Matter of Barrett, Interim Decision Number 3131
| Decision Date | 02 March 1990 |
| Docket Number | A-37213802.,Interim Decision Number 3131 |
| Parties | MATTER OF BARRETT. In Bond Proceedings Pursuant To 8 C.F.R. § 242.2(d). |
| Court | U.S. DOJ Board of Immigration Appeals |
The Immigration and Naturalization Service has appealed from the immigration judge's decision dated September 5, 1989, granting the respondent's request for a bond redetermination hearing. Oral argument before this Board was held on November 7, 1989. The appeal will be sustained, and the record will be remanded to the immigration judge.
The respondent is a 20-year-old native and citizen of Jamaica. An Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-122S) dated August 8, 1989, alleges that the respondent was admitted to the United States as a lawful permanent resident on September 12, 1980, at Miami, Florida.1
On January 19, 1989, the respondent was convicted in the District Court of Maryland, Prince George's County, of the following offenses: (1) two counts of possession of a controlled dangerous substance (one count for marihuana and one count for phencyclidine) in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense in violation of article 27, section 286 of the Annotated Code of Maryland; (2) two counts of possession of a controlled dangerous substance (one count for marihuana and one count for phencyclidine) in violation of article 27, section 287 of the Annotated Code of Maryland; and (3) possession with intent to use drug paraphernalia to contain a controlled substance in violation of article 27, section 287A of the Annotated Code of Maryland. He was sentenced to 3 years' probation.
The respondent is charged with deportability under section 241(a)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(B) (1988), for conviction of an "aggravated felony," and under section 241(a)(11) of the Act, for conviction of a controlled substance violation. The Service determined that the respondent was to be continued in custody without bond pursuant to section 242(a)(2) of the Act, 8 U.S.C. § 1252(a)(2) (1988), which precludes the release of an alien convicted of an "aggravated felony" as defined in section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988). On the reverse side of his Order to Show Cause the respondent signed a request for redetermination of his custody status by the immigration judge. In a decision dated September 5, 1989, the immigration judge found that the respondent had not been convicted of an aggravated felony and therefore was not barred from release from Service detention under section 242(a)(2) of the Act. He granted the respondent's request for a redetermination hearing. On September 12, 1989, the immigration judge conducted the redetermination hearing and set bond at $5,000, which the respondent posted. This appeal by the Service followed.
The Immigration and Nationality Act was amended by the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (effective Nov. 18, 1988), to include certain provisions relating to aliens convicted of an "aggravated felony."
Section 241(a)(4)(B) of the Act, added by section 7344 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4470-71, renders deportable an alien who is "convicted of an aggravated felony at any time after entry."
Section 242(a)(2) of the Act, added by section 7343(a) of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4470, states:
The Attorney General shall take into custody any alien convicted of an aggravated felony upon completion of the alien's sentence for such conviction. Notwithstanding subsection (a),2 the Attorney General shall not release such felon from custody.
Section 101(a)(43) of the Act, added by section 7342 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4469-70, defines the term "aggravated felony" as follows:
The term "aggravated felony" means murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.
Title 18 section 924(c)(2) of the United States Code section 6212 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4360, defines the term "drug trafficking crime":
For purposes of this subsection, the term "drug trafficking crime" means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).
Thus, with respect to drug-related offenses, an "aggravated felony" is "any drug trafficking crime," i.e., "any felony punishable under" the three statutes enumerated in 18 U.S.C. § 924(c)(2) (1988).3
On appeal the Service contends that the definition of "drug trafficking crime" in 18 U.S.C. § 924(c)(2) encompasses state as well as federal crimes. The Service argues that a state law conviction is "punishable" within the meaning of 18 U.S.C. § 924(c)(2), provided "the elements of the crime resulting in the conviction in state court would have rendered the defendant capable or liable to punishment under one of the three statutes enumerated" in section 924(c)(2). Specifically, the Service contends that the elements of the respondent's state law convictions for "possession of a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense" in violation of article 27, section 286 of the Annotated Code of Maryland satisfy the elements for a conviction under 21 U.S.C. § 841(a)(1) (1988) of the Controlled Substances Act and are therefore "aggravated felonies."4 Accordingly, the Service contends, the immigration judge erred in finding the respondent eligible for release from Service custody under section 242(a)(2) of the Act.5
In all cases involving statutory construction, the starting point must be the language employed by Congress, and it is assumed that the legislative purpose is expressed by the ordinary meaning of the words used. INS v. Cardoza-Fonseca, 480 U.S 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984).6
The resolution of the question whether state crimes are included in the definition of "drug trafficking crime" depends on whether the phrase "punishable under" is properly read as limiting the definition to "convictions under" the federal laws listed in 18 U.S.C. § 924(c)(2), or whether the definition is satisfied by proving a conviction that includes all the elements of an offense for which an alien "could be convicted and punished" under the cited federal laws.
We find no prior conviction requirement in the term "punishable under" in 18 U.S.C. § 924(c)(2). To the contrary, Congress's choice of the term "punishable under" plainly avoids such a narrow interpretation.
In a 1985 case, Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, the Supreme Court interpreted the term "punishable under" in a statutory scheme similar to the one before us. The Racketeer Influenced and Corrupt Organizations statute ("RICO"), enacted as Title IX of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 901(a), 84 Stat. 922, 941-48, codified at 18 U.S.C. § 1961-1968 (1982), defines "racketeering activity" to mean, in part, "any offense involving ... the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States." 18 U.S.C. § 1961(1)(D) (emphasis added). At issue in Sedima was whether a civil action to recover treble damages under 18 U.S.C. § 1964(c) could proceed only against a defendant who had already been convicted of a predicate act of racketeering activity or a RICO violation. In reversing the United States Court of Appeals for the Second Circuit, the Supreme Court found no prior conviction requirement in the definition of "racketeering activity." The Court stated:
The language of RICO gives no obvious indication that a civil action can proceed only after a criminal conviction. The word "conviction" does not appear in any relevant portion of the statute. To the contrary, the predicate acts involve conduct that is "chargeable" or "indictable," and "offense[s]" that are "punishable," under various criminal statutes. As defined in the statute, racketeering activity consists not of acts for which the defendant has been convicted, but of acts for which he could be.
Sedima, S.P.R.L. v. Imrex Co., Inc., supra, at 488 (citations omitted).
In sum, the Supreme Court in Sedima determined that the phrase "punishable under any law of the United States" did not mean "convicted under" these laws but instead referred to conduct for which one "could be convicted" under these laws. Similarly, we do not limit the phrase "punishable under" to mean "convicted under" the enumerated statutes in 18 U.S.C. § 924(c)(2) in the case before us. If Congress had wanted only convictions under the cited...
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