Ledezma-Galicia v. Holder

Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RAMON LEDEZMA-GALICIA, 
Petitioner,
No. 03-73648
v.
 Agency No.
ERIC H. HOLDER, Jr.,* Attorney A38-883-099
General,
Respondent.


RAMON LEDEZMA-GALICIA, 
Petitioner-Appellant,
v. No. 04-35048
PHILLIP C. CRAWFORD; ERIC H.  D.C. No.
CV-03-01316-REJ
HOLDER, Jr.,* Attorney General;
JANET NAPOLITANO,** Secretary of OPINION
Homeland Security,
Respondents-Appellees.

On Petition for Review of an Order of the
Board of Immigration Appeals

Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding

*Eric H. Holder, Jr., is substituted for his predecessor, Michael
Mukasey, as Attorney General of the United States, pursuant to FED. R.
APP. P. 43(c)(2).
**Janet Napolitano is substituted for her predecessor, Michael Chertoff,
as Secretary of Homeland Security, pursuant to FED. R. APP. P. 43(c)(2).

4989
4990 LEDEZMA-GALICIA v. HOLDER
Argued and Submitted
March 7, 2005—Portland, Oregon

Submission Withdrawn March 9, 2005
Resubmitted March 22, 2010

Filed March 29, 2010

Before: Stephen Reinhardt, Marsha S. Berzon, and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Berzon;
Dissent by Judge Bybee
4994 LEDEZMA-GALICIA v. HOLDER

COUNSEL

Stephen W. Manning and Jessica M. Boell, Immigrant Law
Group LLP, Portland, Oregon, for the petitioner/petitioner-
appellant.

Peter D. Keisler, Assistant Attorney General, Civil Division,
and David V. Bernal, Assistant Director, Ernesto H. Molina,
Jr., Senior Litigation Counsel, and Leslie McKay, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent/respondent-
appellee.

OPINION

BERZON, Circuit Judge:

Ramon Ledezma-Galicia, a lawful permanent resident
alien, was convicted in an Oregon state court in September
 LEDEZMA-GALICIA v. HOLDER 4995
1988 of sodomy, for sexually molesting a minor. Current law
provides that “sexual abuse of a minor” is an “aggravated fel-
ony” as defined by 8 U.S.C. § 1101(a)(43)(A), and therefore
grounds for removal under 8 U.S.C. § 1227(a)(2)(A)(iii).1
Ledezma-Galicia does not dispute that his crime is an aggra-
vated felony. Instead, the question before us is whether
Ledezma-Galicia may now be removed from the country
based on his 1988 conviction, even though he would not have
been deportable for that crime — or for any aggravated felony
— at the time of his conviction. We conclude that he may not
be removed, because (1) the 1988 law that made aliens
deportable for aggravated felony convictions did not apply to
convictions prior to November 18, 1988; and (2) neither Con-
gress’s overhaul of the grounds for deportation in 1990 nor its
rewrite of the definition of aggravated felony in 1996 erased
that temporal limitation.

I. BACKGROUND

A. Overview

Ledezma-Galicia entered the United States in 1979 and
became a lawful permanent resident on February 12, 1985. In
June 1987, Ledezma-Galicia molested a ten-year-old girl. He
was subsequently charged with sodomy in the first degree, in
violation of Or. Rev. Stat. § 163.405, and rape in the first
degree, in violation of Or. Rev. Stat. § 163.375. In exchange
for dismissal of the rape charge, Ledezma-Galicia pleaded
guilty to the sodomy count and admitted in his guilty plea that
he had sexual intercourse with a minor. On September 16,
1988, he was sentenced to eight months in custody.

In April of 2003, the Bureau of Immigration and Customs
Enforcement charged Ledezma-Galicia with removability
because of his 1988 conviction. See Ledezma-Galicia v.
1
Unless otherwise stated, all references to the United States Code are to
the 2000 edition.
4996 LEDEZMA-GALICIA v. HOLDER
Crawford, 294 F. Supp. 2d 1191, 1193 (D. Or. 2003) (summa-
rizing the factual background). Under current law, sexual
abuse of a minor is an aggravated felony, 8 U.S.C.
§ 1101(a)(43)(A), and a conviction for an aggravated felony
renders an alien removable,2 8 U.S.C. § 1227(a)(2)(A)(iii).
But that was not the case when Ledezma-Galicia was con-
victed. See 8 U.S.C. § 1251(a) (1982) (listing grounds for
deportation). To determine whether Ledezma-Galicia can now
be deported because of his 1988 conviction requires a journey
through the last twenty years of immigration law reform.

