
USCA1 Opinion

	




          March 31, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2093                                NESTOR OMAR BARREIRO,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                           PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Jeremiah Friedman  with whom Harvey  Kaplan, Kaplan, O'Sullivan  &            _________________            ______________  _____________________        Friedman, Lory  D. Rosenberg  and American Immigration  Law Foundation        ________  __________________      ____________________________________        were on brief for petitioner.            Alexander Shapiro with  whom Stuart M. Gerson, Assistant  Attorney            _________________            ________________        General,  Robert  Kendall, Jr.,  Assistant  Director,  and Charles  E.                  ____________________                             ___________        Pazar, Office of Immigration Litigation, were on brief for respondent.        _____            Denyse Sabagh,  Metzger, Gordon,  Scully, et  al., Barbara  Hines,            _____________   _________________________________  ______________        and Lawyers' Committee for  Civil Rights Under Law of Texas,  on brief            _______________________________________________________        for American Immigration Lawyers Association and National  Immigration        Project of the National Lawyers Guild, Inc., amici curiae.                                 ____________________                                    March 31, 1993                                 ____________________                      ALDRICH,  Senior Circuit Judge.   Petitioner Nestor                                ____________________            Omar  Barreiro, a 40 year old citizen of Argentina, moves for            a  stay  of  deportation.   He  has  been  a legal  permanent            resident since December  1980, is married to a  United States            citizen, and has a  ten year old son.  In October 1984 he was            convicted in the  Massachusetts Superior Court  of possession            of a sizeable amount of a controlled substance with intent to            distribute and was sentenced  to the mandatory term of  10 to            15 years.  He was released in April 1992, having served seven            years.   Meanwhile, in  June 1986 respondent  Immigration and            Naturalization Service  (INS) issued  an order to  show cause            why   petitioner  should   not   be  deported   pursuant   to              241(a)(11) of the Immigration and Naturalization Act (INA),            8  U.S.C.   1251(a)(11)  (Supp.  1986), as  amended 8  U.S.C.                                                    ___________              1251(a)(2)(B)(i) (Supp. 1992),  because of his  conviction.            This case  involves three  recent enactments:   the Anti-Drug            Abuse  Act of  1988 (ADAA),  Pub. L.  No. 100-690,  102 Stat.            4181;  the Immigration Act of 1990 (IMMACT), Pub. L. No. 101-            649,  104 Stat.  4978;  and the  Miscellaneous and  Technical            Immigration and Naturalization Amendments of 1991 (TINA) Pub.            L. No. 102-232, 105 Stat. 1733.                      In 1992  petitioner sought a waiver  of deportation            pursuant to INA   212(c), 8  U.S.C.   1182(c) (Supp. 1992) as            a seven year domiciliate.  This  was denied, and the Board of            Immigration Appeals affirmed, applying the final  sentence of            the section,  inserted on November  29, 1990,  that reads  as            follows:                                         -2-                      The  first  sentence  of this  subsection                      shall not apply to  an alien who has been                      convicted  of  one  or   more  aggravated                      felonies and has  served for such  felony                      or felonies a term of imprisonment of  at                      least 5 years.            IMMACT     511(a).     The   Board  held   that  petitioner's            imprisonment,   though  largely   completed  prior   to  this            amendment, was comprehended therein.  We agree.                      There is no question but that petitioner's offense,            though  he  was  convicted  in  a  state  proceeding,  is  an            aggravated   felony,  within   INA    101(a)(43),   8  U.S.C.              1101(a)(43) (Supp. 1992).1   Also, although   1182(c) reads                                            ____________________            1.             (43)  The  term "aggravated  felony"                      means murder, any illicit  trafficking in                      any controlled substance  (as defined  in                      section 102 of the  Controlled Substances                      Act),  including   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, any offense described                      in  section  1956  of  title  18,  United                      States  Code  (relating to  laundering of                      monetary  instruments),  or any  crime of                      violence  (as defined  in  section 16  of                      title   18,   United  States   Code,  not                      including a purely political offense) for                      which  the  term of  imprisonment imposed                      (regardless  of  any  suspension of  such                      imprisonment) is at least 5 years, or any                      attempt or conspiracy  to commit any such                      act.    Such  term  applies  to  offenses                      described   in   the  previous   sentence                      whether in violation  of Federal or State                      law,   and   also  applies   to  offenses                      described  in  the  previous sentence  in                      violation  of foreign  law for  which the                      term of imprisonment was completed within                      the previous fifteen years.                                         -3-            as  limited  to  aliens  who  are  returning  from  voluntary            absences  abroad,  concededly  the  statute,  apart from  the            amendment, applies equally to  resident aliens who are sought            to be deported.   This was established by Francis  v. I.N.S.,                                                      _______     ______            532 F.2d  268 (2d Cir. 1976).  The court there noted that the            manifest purpose was to qualify certain aliens who  had lived            here seven years  to seek a waiver, in  the discretion of the            Attorney General, of the exclusionary  consequence of various            prohibitions in   1182(a).  The court held that it would be a            denial  of equal  protection  to distinguish  between  aliens            seeking readmission and those resisting deportation, and that            consequently   212(c) must be  applied to include the latter.            The  limited wording of the statute has not been changed, but            the Second  Circuit's ruled  enlargement has  been recognized            ever  since.  