Matter of a---- a----
| Decision Date | 15 May 1992 |
| Docket Number | Interim Decision Number 3176,A-37007541. |
| Citation | 20 I&N Dec. 492 |
| Parties | MATTER OF A---- A----- In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
On September 13, 1991, an immigration judge found the respondent deportable under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1988),1 as an alien convicted of a crime involving moral turpitude within 5 years after entry.2 The immigration judge determined that the respondent, having been convicted of murder, and, hence, a "particularly serious crime," was precluded under 8 C.F.R. § 208.14(c)(1) (1991) from qualifying for asylum as provided in section 208(a) of the Act, 8 U.S.C. § 1158(a) (1988). The immigration judge also concluded for this same reason that the respondent was ineligible for withholding of deportation pursuant to section 243(h)(2)(B) of the Act, 8 U.S.C. § 1253(h)(2)(B) (1988). On the other hand, the immigration judge found the respondent qualified to apply for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. II 1990), but ultimately denied relief in the exercise of discretion and ordered the respondent deported to El Salvador. Dissatisfied with the outcome of his case, the respondent appealed. The appeal will be dismissed.
The respondent is a 48-year-old native and citizen of El Salvador who was admitted to the United States on May 7, 1982, as a lawful permanent resident. On June 20, 1985, the respondent was convicted in the 262d District Court of Harris County, Texas, of murder and was sentenced to a 20-year term of imprisonment, with credit for 185 days already served. Accordingly, the respondent has been incarcerated since December 1984.
Pursuant to an Order to Show Cause and Notice of Hearing (Form I-221) issued by the Immigration and Naturalization Service on November 28, 1988, three hearing sessions were conducted in this case in 1991. During these hearings, the Service introduced a court-certified record of the respondent's 1985 conviction, to which there was, and presently is, no dispute. On this evidence, the Board is satisfied that deportability under section 241(a)(4) of the Act has been established by clear, unequivocal, and convincing evidence as required by Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R. § 242.14(a) (1992). See Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991); Matter of Awaijane, 14 I&N Dec. 117 (BIA 1972).
In his decision, the immigration judge found that the respondent's crime of murder was, on its face, a "particularly serious crime," rendering the respondent ineligible for asylum under 8 C.F.R. § 208.14(c)(1) (1991)3 and for withholding of deportation under section 243(h)(2)(B) of the Act. The immigration judge ruled, however, that the respondent was eligible for a waiver under section 212(c) of the Act and permitted him to apply for this form of relief. In so doing, the immigration judge rejected the Service's contention that the respondent — having been convicted of an aggravated felony, and having already served more than 5 years for that offense — was statutorily barred from section 212(c) relief. The immigration judge reasoned that, since the respondent was convicted before the enactment of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (enacted Nov. 18, 1988) ("1988 Act"), which first introduced the term "aggravated felony" to the Immigration and Nationality Act, the respondent's murder conviction was not an aggravated felony bringing him within the reach of the statutory bar of section 212(c) of the Act. We disagree and are thus presented with an opportunity to address the issue of when a conviction must occur to be classified as an "aggravated felony" under section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988 & Supp. II 1990).4
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). We therefore begin our analysis with the term "aggravated felony," which was introduced into the Act by section 7342 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4469-70.5 As enacted, section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988), provided:
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.
No effective date, however, was given to this definitional provision. Neither section 7342 nor any other provision of the 1988 Act included language specifying whether the term "aggravated felony" applied only to convictions occurring on or after November 18, 1988, the enactment date of the 1988 Act, or whether it also applied to convictions that occurred before that date.
Included in the Anti-Drug Abuse Act of 1988, however, were several provisions that attached specific immigration consequences (or so-called disabilities) to those convicted of aggravated felonies. These disabling provisions make clear — through necessary implication — that the aggravated felony definition was meant to apply to convictions that occurred before the enactment date of the 1988 Act.
Section 7345 of the 1988 Act, 102 Stat. at 4471, for example, enhanced the criminal penalties for the premature reentry of an alien "whose deportation was subsequent to a conviction for commission of an aggravated felony." Found at section 276(b)(2) of the Act, 8 U.S.C. § 1326(b)(2) (1988), these enhanced penalties consist of a fine under title 18, United States Code, imprisonment of not more than 15 years, or both. See section 7345(a) of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4471. These penalties are applicable to "any alien who enters, attempts to enter, or is found in, the United States on or after the date of enactment of [the 1988] Act." Section 7345(b) of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4471 (emphasis added). For an alien reentering the United States on November 18, 1988, to be subject to these criminal penalties, the alien would need to have suffered a conviction and deportation before November 18, 1988. It would be virtually impossible for an alien convicted of an aggravated felony to reenter or be found in the United States on the date of enactment...
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