amendments to section

241(a)(2)(C) of the Act, which added attempted possession of a firearm to that ground of

deportability, should not have been applied to his 1990 conviction.
[a]ny alien who at any time after entry is convicted under any law of purchasing, selling,

offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law,

any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) is deportable.

This amendment applies to deportation proceedings for which notice has

been provided to the alien on or after March 1, 1991. See section 602(d) of the

Immigration Act of 1990, 104 Stat. at 5082. The respondent does not challenge the application of this amendment to his July 1990 conviction.

At the time of the respondent’s deportation hearing, however, section

241(a)(2)(C) of the Act provided that

[a]ny alien who at any time after entry is convicted under any law of purchasing, selling,

offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or

conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any

weapon, part, or accessory which is a firearm or destructive device (as defined in section

921(a) of title 18, United States Code) in violation of any law is deportable. (Emphasis

added.)

The reference to attempts and conspiracies was added to section 241(a)(2)(C)

of the Act by section 203(b) of the Immigration and Nationality Technical

Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4311. This

amendment applies to convictions occurring “before, on, or after” the October 25, 1994, enactment date of the 1994 Technical Corrections Act. See section 203(c) of the Immigration and Nationality Technical Corrections Act of

1994, 108 Stat. at 4311.

We have previously held that a conviction for an attempted firearms

offense will not support a charge of deportability under section 241(a)(2)(C)

of the Act. Matter of Hou, 20 I&N Dec. 513 (BIA 1992). We rendered our

decision in that case, however, prior to the passage of the Immigration and

Nationality Technical Corrections Act of 1994, which, as discussed above,

added attempts and conspiracies to section 241(a)(2)(C) of the Act. This

1994 amendment effectively supersedes the Board’s decision in Matter of

Hou.

IV. RETROACTIVE APPLICATION OF STATUTORY

AMENDMENT

The respondent also asserts on appeal that the Immigration Judge erred by

applying the 1994 amendment retroactively to his 1990 conviction. We find

no error. To determine whether Congress intended for the 1994 amendment

to apply retroactively to section 241(a)(2)(C) of the Act, we must first ascertain congressional intent from the plain meaning of the words used in the statute taken as a whole. See Matter of Grinberg, 20 I&N Dec. 911 (BIA 1994)

(citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)); see also K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (stating that in determining

the “plain meaning” of a statute, one “must look to the particular statutory

language at issue, as well as the language and design of the statute as a

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whole”). In the Immigration and Nationality Technical Corrections Act of

1994, Congress stated that the amendment pertaining to the revision of section 241(a)(2)(C) of the Act should apply to convictions “before, on, or after”

the October 25, 1994, enactment date of the statute. We thus find, based on

the express language of the statute, that Congress intended the 1994 amendment to section 241(a)(2)(C) to be applied retroactively.

Furthermore, retroactive application of new statutory provisions to conduct which was not an immigration law violation at the time that the conduct

occurred has been upheld by the courts. See Galvan v. Press, 347 U.S. 522

(1954) (upholding retroactive application of federal legislation concerning

immigration and deportation of aliens); Giusto v. INS, 9 F.3d 8 (2d Cir. 1993)

(upholding the retroactive bar to a section 212(c) waiver for aliens convicted

of one or more aggravated felonies who have served at least 5 years’ imprisonment as a result of such felonies); Buitrago-Cuesta v. INS, 7 F.3d 291 (2d

Cir. 1993) (holding that the retroactive bar to a section 212(c) waiver for

aggravated felons seeking to reenter the United States also applies to aliens in

deportation proceedings); United States v. Koziel, 954 F.2d 831 (2d Cir.

1992) (finding that the law abolishing judicial recommendations against

deportation can be applied retroactively to conduct that occurred prior to the

change in law); Gardos v. INS, 324 F.2d 179 (2d Cir. 1963) (stating that retroactive application of a statute authorizing deportation of an alien who at any

time had been convicted of a law or regulation related to a controlled substance does not violate the ex post facto clause of the Constitution).

