
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1044                             LUIS JAVIER MOSQUERA-PEREZ,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                          ON PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Nancy B. Norman for petitioner.            _______________            Robert  Kendall, Assistant  Director,  Civil Division,  Office  of            _______________        Immigration Litigation, with whom Stuart E. Schiffer, Acting Assistant                                          __________________        Attorney General, Civil Division, was on brief for respondent.                                 ____________________                                  September 10, 1993                                 ____________________                    CYR, Circuit  Judge.  Petitioner Luis  Javier Mosquera-                    CYR, Circuit  Judge.                         ______________          Perez ("Mosquera"), a resident  alien convicted of an "aggravated          felony," challenges  a final  order of  the Board of  Immigration          Appeals  ("BIA") denying  his  application for  a withholding  of          deportation.  We deny the petition for review.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Mosquera, a  citizen of  Colombia,  entered the  United          States  in  June,  1980, and  became  a  permanent  United States          resident in May, 1989.  See 8 U.S.C.   1255(a).   On May 3, 1990,                                  ___          he  was convicted of  possessing one-half ounce  of cocaine, with          intent  to distribute,  in violation  of Mass.  Gen. L.  ch. 94C,            32A.   Mosquera received  a suspended thirty-month  prison sen-          tence and three years' probation, with community service.                    On  January 3,  1991, the  Attorney  General issued  an          order  to show cause  why Mosquera should  not be deported  as an          alien convicted of an "aggravated  felony," pursuant to 8  U.S.C.            1251(a) (2)(A)(iii),  (B)(i),1 based on his  Massachusetts drug                                        ____________________               1Section 1251 provides, in relevant part:               (a)  Classes of deportable aliens.   Any alien . . . in                    the  United States  shall, upon  the order  of the                    Attorney  General,  be deported  if  the  alien is                    within  one or  more of  the following  classes of                    deportable aliens:                    . . . .                    (2)  Criminal offenses.                         (A)  General Crimes                         . . .                               (iii) Aggravated felony.  Any  alien who          conviction.    At a  preliminary  hearing  before an  Immigration          Judge, Mosquera was  found deportable and, as  an alien convicted          of an aggravated felony,  ineligible for either political asylum,          see 8 U.S.C.    1158(d),2 or withholding  of deportation,3 see  8          ___                                                        ___          U.S.C.   1253(h).  The BIA affirmed.                                        ____________________                              is convicted of an aggravated  felony at                              any time after entry is deportable.                              . . . .                          (B) Controlled substances                              . . .                               (i) Conviction.   Any  alien who at  any                              time after entry has been convicted of a                              violation of (or a conspiracy or attempt                              to violate)  any law or  regulation of a                              State,  the United States,  or a foreign                              country  relating  to a  controlled sub-                              stance . . . other than a single offense                              involving possession for  one's own  use                              of 30  grams  or less  of marijuana,  is                              deportable.          8 U.S.C.   1251(a)(2)(A)(iii), (B)(i).               2Section 1158(d) provides:  "An alien who has been convicted          of  an aggravated felony  . . . may not  apply for or  be granted          asylum."  8 U.S.C.   1158(d).   Section 1158(d) was added  to the          Immigration and Nationality Act by the Immigration Act of 1990.               3Asylum and withholding of deportation are distinct forms of          relief for aliens  facing persecution  in the  nation of  origin.          The Attorney General has discretion to grant asylum, see 8 U.S.C.                                                               ___            1158(a); withholding of deportation, in contrast,  is mandatory          when  deportation  to  a  particular nation  would  threaten  the          alien's life or freedom on  account of race, religion, nationali-          ty, membership in a particular  social group, or political  opin-          ion, see 8 U.S.C.   1253(h)(1).  Asylum confers broader  benefits               ___          than a withholding of  deportation:  an alien granted  asylum may          become a lawful permanent resident; withholding of deportation is          "country-specific," in the sense  that deportation to a "hospita-          ble" country is not precluded.  In re Salim, 18 I. & N. Dec. 311,                                          ___________          315 (1982); see  INS v.  Cardoza-Fonseca, 480 U.S.  421, 428  n.6                      ___  ___     _______________          (1987).                                          3                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Our jurisdiction  is founded  in Section 106(a)  of the          Immigration and  Nationality  Act ("INA"),  8 U.S.C.    1105a(a).          