Three laws are relevant to our inquiry, all of which
amended the Immigration and Nationality Act (“INA”): the
Anti-Drug Abuse Act of 1988 (“ADAA” or “1988 Act”), Pub.
L. No. 100-690, 102 Stat. 4181; the Immigration Act of 1990
(“IMMAct” or “1990 Act”), Pub. L. No. 101-649, 104 Stat.
4978; and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA” or “1996 Act”), Pub.
L. No. 104-208, div. C, 110 Stat. 3009-546. Because
Ledezma-Galicia’s conviction occurred before all three enact-
ments, the retroactivity of the currently applicable aggravated
felony removal ground, 8 U.S.C. § 1227(a)(2)(A)(iii),3 to pre-
ADAA convictions is central to our inquiry. That inquiry
focuses, in turn, on the interplay between the current aggra-
vated felony removal provision, a temporal limitation in the
1988 ADAA, a savings clause in the 1990 IMMAct, and an
effective date provision in the 1996 IIRIRA.
2
The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) “eliminated the distinction between deportation and exclu-
sion proceedings, replacing them with a new, consolidated category —
‘removal.’ ” Salgado-Diaz v. Ashcroft, 395 F.3d 1158, 1162 (9th Cir.
2005). Because we are here concerned with both pre-IIRIRA and post-
IIRIRA law, and because there is no material difference here relevant, we
use the terms interchangeably.
3
Section 1227(a)(2)(A)(iii) provides: “Any alien who is convicted of an
aggravated felony at any time after admission is deportable.”
 LEDEZMA-GALICIA v. HOLDER 4997
Ledezma-Galicia argues that the ADAA, which limited
aggravated felony deportations to post-ADAA convictions,
protects him from being deported based on his pre-ADAA
conviction. The Attorney General maintains, in contrast, that
the ADAA is not relevant to Ledezma-Galicia’s circum-
stances, because its temporal limitation on the aggravated fel-
ony ground of deportation did not survive the later passage of
the IMMAct in 1990 and of IIRIRA in 1996. Applying the
heavy presumption against repeals by implication, see Nat’l
Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 662-64 (2007); Radzanower v. Touche Ross & Co., 426
U.S. 148, 153-54 (1976), we agree with Ledezma-Galicia that
the ADAA’s temporal limitation remains in effect as an
exception to other temporal provisions enacted later, and pre-
cludes his deportation.

B. The ADAA of 1988

The ADAA of 1988 made a series of amendments to the
INA. In it, Congress, for the first time, both created the cate-
gory of crimes denominated “aggravated felonies,” ADAA
§ 7342, 102 Stat. at 4469-70, and provided that any alien who
was convicted of an “aggravated felony” at any time after
entering the United States was subject to deportation. Id. at
§ 7344(a), 102 Stat. at 4470-71 (adding aggravated felony
convictions to the statutory list of grounds for deportation);4
see also Leocal v. Ashcroft, 543 U.S. 1, 4 n.1 (2004) (tracing
the origins of the term “aggravated felony”).

At the time it was enacted in 1988, the ADAA did not
make Ledezma-Galicia deportable, for two reasons: First, the
ADAA defined only murder, illegal drug trafficking, and fire-
arm and destructive device trafficking offenses — not sexual
4
ADAA § 7344(a) provided in full: “Section 241(a)(4) [of the Immigra-
tion and Nationality Act] (8 U.S.C. 1251(a)(4)) is amended — (2) [sic] by
inserting after the semicolon the following: ‘or (B) is convicted of an
aggravated felony at any time after entry;’.”
4998 LEDEZMA-GALICIA v. HOLDER
abuse of a minor — as aggravated felonies. See ADAA § 7342.5
Second, the ADAA was enacted on November 18, 1988, just
over two months after Ledezma-Galicia was convicted of the
underlying sodomy offense at issue here. A temporal limita-
tion in the ADAA expressly constrained the applicability of
the new aggravated felony removal ground, providing:

The amendments made by [§ 7344(a) to INA
§ 241(a)(4)] shall apply to any alien who has been
convicted, on or after the date of the enactment of
this Act, of an aggravated felony.

ADAA § 7344(b), 102 Stat. at 4471.

So, at the time of Ledezma-Galicia’s conviction for sexu-
ally molesting a minor, there was as yet no provision in the
INA making aliens removable as a result of aggravated felony
convictions. And when Congress, just over two months later,
enacted the ADAA, created the category of “aggravated felo-
nies,” and made conviction of an aggravated felony a ground
for deportation, that ground for deportation (a) was expressly
made inapplicable to individuals who, like Ledezma-Galicia,
were convicted before the ADAA’s enactment, and (b) did not
cover sexual abuse crimes such as Ledezma-Galicia’s.

C. The IMMAct of 1990

Two years after it enacted the ADAA, Congress overhauled
deportation law by passing the IMMAct. Like the ADAA, the
IMMAct alone did not change Ledezma-Galicia’s immigra-
tion status, because it did not define Ledezma-Galicia’s crime,
5
ADAA § 7342 provided in full: “Section 101(a) [of the INA] (8 U.S.C.
1101(a)) is amended by adding at the end thereof the following new para-
graph: ‘(43) The term ‘aggravated felony’ means murder, any drug traf-
ficking crime as defined in section 924(c)(2) of title 18, United States
Code, or any illicit trafficking in any firearms or destructive devices as
defined in section 921 of such title, or any attempt or conspiracy to com-
mit any such act, committed within the United States.’ ”
 LEDEZMA-GALICIA v. HOLDER 4999
sexual abuse of a minor, as a deportable offense. The Attor-
ney General maintains, however, that § 602 of the IMMAct
did affect the temporal reach of ADAA § 7344(a), which had
created the aggravated felony ground of deportation.