Consequently, we find that the Immigration Judge was bound to follow

the law established by Congress and properly did so. We therefore find no

error in his application of the 1994 amendment of section 241(a)(2)(C) of the

Act to the respondent’s 1990 conviction.

The respondent has admitted that he was convicted of attempted possession of a firearm. Because conviction for attempted possession of a firearm is

a deportable offense under section 241(a)(2)(C) of the Act, as amended, and

that statute is properly applied to the respondent’s conviction, we find that

deportability has been established by clear, unequivocal, and convincing

evidence. See Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. § 242.14(a)

(1996).

V. STATUTORY ELIGIBILITY FOR SECTION 212(c) RELIEF

On appeal, the respondent further contends that, should he be found to be

deportable for a firearms violation, the Immigration Judge erred in determining that he was ineligible for a waiver of inadmissibility under section 212(c)

of the Act. He asserts that he is eligible for such relief from deportation pursuant to the ruling of the United States Court of Appeals for the Second Circuit in Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993).

Section 212(c) of the Act provides, in pertinent part, that

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[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may be admitted in the discretion of

the Attorney General without regard to the provisions of subsection (a) (other than paragraphs (3) [security and related grounds] and (9)(C) [international child abduction]).

The availability of section 212(c) relief was significantly expanded in

1976 when the Second Circuit held that a section 212(c) waiver should be

available regardless of whether the applicant had departed from the United

States subsequent to the acts which rendered him deportable. Francis v. INS,

532 F.2d 268 (2d Cir. 1976). This Board decided shortly thereafter to adopt

the approach of the Second Circuit nationwide. Matter of Silva, 16 I&N Dec.

26 (BIA 1976). The Board has declined to further expand the parameters of

section 212(c). See Matter of Esposito, 21 I&N Dec. 1 (BIA 1995); Matter of

Granados, 16 I&N Dec. 726 (BIA 1979), aff’d, 624 F.2d 191 (9th Cir. 1980).

The record reflects, and the respondent has admitted, that he was convicted of attempted possession of a firearm. As discussed above, the respondent is deportable under section 241(a)(2)(C) of the Act due to this

conviction. A lawful permanent resident alien who has been convicted of a

firearms violation is ineligible to apply for a waiver of inadmissibility under

section 212(c) of the Act. Matter of Montenegro, 20 I&N Dec. 603 (BIA

1992); Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990, A.G.

1991). Thus, although he has been a lawful permanent resident for 23 years,

the respondent is statutorily ineligible for a waiver of inadmissibility pursuant to section 212(c) of the Act because of his conviction for a firearms

violation.

Moreover, the respondent’s reliance upon Bedoya-Valencia v. INS, supra,

is misplaced. In that case, the Second Circuit, in whose jurisdiction the present case arises, determined that, under equal protection concerns, an alien

deportable for entering the United States without inspection could still be eligible for a waiver of inadmissibility under section 212(c) of the Act because

that was a charge of deportability which logically could have no analogous

ground of exclusion. Such is not the case presented here. Furthermore, the

circuit court has not extended the holding in Bedoya-Valencia v. INS to cover

aliens who have been convicted of a firearms violation, and we decline to do

so. See Cato v. INS, 84 F.3d 597 (2d Cir. 1996) (“Because a weapons offense

is not a ground of deportation that ‘could not conceivably’ have an exclusion

counterpart, the Bedoya-Valencia reasoning does not apply.”) (citation omitted). Under existing Board and Second Circuit precedent, the respondent is

ineligible to apply for a waiver of inadmissibility under section 212(c) of the

Act because there is no comparable ground of exclusion for his section

241(a)(2)(C) charge of deportability. Cato v. INS, supra; Matter of

Montenegro, supra; Matter of Hernandez-Casillas, supra.

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VI. CONCLUSION

Because the respondent is deportable as charged and has not demonstrated

that he is eligible for any relief from deportation, the appeal will be

dismissed.

ORDER: The appeal is dismissed.

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