See Ravindran v. INS, 976 F.2d 754, 756 (1st Cir. 1992); Alvarez-          ___ _________    ___                                     ________          Flores v. INS, 909 F.2d 1,  2 (1st Cir. 1990).  Mosquera concedes          ______    ___          that the  conduct underlying his state-law conviction constituted          an "aggravated felony" under the INA, see 8 U.S.C.   1101(a)(43),                                                ___          and  that he is therefore precluded from applying for asylum, see                                                                        ___          8 U.S.C.   1158(d).  He contends, nonetheless, that his aggravat-          ed felony conviction does not  preclude a withholding of deporta-          tion under 8 U.S.C.   1253(h)(2)(B).4          A.   Effect of Aggravated Felony Conviction on          A.   Effect of Aggravated Felony Conviction on               Eligibility for Withholding of Deportation               Eligibility for Withholding of Deportation               __________________________________________                    Whether an aggravated  felony conviction constitutes an          absolute bar to withholding of deportation under section                                         ____________________               4Mosquera initially asserted a procedural due  process claim          as well.  He argued that he was entitled to present evidence that          he  was not a "danger to the  community," even though he had been          convicted  of an  "aggravated felony."   The evidence  would have          shown  that the  Massachusetts drug  conviction involved  a small          amount of cocaine, that  he had no prior arrests  or convictions,          and that he  has strong family and  community ties in  the United          States.   The Fifth Amendment  claim was abandoned  at oral argu-          ment.               In addition, Mosquera's reply  brief on appeal attempted for          the first time to  raise an equal protection claim  that applica-          tion  of the  Frentescu multi-factor  test exclusively  to aliens                        _________          convicted  of crimes  other than  aggravated felonies  creates an          unconstitutional classification.   See  infra at  pp. 11-13.   As                                             ___  _____          this  claim was not  presented to the BIA,  we decline to address          it.  See  Massachusetts, Dep't  of Pub. Welfare  v. Secretary  of               ___  _____________________________________     _____________          Agric., 984 F.2d 514, 523-24 (1st Cir. 1993) (discussing adminis-          ______          trative waiver).                                          4          1253(h)(2)(B) presents a pure issue of statutory construction for          plenary review, see Skidgel  v. Maine Dept. of Human  Servs., 994                          ___ _______     ____________________________          F.2d  930 (1st Cir.  1993), and an  issue of  first impression in          this circuit.  We employ traditional tools of statutory construc-          tion  for determining  congressional intent,  see Dole  v. United                                                        ___ ____     ______          Steelworkers  of America, 494 U.S. 26, 35 (1989) (quoting NLRB v.          ________________________                                  ____          Food and Commercial Workers, 484 U.S. 112, 123 (1987)), beginning          ___________________________          with the language of the statute.                    We "assume  that the ordinary meaning  of the statutory          language accurately expresses  the legislative purpose,"  Stowell                                                                    _______          v. Ives, 976  F.2d 65,  69 (1st  Cir. 1992)  (quoting Morales  v.             ____                                               _______          Trans  World Airlines, Inc.,  __ U.S. __,  112 S. Ct.  2031, 2036          ___________________________          (1992)), and we "resort to the legislative history and other aids          of statutory  construction  only when  the literal  words of  the          statute create  ambiguity or lead to an unreasonable result," id.                                                                        ___          (quoting United States v.  Charles George Trucking Co.,  823 F.2d                   _____________     ___________________________          685,  688 (1st Cir. 1987)).   If the statutory language makes the          intent  of Congress clear and unambiguous, we give full effect to          that  intent; if the statute is "silent or ambiguous with respect          to the specific issue," however, we do not simply impose  our own          construction  on the statute, but give due deference to the BIA's          interpretation of the  INA unless it is arbitrary, capricious, or          manifestly contrary  to  the statute.   Chevron  U.S.A., Inc.  v.                                                  _____________________          Natural  Resources Defense  Council, Inc.,  467 U.S.  837, 842-45          _________________________________________          (1984); see also INS  v. Cardoza-Fonseca, 480 U.S. 421,  445 n.29                  ___ ____ ___     _______________          (1987);  Alvarez-Flores,  909 F.2d  at  3.   Nonetheless,  "[t]he                   ______________                                          5          judiciary is the final authority on issues of statutory construc-          tion  and  must  reject administrative  constructions  which  are          contrary to  clear congressional intent."   