IMMAct § 602(a) replaced the INA’s list of grounds for
deportation with a revised list. As recited in the text of
IMMAct § 602(a) and codified at 8 U.S.C. § 1251(a), that
revised list reiterated the aggravated felony ground and many
of the other pre-IMMAct grounds for deportation, only rede-
signating them at new locations in the U.S. Code. IMMAct
§ 602(a) also altered or deleted certain other grounds of
deportation, and added several new ones. See 104 Stat. at
5077-81; compare 8 U.S.C. § 1251(a) (1988) with 8 U.S.C.
§ 1251(a) (1988 Supp. II).

In addition, subject to certain exceptions, IMMAct
§§ 602(c) and (d) stated that the revised list of grounds for
deportation applied to all aliens regardless of their date of
entry into the United States or the date of the “facts” that ren-
dered them deportable. Specifically, § 602(c), titled a “Sav-
ings Provision,” provided that:

Notwithstanding the amendments made by this
section, any alien who was deportable because of a
conviction (before the date of the enactment of this
Act) of an offense referred to in paragraph (15), (16),
(17), or (18) of section 241(a) of the Immigration
and Nationality Act,[6] as in effect before the date of
the enactment of this Act, shall be considered to
remain so deportable. Except as otherwise specifi-
cally provided in such section and subsection (d), the
provisions of such section, as amended by this sec-
tion, shall apply to all aliens described in subsection
(a) thereof notwithstanding that (1) any such alien
6
INA § 241 at the time was codified at 8 U.S.C. § 1251. See 8 U.S.C.
§ 1251 (1994) (codification notes).
5000 LEDEZMA-GALICIA v. HOLDER
entered the United States before the date of enact-
ment of this Act, or (2) the facts, by reason of which
an alien is described in such subsection, occurred
before the date of the enactment of this Act.

104 Stat. at 5081-82. IMMAct § 602(d), in turn, provided that
“[t]he amendments made by this section, and by section
603(b) of this Act, shall not apply to deportation proceedings
for which notice has been provided to the alien before March
1, 1991.” 104 Stat. at 5082.

In short, the IMMAct did not make Ledezma-Galicia
removable, because it still did not classify the sexual abuse of
a minor as an aggravated felony for which one could be
removed. Nevertheless, both parties regard IMMAct § 602 as
central to whether the aggravated felony ground of deporta-
tion applies to Ledezma-Galicia. We will return to discuss
that section below, but first we recount one final enactment
amending the INA and affecting Ledezma-Galicia’s case.

D. IIRIRA of 1996

In 1996, six years after enacting the IMMAct, Congress
passed the final piece of this statutory puzzle, IIRIRA.
IIRIRA made Ledezma-Galicia’s crime a deportable offense
by adding “sexual abuse of a minor” to the definition of
aggravated felony. 8 U.S.C. § 1101(a)(43)(A); IIRIRA
§ 321(a)(1), 110 Stat. at 3009-627. IIRIRA’s amendment to
the INA’s definition of “aggravated felony” finally brought
Ledezma-Galicia’s crime within that definition. The amend-
ment specified that this characterization applied “regardless of
whether the conviction was entered before, on, or after [Sep-
tember 30, 1996],” IIRIRA § 321(b), and to “actions taken on
or after the date of the enactment of this Act, regardless of
when the conviction occurred,” id. at § 321(c). See 110 Stat.
at 3009-628.

Thus, IIRIRA now classifies Ledezma-Galicia’s crime as
an aggravated felony. But that classification alone does not
 LEDEZMA-GALICIA v. HOLDER 5001
render him removable. Rather, Ledezma-Galicia is only
removable under IIRIRA if, as the government urges, § 602
of the IMMAct repealed the section of the AADA specifying
that an aggravated felony conviction entered prior to Novem-
ber 18, 1998, cannot serve as the basis for a charge of remov-
ability. Whether that is so is the central question in this case.

E. Procedural history of this case

On April 13, 2003, the Bureau of Customs and Immigration
Enforcement, relying on IIRIRA’s revised definition of aggra-
vated felony, initiated removal proceedings against Ledezma-
Galicia by filing a Notice to Appear. The Notice charged
Ledezma-Galicia with removability pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien convicted of an “aggravated
felony,” id. — specifically, “sexual abuse of a minor,” which
is now an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).7

An immigration judge (“IJ”) determined that Ledezma-
Galicia was removable as charged and denied on the merits
his application for discretionary relief under former § 212(c)
of the INA, 8 U.S.C. § 1182(c) (1994).8 In turn, the Board of
Immigration Appeals (BIA) dismissed Ledezma-Galicia’s
appeal from the IJ’s decision, affirming both that he was
removable and that he did not merit discretionary relief under
former § 212(c).

