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
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
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
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)
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
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.
17