Chevron, 467  U.S. at                                                      _______          843 n.9.                    Section 1253(h) provides as follows:                    (1)  The Attorney General shall not deport or                    return any  alien . . .  to a country  if the                    Attorney General determines that such alien's                    life  or freedom would  be threatened in such                    country on account of race, religion, nation-                    ality,  membership  in  a  particular  social                    group, or political opinion.                    (2)  Paragraph  (1) shall  not  apply  to any                    alien if the Attorney General determines that                                                  __________                                          . . .                     (B)  the alien,  having  been convicted  by a                                     ______  ____ _________  __ _                    final  judgment  of  a  particularly  serious                    _____  ________  __  _  ____________  _______                    crime,  constitutes a danger to the community                    _____   ___________ _ ______ __ ___ _________                    of the United States;                    __ ___ ______ ______                    . . . .                    For  purposes of  subparagraph (B),  an alien                    ___  ________ __  ____________ ___   __ _____                    who has been convicted of an aggravated felo-                    ___ ___ ____ _________ __ __ __________ _____                    ny shall  be considered to  have committed  a                    __ _____  __ __________ __  ____ _________  _                    particularly serious crime.                    ____________ _______ ______          8  U.S.C.    1253(h)  (emphasis  added).   Mosquera  argues  that          section  1253(h)(2)(B)  contemplates   a  two-part  analysis  for          determining whether  an alien is precluded from  a withholding of          deportation:   once  it  is determined  that  an alien  has  been          convicted of  a "particularly serious crime,"  a separate factual          determination must be made  that the alien poses a danger  to the          community of the United States.5                                        ____________________               5The Fifth,  Ninth, and Eleventh Circuits  have rejected the          contention  that   1253(h)(2)(B) requires  the dual showing urged          by  Mosquera.  See Urbina-Mauricio v. INS, 989 F.2d 1085, 1087-88                         ___ _______________    ___          (9th Cir. 1993); Martins  v. INS, 972 F.2d 657,  660-61 (5th Cir.                           _______     ___          1992); Arauz v. Rivkind, 845 F.2d 271, 275 (11th Cir. 1988).  The                 _____    _______                                          6               1.   Plain Language of Section 1253(h)(2)(B)               1.   Plain Language of Section 1253(h)(2)(B)                    _______________________________________                    Mosquera contends that the phrase "having been convict-          ed  . . . of  a  particularly serious  crime"  modifies the  word          "alien" and thus narrows the universe of aliens who may be deter-                           _______          mined a "danger to the community."  Mosquera further insists that          a  contextual  comparison  of  section 1253(h)  with  the  asylum          provisions  in section  1158(d) demonstrates  that  Congress well          understood how  to legislate a  per se  bar to eligibility  for a                                          ___ __          withholding of  deportation had it so intended.6   We agree.  But          we think  the statutory language is more  ambiguous than Mosquera          suggests.                    Mosquera  asks, with  considerable  logical force,  why          Congress would have included the "danger to the community" clause          at all if it intended  that an alien's conviction of "a  particu-          larly serious crime" be dispositive and that there be no separate          determination that the  alien poses  a danger  to the  community.          See  Allende v. Shultz, 845 F.2d  1111, 1119 (1st Cir. 1988) ("'A          ___  _______    ______          familiar canon  of statutory  construction cautions the  court to          avoid interpreting  a statute in such a way as to make part of it                                        ____________________          Eleventh Circuit addressed the issue before   1253(h) was amended          by the Immigration  Act of 1990, however.  See  infra p. 12 (dis-                                                     ___  _____          cussing 1990 amendment).               6Mosquera also argues that the BIA's interpretation  ignores          the statutory language requiring  a determination by the Attorney                                              _____________          General, since  no further determination would  be necessary once          an alien had been convicted of  an aggravated felony.  We are not          persuaded.  Mosquera overlooks  the fact that section 1253(h)(2)-          (B) requires the  Attorney General to  determine, in every  case,          whether an alien was  convicted of an aggravated felony  (or some          other "particularly  serious crime") and whether  the judgment of                                               ___          conviction is final.                                          7          meaningless. . . .'") (quoting Abourezk v. Reagan, 785 F.2d 1043,                                         ________    ______          1054 (D.C. Cir. 1986)); United States v. Ven-Fuel, Inc., 758 F.2d                                  _____________    ______________          741, 751 (1st Cir.  1985) ("All words and provisions  of statutes          are  intended to have meaning and are  to be given effect, and no          construction should be adopted which would render statutory words          or  phrases meaningless,  redundant  or superfluous.").   