Six days later, Ledezma-Galicia filed a petition for a writ
of habeas corpus in the U.S. District Court for the District of
Oregon. While that petition was pending, Ledezma-Galicia
filed a timely petition for review with this court. The district
7
IIRIRA moved the grounds for deportation from INA § 241(a), codi-
fied at 8 U.S.C. § 1251(a), to INA § 237(a), codified at 8 U.S.C.
§ 1227(a).
8
The IJ assumed that Ledezma-Galicia was eligible for former § 212(c)
relief pursuant to INS v. St. Cyr, 533 U.S. 289 (2001), but exercised his
discretionary authority to deny such relief.
5002 LEDEZMA-GALICIA v. HOLDER
court denied the habeas petition in a published decision, from
which Ledezma-Galicia timely appeals. We treat Ledezma-
Galicia’s appeal of the district court’s denial of his habeas
petition as a timely filed petition for review, Alvarez-Barajas
v. Gonzales, 418 F.3d 1050, 1052-53 (9th Cir. 2005), and con-
sider it together with Ledezma-Galicia’s other petition, as the
legal issues presented in the two petitions are identical.

II. JURISDICTION

The question we address — whether Ledezma-Galicia (or
any other alien) is removable for an aggravated felony convic-
tion that occurred before November 18, 1988 — is purely one
of law. We therefore have jurisdiction to review it under 8
U.S.C. § 1252(a)(2)(D), as amended by the REAL ID Act of
2005, Pub. L. No. 109-13, div. B, § 106(a), 119 Stat. 231,
310-11.

III. DISCUSSION

[1] Pursuant to IIRIRA, aliens convicted after the enact-
ment of the ADAA of crimes designated as aggravated felo-
nies are deportable, regardless of when the crimes of which
they were convicted were first defined as aggravated felonies.
See Aragon-Ayon v. INS, 206 F.3d 847 (9th Cir. 2000).
Ledezma-Galicia, however, was convicted before the ADAA
was enacted, and thus both before his crime was defined as an
aggravated felony and before the introduction of the “aggra-
vated felony” category as a ground for deportation. To resolve
Ledezma-Galicia’s argument that the ADAA’s temporal limi-
tation on applicability prohibits removal for his pre-ADAA
conviction, we address in turn the two questions raised by the
parties: First, did § 602 of the 1990 IMMAct preserve or
override ADAA § 7344(b), the ADAA’s temporal limitation
on aggravated felony deportations? Second, if ADAA
§ 7344(b) survived the IMMAct, did IIRIRA in 1996 elimi-
nate its temporal limitation?
 LEDEZMA-GALICIA v. HOLDER 5003
A. IMMAct § 602 and ADAA § 7344(b)

[2] To repeat, ADAA § 7344(b) limited aggravated felony
deportations to convictions obtained on or after November 18,
1988, while IMMAct § 602(c), without mentioning aggra-
vated felonies specifically, provided generally that, with a few
exceptions, grounds for deportation should apply to all aliens,
regardless of the date on which “the facts” triggering deporta-
bility occurred.

[3] Recognizing the surface tension between ADAA
§ 7344(b) and IMMAct § 602(c), Ledezma-Galicia urges us to
conclude, first, that the latter did not expressly repeal the for-
mer, and, second, that the latter provision should not be read
to repeal the former by implication, because doing so would
violate both the presumption against implied repeals and the
presumption against retroactively applied statutes. See gener-
ally Nat’l Ass’n of Home Builders, 551 U.S. at 662-64; Land-
graf v. U.S.I. Film Prods., 511 U.S. 244 (1994). The Attorney
General, on the other hand, contends that IMMAct § 602(c)
overrides the very specific directive of ADAA § 7344(b), a
conclusion that the BIA reached in Matter of Lettman, 22 I.
& N. Dec. 365 (BIA 1998) (en banc). We agree with
Ledezma-Galicia.

[4] To show why that is so, we explain, first, that the
BIA’s interpretation of IMMAct § 602(c) merits no deference
because, when read in light of the applicable principles of
statutory interpretation, that provision is not ambiguous in the
respect the BIA supposed that it was. See generally United
States v. Mead Corp., 533 U.S. 218, 229-30 (2001); Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-
43 (1984). We next conduct our own analysis of the IMMAct
and conclude that it cannot be read to repeal ADAA § 7344(b)
either expressly or impliedly. Finally, we consider whether
this case is controlled by United States v. Hovsepian, 359
F.3d 1144 (9th Cir. 2004) (en banc) and United States v.
Yacoubian, 24 F.3d 1 (9th Cir. 1994), two cases addressing
5004 LEDEZMA-GALICIA v. HOLDER
firearms convictions covered by a clause similar to ADAA
§ 7344(b), but conclude that it is not.

1. The BIA and Chevron deference

The BIA in Matter of Lettman addressed the very question
before us — whether the IMMAct repealed ADAA § 7344(b).
As will appear, the BIA in Lettman took a fundamentally
wrong turn in its analysis, and so arrived at an interpretation
at odds with the plain language of the two statutes.

