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  &amp;
                                                                  
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-