On  the          other hand,  as the government argues,  had Congress intended two          separate determinations, surely it  could have made its intention          plain, simply by writing  section 1253(h)(2)(B) with "two coordi-          nate  clauses joined by a conjunction," viz., "the alien has been                                                  ___          convicted by a final judgment of a particularly serious crime and                                                                        ___          constitutes  a danger  to  the community  of the  United States."          Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987) (empha-          _____________    ___          sis added); see Zardui-Quintana v.  Richard, 768 F.2d 1213,  1222                      ___ _______________     _______          (11th  Cir. 1985)  (Vance, J.  concurring in result)  (same); see                                                                        ___          also Martins v. INS, 972 F.2d  657, 660-61 (5th Cir. 1992); Arauz          ____ _______    ___                                         _____          v. Rivkind, 845 F.2d  271, 275 (11th Cir. 1988);  Crespo-Gomez v.             _______                                        ____________          Richard,  780  F.2d  932,  934   (11th  Cir.  1986).    Moreover,          _______          Mosquera's contextual argument is counterbalanced by the presence          of 8  U.S.C.   1226(e)(2)-(3),  governing parole for  aliens con-          victed of aggravated felonies, which establishes various criteria          for assessing recidivism  to guide the Attorney General in deter-          mining whether aggravated felons will pose a  danger to society.7                                        ____________________               7The Attorney General may release  an alien whose country of          origin  denies or unduly delays acceptance of the alien, but only          if "a procedure  for review of  each request for relief  has been          established,"  the  procedure  "includes  consideration   of  the          severity of the felony  committed by the alien," and  "the review                                          8          Thus,  in a  closely  analogous  context, section  1226(e)(2)-(3)          demonstrates congressional cognizance of  its option to require a          separate  determination  of  dangerousness  to the  community  in          regard to aliens who apply for withholding of deportation follow-          ing  an aggravated felon  conviction.  As  the statutory language          does not clearly and unambiguously favor either interpretation of          section 1253(h), we turn to the legislative history.               2.  Legislative History               2.  Legislative History                   ___________________                    Mosquera invites our  attention to two  particular com-          ponents of the legislative history of section 1253(h).  First, he          cites several unenacted bills  which would have imposed a  per se                                                                     ___ __          ban  on withholding deportation of aggravated felons.  Second, he          cites a letter to the INS  from Senator Edward M. Kennedy, Chair-          man of the Senate Subcommittee on Immigration and Refugee Affairs          and a cosponsor  of the Immigration Act  of 1990, see  infra note                                                            ___  _____          11,  to  the  effect  that Congress,  in  section  1253(h)(2)(B),          contemplated  that a  showing of  dangerousness to  the community          would  be  necessary in  addition to  proof  of conviction  of an          aggravated felony.                    Before we evaluate these particular developments, it is          helpful  to  place  section  1253(h)  in historical  perspective.          Prior  to 1980,  section  1253(h) conferred  discretion upon  the          Attorney  General to  withhold the deportation  of any  alien who                                        ____________________          concludes that the alien will not pose a danger to  the safety of          other persons or property."  8 U.S.C.   1226(e)(2)-(3).   Section          1226(e)(2)-(3), like    1253(h)(2)(b), was added  by the Immigra-          tion Act of 1990.                                          9          would  be subject  to  persecution  in  the receiving  nation  on          account of race, religion, or political opinion.  The Refugee Act          of 1980, Pub.  L. 96-212,  94 Stat. 107  (1980), amended  section          1253(h) to comport with Article 33 of the United Nations Protocol          Relating to  the Status of Refugees  ("Protocol"), Jan. 31, 1967,          19 U.S.T. 6223 (1968), to which the United States  had acceded in          1968.  The Protocol  bound its parties to the  substantive provi-          sions of Articles 2  through 34 of the United  Nations Convention          Relating to the Status of Refugees ("Convention"), July 28, 1951,          189 U.N.T.S. 150.8  Article 33 of the Convention provides:                    1.   No Contracting State shall expel  or re-                         turn  ("refouler") a refugee in any man-                         ner whatsoever to  the frontiers of ter-                         ritories where his life or freedom would                         be  threatened on  account of  his race,                         religion,  nationality, membership  of a                         particular  social  group  or  political                         opinion.                    