[5] Matter of Lettman concentrated on the “except” clause
in IMMAct § 602(c): “Except as otherwise specifically pro-
vided in such section and subsection (d) . . . .” The BIA deter-
mined, first, that the clause excepted from the rest of IMMAct
§ 602(c) the portions of INA § 241 that otherwise conflicted
with § 602(c). But § 602(c) was ambiguous, the agency con-
cluded, about which version of INA § 241 the IMMAct provi-
sion referred to in the “except” clause. 22 I. & N. Dec. at 372-
73. Lettman’s position was that the “except” clause referred
to the pre-IMMAct version of INA § 241 — that is, INA
§ 241 as it stood after the ADAA’s passage, before the
IMMAct amended it. Id. at 373. The BIA rejected this reading
of the statute and instead adopted the Immigration and Natu-
ralization Service’s (“INS”) position that the clause referred
to the post-IMMAct version of INA § 241. Id. at 373-74. Hav-
ing made that determination, the BIA went on to conclude
that § 602(c) of the IMMAct overrode § 7344(b) of the
ADAA, because the post-IMMAct version of INA § 241 con-
tained no temporal limitation on the application of the aggra-
vated felony ground for deportation.

As it turns out, however, it does not matter whether
IMMAct § 602(c) should be read to refer to the pre-IMMAct
or the post-IMMAct version of § 241(a). Contrary to Lett-
man’s supposition, the answer to that question has no bearing
on whether the ADAA’s temporal limitation survived the
IMMAct’s passage.
 LEDEZMA-GALICIA v. HOLDER 5005
[6] The key to the BIA’s mistake is this: ADAA § 7344(b)
was never part of the text of INA § 241 at all. True, ADAA
§ 7344(a) provided: “Section 241(a)(4) [of the INA] (8 U.S.C.
1251(a)(4)) is amended — (2) by inserting after the semicolon
[the aggravated felony ground for deportation].” But the text
of ADAA § 7344(b), unlike subsection (a), contained no ref-
erence to INA § 241, or to its codified version, 8 U.S.C.
§ 1251. Instead, § 7344(b) reads only: “The amendments
made by subsection (a) [of ADAA § 7344] shall apply to any
alien who has been convicted, on or after the date of the
enactment of this Act, of an aggravated felony.”9

[7] In other words, ADAA § 7344(b) was never a subsec-
tion of INA § 241. Instead, it was always an entirely free-
standing temporal limitation provision. As a result, neither the
9
Prior to the IMMAct, ADAA § 7344(b) was listed in the “effective
date” notes to 8 U.S.C. § 1251. See 8 U.S.C. § 1251 (1988). The appear-
ance of ADAA § 7344(b) in those notes does not support the BIA’s analy-
sis. For one thing, the provision also appeared in the effective date notes
to the post-IMMAct version of the U.S. Code. See 8 U.S.C. § 1251 (1994).
Furthermore, the ADAA temporal provision appeared only in the notes to
§ 1251, not in the text. Although codification decisions are ordinarily not
made by Congress, it is of some significance that the codifiers understood
that § 7344(b) was not part of the text of the statute. See generally Ques-
tions & Answers, 78 LAW LIBR. J. 585, 592 (1986) (regarding the codifica-
tion process for federal laws).
We note that some of the electronic versions of the ADAA show
§ 7344(b) as containing the bracketed phrase “8 U.S.C. § 1251 note” in the
middle of subsection (b)’s text, or at the very beginning. See Pub. L. No.
100-690, 102 Stat. 4181, 4373 (Westlaw); Pub. L. No. 100-690, 102 Stat.
4181, 7343 (Lexis). Both those transcriptions are erroneous. It is quite
clear, if one looks at the Public Law as published in the Statutes at Large,
that the reference to “8 U.S.C. § 1251 note” appears only in the margin
of ADAA § 7344(b), not in the text. Pub. L. No. 100-690, 102 Stat. 4471.
Margin notes are added by the codifiers, not by Congress. See Questions
and Answers, 78 LAW LIBR. J. at 592. The decision to move the codifiers’
marginal note into the text of § 7344(b) was apparently made by the elec-
tronic databases’ transcribers in producing their unofficial online versions
of the U.S. Code. Their erroneous decision to reproduce the marginal note
as part of the statute itself is without any legal significance.
5006 LEDEZMA-GALICIA v. HOLDER
“except” clause of IMMAct § 602(c) (“Except as otherwise
specifically provided in such section and subsection (d)
. . . .”), nor the affirmative provision of § 602(c)’s second sen-
tence (“. . . the provisions of such section, as amended by this
section, shall apply to all aliens described in subsection (a)
thereof”), can describe the fate of ADAA § 7344(b), because
§ 7344(b) was never in “such section,” pre- or post-IMMAct.
Thus, whichever version of INA § 241 the “except” clause
and the affirmative language of IMMAct § 602(c) refer to,
neither reference to “such section” refers to § 7344(b) or tells
us whether § 7344(b) was alive or dead after the enactment of
the IMMAct. Lettman is therefore not entitled to Chevron def-
erence, as its reasoning cannot be squared with the actual stat-
ute.10