Tapia-Acuna v.  I.N.S., 640 F.2d  223 (9th Cir.                          ___________     ______            1981).    E.g., Gouveia  v. I.N.S.,  980  F.2d 814  (1st Cir.                      ____  _______     ______            1992).   Petitioner's contention that this  ruling should not            apply to the  amendment is frivolous.  He  may seek a waiver,            but must fail if  his seven year imprisonment was  within the            statute.                      In  addition  to  this permanent  waiver,  the  INA            contained a presumption of  a temporary stay pending judicial            appeal,   106(a)(3), 8 U.S.C.   1105a(a)(3) (Supp. 1992), the            underlined words  having been  added by IMMACT    513(a), and            are to "apply to petitions to  review filed more than 60 days                                         -4-            after  the  date  of  enactment  of  the  statute."    IMMACT              513(b).                      The  service of  the petition  for review                      . . .  shall stay the  deportation of the                      alien   pending   determination  of   the                      petition by  the court, unless  the court                      otherwise directs or unless the  alien is                                        _______________________                      convicted  of  an  aggravated felony,  in                      _________________________________________                      which case the Service shall not stay the                      _________________________________________                      deportation   of    the   alien   pending                      _________________________________________                      determination  of  the  petition  of  the                      _________________________________________                      court unless the court otherwise directs.                      ________________________________________                      Finally,  on  December  12,   1991  by  the   TINA,              306(a)(11)(B), it  was provided  that the  IMMACT amendment            "shall apply to convictions entered before, on, or after such            date,"  and by    310(1), that  this latter  amendment "shall            take  effect  as  if  included   in  the  enactment  of   the            Immigration Act of 1990."                      The  Board's  opinion sustaining  the  denial of  a            waiver relied  on  Matter of  A-A-,  Interim Dec.  3176  (BIA                               _______________            1992),  which in  turn is  so persuasive  that we  could well            simply  agree,  but  we  will  further  comment  in  light of            petitioner's persistent  complaint.  There is,  of course, no            constitutional issue,  United States  v. Bodre, 948  F.2d 28,                                   _____________     _____            31-32  (1st Cir. 1991), cert. denied, 112 S. Ct. 1487 (1992);                                    ____________            the only question is  that of Congressional intent.   While a            presumption against  retroactivity prevails in the absence of            clearly contrary  indicia, Dion  v. Secretary of  H.H.S., 823                                       ____     ____________________            F.2d 669, 671  (1st Cir.  1987), one must  look at the  whole            picture.                                         -5-                      In Ayala-Chavez  v. I.N.S., 945 F.2d  288 (9th Cir.                         ____________     ______            1991) the court held  that only aggravated offenses committed            after November  18, 1988 receive the  negative presumption of            no  temporary  waiver  pending  appeal.   The  TINA  followed            promptly,    and   the   Ninth    Circuit   recognized   that              306(a)(11)(B)  was  intended   to  overrule   Ayala-Chavez.                                                            ____________            Arthurs v. I.N.S., 959  F.2d 142 (9th  Cir. 1992).  See  also            _______    ______                                   ___  ____            Ignacio v. I.N.S., 955 F.2d 295 (5th Cir. 1992); Matter of A-            _______    ______                                ____________            A-, supra.  The legislative history makes clear that this was            __  _____            fully recognized as a technical amendment for  clarification.            Actually  the amendment was introduced into and passed by the            Senate on August 1,  1991, prior to Ayala-Chavez.   137 Cong.                                                ____________            Rec.  S11,799-804.    Offering   the  bill,  Senator  Simpson            described  it  as  "truly  technical. . . .    The  Bill  was            developed  under  the following  rule:   If  any of  the four            Immigration Subcommittee's staffs [Republican and Democrat of            the House and Senate] found a provision controversial or non-            technical,  then  it  was removed."    Id  at  S11,799.   The                                                   __            following November  25, post Ayala-Chavez, an identical House                                         ____________            bill  passed.  Id.  at H11,245-251.  The  next day the Senate                           __            made minor  amendments, id.  at S18,506-514, which  the House                                    __            promptly accepted.  Id. at H11,485-493.  One of these changes                                __            was the addition of  the 'before, on, or after'  amendment to              513(b).                                         -6-                      We have  two reasons  for agreeing with  the Board.            In  the  first place,  we  believe  Ayala-Chavez was  wrongly                                                ____________            decided.    If  Congress  believed  seven  years'   residence            insufficient to entitle aliens to waivers if they had  served            five or more years  imprisonment for committing an aggravated            felony, it makes small sense that so substantial  a stricture            should not go into effect for five years from enactment.  The            presumption against a  retroactive interpretation is to  give            fair warning so that a party may avoid consequences.  This is            scarcely  a situation calling for  any such a  warning.  Five            years   free  time  would   be  extraordinarily  considerate,            particularly for the undeserving.                      In addition,  as we  study the legislation  and the            legislative  history,  we  believe  that   although  Congress            amended  only    513(b),   its  failure  to  amend     511(b)            correspondingly was a simple oversight.  We do not believe it            necessary, however, to detail  further the several steps that            lead us to that conclusion.                      Affirmed.                      ________                                         -7-