2.   The benefit of the present provision may                         not,  however, be  claimed by  a refugee                         for  whom  there are  reasonable grounds                         for regarding as a danger to the securi-                         ty  of the  country in  which he  is, or                         who,  having been  convicted by  a final                         judgment   of  a   particularly  serious                         crime,  constitutes a danger to the com-                         munity of that country.          19 U.S.T. at 6276.9                                        ____________________               8The United States is not a signatory to the Convention.               9Following the passage of the  Refugee Act of 1980,  section          1253(h) read:               (1)  The Attorney  General shall  not deport or  return                    any alien (other than [certain aliens who partici-                    pated in  the Nazi persecution or  genocide]) to a                    country  if the  Attorney General  determines that                    such alien's  life or freedom would  be threatened                                          10                    Between  1980  and  1990, the  operative  standard  for          determining which crimes were  "particularly serious" for section          1253(h)(2)(B)  purposes was that  set forth by  the BIA  in In re                                                                      _____          Frentescu, 18 I. & N. Dec. 244 (1982):          _________                    While there are crimes which, on their  face,                    are "particularly serious crimes"  or clearly                    are  not  "particularly serious  crimes," the                    record in most  proceedings will  have to  be                    analyzed on a case-by-case basis.  In judging                    the seriousness  of a crime, we  look to such                    factors as the nature  of the conviction, the                    circumstances  and  underlying  facts of  the                    conviction,  the  type  of sentence  imposed,                    and,  most importantly, whether  the type and                    circumstances  of the crime indicate that the                    alien will be a danger to the community.                                                  ____________________                    in  such  country on  account  of race,  religion,                    nationality,  membership  in  a particular  social                    group, or political opinion.                    (2)  Paragraph  (1)  shall not  apply  to any                         alien if the Attorney General determines                         that                            (A)  the    alien    ordered,   incited,                              assisted, or otherwise participated                              in the persecution of any person on                              account of  race, religion, nation-                              ality,  membership in  a particular                              social group, or political opinion;                         (B)  the alien, having been convicted by                              a final judgment of  a particularly                              serious crime, constitutes a danger                              to  the  community  of  the  United                              States;                         (C)  there are serious reasons  for con-                              sidering that the alien has commit-                              ted  a  serious nonpolitical  crime                              outside the United States  prior to                              the  arrival  of the  alien  in the                              United States; or                         (D)  there  are  reasonable grounds  for                              regarding  the alien as a danger to                              the security of the United States.          8 U.S.C.   1253(h) (1980).                                          11          Id.  at  247.   Once an  alien's  crime was  deemed "particularly          ___          serious,"  however, the  BIA interpreted  section 1253(h)  as not                              ___  ___ ___________  _______ _______  __ ___          requiring a separate determination that the alien posed  a danger          _________ _ ________ _____________ ____ ___ _____ _____  _ ______          to the community.   In re  Carballe, 19 I. &  N. Dec. 357  (1986)          __ ___ _________    _______________          ("The phrase  'danger to the community'  is an aid to  defining a          'particularly serious crime,'  not a mandate  that administrative          agencies or the courts  determine whether an alien will  become a          recidivist.")  modified on other grounds, In re Gonzalez, 19 I. &                         _________________________  ______________          N. Dec. 682 (1988).                    The Immigration  Act of 1990, Pub. L.  No. 101-649, 104          Stat.  4978, 5053  (1990),  obviated the  Frentescu analysis  for                                                    _________          aggravated  felonies  by  appending  the  following  paragraph to          section 1253(h):                    For  purposes of  subparagraph (B),  an alien                    who has been convicted of an aggravated felo-                    ny shall  be considered  to have  committed a                    particularly serious crime.          8 U.S.C.   1253(h)  (1993).10   The BIA has  continued to  follow          Carballe since the  1990 amendment to section 1253(h), by requir-          ________          ing  no separate finding of dangerousness to the community in the          case of an alien convicted  of an aggravated felony.  