2. Implied repeal

[8] Although the BIA’s premises were incorrect, we might
still reach the same conclusion if the IMMAct § 602(c)
impliedly repealed the pertinent ADAA provision. If, as here,
the presumption against implied repeal definitively resolves
the critical statutory interpretation question, we do not under
Chevron defer to a contrary agency interpretation, because,
once the presumption is applied, the statute is not ambiguous.
See generally Lujan-Armendariz v. INS, 222 F.3d 728, 749
10
We note that two of our sister circuits have deferred to the BIA’s anal-
ysis by relying in part on the same erroneous premise as did the BIA in
Matter of Lettman. Neither court recognized that the conviction date trig-
ger of ADAA § 7344(b) was not contained in any version of INA § 241
and so was not referenced in IMMAct § 602(c). See Lettman v. Reno, 207
F.3d 1368, 1370-72 (11th Cir. 2000); Lewis v. INS, 194 F.3d 539, 545-46
(4th Cir. 1999).
The only other court to address this issue is the Second Circuit. In Bell
v. Reno, 218 F.3d 86 (2d Cir. 2000), that court also concluded that
IMMAct § 602 overrode ADAA § 7344(b), but did so based on IMMAct
§ 602(d), rather than § 602(c), with reasoning distinct from that of both the
BIA and the analysis we develop today. We discuss Bell later in this opin-
ion.
 LEDEZMA-GALICIA v. HOLDER 5007
(9th Cir. 2000); see also INS v. St. Cyr, 533 U.S. 289, 320
n.45 (2001) (“We only defer, however, to agency interpreta-
tions of statutes that, applying the normal ‘tools of statutory
construction,’ are ambiguous. Because a statute that is ambig-
uous with respect to retroactive application is construed under
our precedent to be unambiguously prospective, there is, for
Chevron purposes, no ambiguity in such a statute for an
agency to resolve.”) (quoting Chevron, 467 U.S. at 843 n.9;
other citations omitted). And here, when the canon militating
against implied repeal is fully and correctly applied, it
becomes clear that there is no statutory ambiguity to resolve
here, and thus no reason to defer to the agency. Properly ana-
lyzed, the statute is not susceptible to multiple readings from
among which the BIA could choose a reasonable one.

In these circumstances, as directed by Chevron’s step one,
467 U.S. at 842-43, we decide this case ourselves. We do not,
as would the dissent, apply Chevron step two deference to a
BIA interpretation of a statutory provision that, applying ordi-
nary interpretation precepts, admits of only one apparent and
unambiguous meaning. See Dissent at 5047-48.

Our question thus becomes whether § 7344(b) of the 1988
Act was impliedly repealed. Applying the extremely strict
standards for finding an implied repeal, we conclude that it
was not.

[9] As the Supreme Court has had the occasion to remind
us recently, “repeals by implication are not favored and will
not be presumed unless the intention of the legislature to
repeal is clear and manifest.” Nat’l Ass’n of Home Builders,
551 U.S. at 662 (internal quotation marks and alterations
omitted). There are narrow circumstances in which implied
repeals will be recognized, however. Broadly speaking,

[i]t is a basic principle of statutory construction that
a statute dealing with a narrow, precise, and specific
subject is not submerged by a later enacted statute
5008 LEDEZMA-GALICIA v. HOLDER
covering a more generalized spectrum, unless the
later statute expressly contradicts the original act or
unless such a construction is absolutely necessary in
order that the words of the later statute shall have
any meaning at all.

Traynor v. Turnage, 485 U.S. 535, 548-49 (1988) (internal
quotation marks, alterations, and citations omitted). More spe-
cifically, the Supreme Court has recognized “two well-settled
categories of repeals by implication — (1) where provisions
in the two acts are in irreconcilable conflict . . . ; and (2)
[where] the later act covers the whole subject of the earlier
one and is clearly intended as a substitute.” Radzanower v.
Touche Ross & Co., 426 U.S. 148, 154 (1976).

Under either rubric, we cannot conclude that a later statute
impliedly repeals an earlier one unless “ ‘the intention of the
legislature to repeal [is] clear and manifest.’ ” Nat’l Ass’n of
Home Builders, 551 U.S. at 662 (alterations in original) (quot-
ing Watt v. Alaska, 451 U.S. 259, 267 (1981)). And such an
intention is not “clear and manifest” simply because “the two
statutes produce differing results when applied to the same
factual situation.” Radzanower, 426 U.S. at 155. “[T]hat,” the
Supreme Court has pronounced, “no more than states the
problem. Rather, ‘when two statutes are capable of co-
existence, it is the duty of the courts . . . to regard each as
effective.’ ” Id. (quoting Morton v. Mancari, 417 U.S. 535,
551 (1974)) (ellipsis in original).

Applying these principles, “[b]oth this court and the
Supreme Court have found no [implied repeal] where, by cre-
ating minor exceptions to later-enacted statutes based on ear-
lier ones, both statutes can be preserved.” Lujan-Armendariz,
222 F.3d at 744. In Donaldson v. United States, 653 F.2d 414
(9th Cir. 1981), for example, we characterized as a “small
puncture in a broad shield” the relationship between an earlier
statute regarding resort owners’ liability and a later statute
that applied to all real property owners. Id. at 418. Although
 LEDEZMA-GALICIA v. HOLDER 5009
the two statutes conflicted on their face, we reconciled them
by allowing the earlier statute to serve as a narrow exception
to the later one.