See,  e.g.,                                                                ___   ____          Matter  of A---  A---, Int.  Dec. 3176  (B.I.A. 1992);  Matter of          _____________________                                   _________                                        ____________________               10An  "aggravated felony"  includes  "any  drug  trafficking          crime  as defined in [18  U.S.C.   924(c)(2)]."   8 U.S.C.   1101          (a)(43)  (1993).   A  "drug  trafficking  crime" is  "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.)."  18 U.S.C.   924(c)(2).                                   __ ____                                          12          K---, Int. Dec. 3163 (B.I.A. 1991); Matter of U---M---, Int. Dec.          ____                                __________________          3152 (B.I.A. 1991).                    The  unenacted  bills  to  which Mosquera  directs  our          attention  would have added a paragraph to the list of exclusions          in section 1253(h)(2), making withholding of deportation unavail-          able to aliens convicted of an "aggravated felony."  See S. 2957,                                                               ___          101st  Cong., 2d  Sess.   12  (1990); S.  2652, 101st  Cong., 2nd          Sess.   6112 (1990); H.R. 5284, 101st Cong., 2d Sess.   5 (1990).          Mere nonadoption of  these legislative bills is  not probative of          congressional intent in  this instance, however, since  "'several          equally  tenable inferences'  may  be drawn  from such  inaction,          'including the inference[,] [eminently reasonable here,] that the          existing legislation already  incorporated the offered  change.'"          Pension  Benefit Guaranty Corp. v.  LTV Corp., 496  U.S. 633, 650          _______________________________     _________          (1989) (quoting United States v. Wise, 370 U.S. 405, 411 (1962));                          _____________    ____          see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 382 n.11          ___ ____ _________________________    ___          (1969) ("unsuccessful attempts at legislation are not the best of          guides to legislative intent").  In these circumstances, it is no          less reasonable to  infer that the  proposed amendment failed  of          adoption because Congress  was satisfied with  the administrative          and  judicial construction  then being  given  section 1253(h)(2)          than to assume  that Congress intended to signal its dissatisfac-          tion with the prevailing construction.                    Mosquera refers  us to a letter from Senator Kennedy to          the INS, apparently suggesting that the BIA's current interpreta-                                          13          tion of  section 1253(h)  is contrary to  congressional intent.11          As a general rule, however, post-enactment legislative history is          accorded less weight than contemporaneous  commentary.  Ellenwood                                                                  _________          v.  Exxon Shipping Co., 984 F.2d 1270, 1277 n.8 (1st Cir.), cert.              __________________                                      _____          denied, ___ U.S.  ___, 113 S. Ct. 2987 (1993);  cf. Regional Rail          ______                                          ___ _____________          Reorganization Act Cases, 419  U.S. 102, 132 (1974) (post-passage          ________________________          remarks cannot change Congress' intent).  Even if we were to give          weight  to this letter, it  would be counterbalanced  by the pre-          passage legislative history.12  Thus,  our survey of the legisla-          tive history of the Refugee Act  of 1980 and the Immigration  Act          of 1990 yields no clear support for Mosquera's proposed interpre-          tation of section 1253(h).  Indeed, the Fifth  Circuit, consider-          ing the identical  question in  Martins, 972 F.2d  at 661,  found                                          _______          unambiguous support for the  BIA's interpretation in the legisla-          tive  history accompanying the Refugee  Act.  See  supra note 12;                                                        ___  _____                                        ____________________               11Mosquera  simply cites to Martins, 972  F.2d at 661, which                                           _______          referenced Senator Kennedy's letter:                    Martins'  congressional  intent  argument  is                    based  on a  letter to  the INS  from Senator                    Edward Kennedy[] . . . . The  letter suggests                    that Congress intended to  require the INS to                    make a  dual showing  of a conviction  for an                    aggravated  felony  and   a  danger  to   the                    community.          Id. at 661.          ___               12The Fifth Circuit found  this argument "in direct conflict          with  the  legislative  history  accompanying  the  Refugee  Act"          inasmuch as the House  Judiciary Committee Report, H.R. Rep.  No.          608, 96th Cong., 1st Sess. 18 (1979) "clearly states that the act          intended to make  those aliens[]  'who have been  convicted of  a          particularly  serious crime  which  makes them  a  danger to  the          community[]' ineligible  for a withholding of  deportation."  Id.                                                                        ___          (quoting H.R. Rep. No. 608, 96th Cong., 1st Sess. 18 (1979)).                                          