Similarly, Lujan-Armendariz preserved a provision in the
Federal First Offender Act (FFOA) as an exception to a later
law that defined the term “conviction” for immigration pur-
poses. The FFOA provision allowed courts “to sentence the
defendant in a manner that prevents him from suffering any
disability imposed by law on account of the finding of guilt.”
222 F.3d at 735. The immigration law would otherwise have
conflicted with the FFOA. But we held that the earlier statute
was not “irreconcilable” with the latter — and thus not
impliedly repealed — because to resolve the conflict between
the two, “[w]e need[ed] only construe the later-enacted immi-
gration law as subject to the minor exception required by the
provisions of the earlier-enacted [FFOA].” Id. at 745; see also
id. at 744-45 (discussing similar analysis in Radzanower and
NLRB v. Kolkka, 170 F.3d 937 (9th Cir. 1999)).

Applying these precepts, ADAA § 7344 and IMMAct
§ 602(c) meet neither implied repeal standard.

i. IMMAct § 602(c)

[10] It is quite evident that IMMAct § 602(c) is a more
general statutory provision than ADAA § 7344(b). IMMAct
§ 602(c) directs generally that revised INA § 241 applies
without regard to whether “the facts, by reason of which an
alien is described as removable in [INA § 241],” occurred
prior to IMMAct’s enactment. But it does not specifically
cover the impact of convictions for crimes generally, or the
impact of pre-1988 convictions in particular. ADAA
§ 7344(b), in contrast, narrowly and expressly covered both of
these considerations, and, even more narrowly, did so with
regard to the aggravated felony ground of deportation only.

[11] True, when applied after 1990 to pre-ADAA aggra-
vated felony convictions, the affirmative provision of
5010 LEDEZMA-GALICIA v. HOLDER
IMMAct § 602(c), which covers all of INA § 241, could, read
literally, “produce [a] differing result when applied to the
same factual situation” as ADAA § 7344(b). Radzanower,
426 U.S. at 155. That is, with the “except” clause out of the
picture, IMMAct § 602(c), on its face, could be read to allow
deportation for such convictions, while ADAA § 7344(b)
would not. But, as Radzanower teaches, “that . . . states the
[implied repeal] problem” but does not resolve it. Id. at 155.
To resolve the problem, Radzanower and its progeny inform
us, we must consider whether, like the preexisting narrow
statutes at issue in Lujan-Armendariz and other cases, the ear-
lier and narrower statutory provision here — ADAA
§ 7344(b) — must be construed as a minor exception to the
very general language of the later statutory provision —
IMMAct § 602(c). We determine that it must, for several rea-
sons.

First, construing ADAA § 7344(b) as an exception to the
broad reach of IMMAct § 602(c) would certainly be a “small
puncture in a broad shield.” Donaldson, 653 F.2d at 418.
ADAA § 7344(b) addresses only one of many categories of
deportable offenses. Aggravated felony convictions constitute
one of the approximately thirty grounds for deportation and
fourteen categories of deportable criminal offenses that
IMMAct § 602(a) listed. Further, with the passage of time, the
pool of otherwise deportable aliens who committed pre-
ADAA aggravated felonies — already a small percentage of
all deportable aggravated felons — will continue to shrink.

[12] Second, nothing in the text of the IMMAct indicates
a “clear intention,” Radzanower, 426 U.S. at 153, to apply the
broad language of IMMAct § 602(c) so as to repeal the very
precise, narrow directive of ADAA § 7344(b). Nor does any-
thing in the text preclude interpreting ADAA § 7344(b) as a
narrow exception to IMMAct § 602. The “except” clause of
§ 602(c) shows that Congress anticipated some tension
between IMMAct § 602(c) and INA § 241, but, without more,
we cannot conclude that this clause shows the requisite con-
 LEDEZMA-GALICIA v. HOLDER 5011
gressional intent to repeal a separate provision specifically
addressing retroactivity of a small subset of deportation
grounds, ADAA § 7344(b).11

Third, when ADAA § 7344(b) was enacted, INA § 241
already contained a provision nearly identical to the second
sentence of IMMAct § 602(c). INA § 241(d), 8 U.S.C.
§ 1251(d) (1982), provided:

Except as otherwise specifically provided in this sec-
tion, the provisions of this section shall be applicable
to all aliens belonging to any of the classes enumer-
11
United States v. Novak, 476 F.3d 1041 (9th Cir. 2007) (en banc) is not
to the contrary. Novak indicated that the inclusion of a broad statement —
“notwithstanding any other law” — in a new statutory provision can, in
some circumstances, support an implied repeal of earlier statutes, thereby
functioning similarly to an express reference to the superseded statute, and
demonstrating that Congress “ ‘intended to partially repeal [an] Act.’ ”
476 F.3d at 1052 (quoting Lujan-Armendariz, 222 F.3d at 747). The “ex-
cept” clause in IMMAct § 602(c) is not, however, tantamount to the “not-
withstanding any other law” clause in Novak. “Notwithstanding any other
law” in Novak showed an intent by Congress to supersede any and all
potentially conflicting laws. By contrast, because it expressly refers to
some version of INA § 241, the “except” clause in IMMAct § 602(c) indi-
cates only a recognition that INA § 241 — in some form — conflicts with
the rest of § 602(c). The “except” clause does not show any recognition
that Congress anticipated that other laws could also conflict with § 602(c),
or meant to address the continued viability of such laws.
Moreover, Novak did not state that “notwithstanding any other law” is,
standing alone, an express repeal. Instead, it recognized that any such
vaguely stated intent can be overridden by other statutory indicators. It
went on to consider the overall statutory scheme at length before conclud-
ing there was an intent to override an earlier conflicting statute. See 476
F.3d at 1046-53; see also Lujan-Armendariz, 222 F.3d at 747-48 (conclud-
ing that the absence of a “notwithstanding any other law” clause in one
provision of a statute signaled a lack of intent to repeal an earlier statute
because the same new statute had used “notwithstanding any other law”
clauses in several other places); see also Kee Leasing Co. v. McGahan (In
re Glacier Bay), 944 F.2d 577, 582 (9th Cir. 1991) (holding that the
phrase “notwithstanding . . . any other law” did not settle the express
repeal question, when other laws were incorporated by reference).
5012 LEDEZMA-GALICIA v. HOLDER
ated in subsection (a) of this section, notwithstanding
(1) that any such alien entered the United States
prior to June 27, 1952, or (2) that the facts, by reason
of which any such alien belongs to any of the classes
enumerated in subsection (a) of this section,
occurred prior to June 27, 1952.