14          see also Zardui-Quintana, 768 F.2d at 1220-23 (Vance, J., concur-          ___ ____ _______________          ring).          3.   Reasonableness of Agency Interpretation               Reasonableness of Agency Interpretation               _______________________________________                    Since our  examination of the language,  structure, and          history  of section  1253(h) discloses  no clear  and unambiguous          contrary legislative intent, the BIA's interpretation is entitled          to deference unless arbitrary, capricious, or manifestly contrary          to the statute.  Chevron, 467 U.S. at 842-45.                           _______                    Mosquera argues  that  the  BIA's  decision  is  poorly          reasoned  and  inconsistent  with  prior  Board  decisions,  thus          entitled to no deference.  Mosquera concedes that the BIA consis-          tently has interpreted section  1253(h), before and since passage          of the Immigration Act  of 1990, as requiring but  one determina-          tion     that  the alien  has been  convicted of  a "particularly          serious crime,"  see Carballe, 19  I. & N. Dec.  at 357.   But he                           ___ ________          contends that a separate finding of dangerousness to the communi-          ty was not necessary  prior to 1990 because the  Frentescu multi-                                                           _________          factor  test for  identifying "particularly  serious crimes"  re-          quired  the Attorney  General  to consider  dangerousness to  the          community.   He argues that nothing in the legislative history of          the Immigration  Act suggests  that Congress, simply  by equating          aggravated felonies with  "particularly serious crimes," intended          to dispense  with agency consideration of  the alien's dangerous-          ness  to the  community.   He  notes that  the  BIA continues  to          conduct  individualized  "dangerousness" determinations  in cases          involving  crimes not  classified  in 8  U.S.C.   1101(a)(43)  as                                          15          "aggravated felonies."  See, e.g., Matter of B---, Int. Dec. 3164                                  ___  ____  ______________          (B.I.A. 1991)  (Frentescu analysis  used to determine  whether an                          _________          "aggravated  battery"   was  a  "particularly   serious  crime").          According  to Mosquera,  the BIA's  position is  based  on faulty          reasoning in conflict with the  statutory language.  He  commends          instead the  reasoning adopted by  the Ninth Circuit  in Beltran-                                                                   ________          Zavala  v. INS,  912 F.2d 1027  (9th Cir. 1990),  where the court          ______     ___          held that "the language of 8 U.S.C.   1253(h)(2)(B) as interpret-          ed in Frentescu, commits the BIA to an analysis of the character-                _________          istics and  circumstances of  the  alien's conviction."   Id.  at                                                                    ___          1032.  We  are not persuaded.  To be sure,  the Ninth Circuit did          note in  Beltran-Zavala, prior to  the 1990 amendment  to section                   ______________          1253(h),  that "[i]f Congress wanted  to erect per se classifica-                                                         ___ __          tions of  crimes precluding immigration and nationality benefits,          it knew  how to  do so."   Id.   Thereafter, however,  in Urbina-                                     ___                            _______          Mauricio v. INS,  989 F.2d 1085, 1088 (9th Cir.  1993), the court          ________    ___             effectively  overruling  Beltran-Zavala     acknowledged  that             ___________  __________  ______________          Congress  had indeed enacted just such a per se classification by                                                   ___ __          its 1990 amendment to section 1253(h)(2)(B).                    The focal  inquiry  under  Frentescu  before  1990  was                                               _________          "whether the  type and circumstances  of the crime  indicate that          the alien will be a danger to the community," Frentescu,  18 I. &                                                        _________          N. Dec. at 248; danger to the community inhered in the definition          of "particularly serious  crime" and  no independent  "dangerous-          ness"  determination was  necessary under  section 1253(h)(2)(B).          Since  Congress is presumed to have been "aware of an administra-                                          16          tive or judicial interpretation of a statute, Lorillard v.  Pons,                                                        _________     ____          434 U.S. 575, 580 (1977), it is reasonable to infer that Congress          intended the  1990 amendment  to equate aggravated  felonies with          "danger  to  the  community,"  obviating  a  redundant  Frentescu                                                                  _________          inquiry in cases involving aggravated felonies.                    The interpretation of  section 1253(h)(2)(B) adopted by          the BIA is  not unreasonable, arbitrary,  or capricious.   Conse-          quently,  the refusal  to conduct  a  separate inquiry  into Mos-          quera's dangerousness to the community was proper.                    The petition for review is denied.                    The petition for review is denied.                    _________________________________                                          17