At the time of its enactment, ADAA § 7344(b) unarguably
presented an exception to former INA § 241(d), even though
it was not an exception “specifically provided in this section”
because ADAA § 7344(b) was a freestanding provision never
incorporated in INA § 241. IMMAct § 602(c) performs essen-
tially the same function as former INA § 241(d).12 As ADAA
§ 7344(b) was a freestanding exception to former INA
§ 241(d), then the similar language of IMMAct § 602(c),
making no mention whatever of ADAA § 7344(b), should
also be read as compatible with ADA § 7344(b), rather than
as doing away with that section sub silentio.

[13] Fourth, the legislative history of IMMAct § 602 is of
no additional assistance in demonstrating a clear and manifest
intention to repeal ADAA § 7344(b). The conference report
on the IMMAct makes clear that IMMAct § 602(a) was to
replace the former INA § 241(a) by updating the grounds for
deportation and “ ‘consolidat[ing] . . . related grounds in order
to make the law more rational and easy to understand.’ ” Mat-
ter of Lettman, 22 I. & N. Dec. at 371 (quoting H.R. REP. NO.
101-955, at 119, 128 (1990), reprinted in 1990 U.S.C.C.A.N.
6784, 6793). But neither that conference report nor any other
legislative history document we have found discusses
IMMAct § 602(c) in any regard, or reports the intended effect
12
As the BIA noted in Matter of Lettman, Congress repealed former
INA § 241(d) as part of the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733,
1756, “confirm[ing] . . . that the second sentence of [IMMAct] section
602(c) . . . was intended to serve the same function as former section
241(d).” 22 I. & N. Dec. at 373.
 LEDEZMA-GALICIA v. HOLDER 5013
of the IMMAct on ADAA § 7344(b) or similar provisions.
Compare Novak, 476 F.3d at 1051-52 (concluding that a stat-
ute impliedly repealed another in part because the legislative
history showed Congress was aware of the potential conflict
between the two laws when the later statute was passed).

[14] Fifth and finally, when other provisions of the
IMMAct are taken into account, it becomes apparent that
Congress did not intend to repeal ADAA § 7344(b), because
doing so would have produced exceedingly odd results. See
generally Sheridan v. United States, 487 U.S. 392, 402 n.7
(1988) (“courts should strive to avoid attributing absurd
designs to Congress”).

The peculiar outcome we must strive to avoid would result
from the interaction of IMMAct § 602(c) and IMMAct § 501,
which amended the definition of the term “aggravated felony.”13
13
Section 501 reads in full:
(a) IN GENERAL.—Paragraph (43) of section 101(a) (8 U.S.C.
1101(a)) is amended—
(1) by aligning its left margin with the left margin of paragraph
(42),
(2) by inserting “any illicit trafficking in any controlled sub-
stance (as defined in section 102 of the Controlled Substances
Act), including” after “murder,”
(3) by inserting after “such title,” the following: “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 impris-
onment imposed (regardless of any suspension of such imprison-
ment) is at least 5 years,”
(4) by striking “committed within the United States,”
(5) by adding at the end the following: “Such term applies to
offenses described in the previous sentence whether in violation
of Federal or State law,” and
5014 LEDEZMA-GALICIA v. HOLDER
Section 501 broadened the definition of the term “aggravated
felony” by, inter alia, adding certain controlled substance
trafficking crimes and crimes of violence to the list of qualify-
ing crimes in INA § 101(a)(43). IMMAct § 501(a), 104 Stat.
at 5048. So, like the ADAA, the IMMAct treated the defini-
tion of “aggravated felony” as distinct from the aggravated
felony ground for deportation. The IMMAct also separately
specified the temporal reach of the new definition: IMMAct
§ 501(b) provided that four of the six amendments added by
§ 501, including the addition of “crimes of violence,” would
apply only “to offenses committed on or after the date of the
enactment of [the IMMAct].” 104 Stat. at 5048. Two other
amendments, including addition of certain controlled sub-
stance trafficking offenses, applied as if they had been
included in the ADAA’s 1988 definition of “aggravated felo-
ny.” Id.

Section 501(b)’s reference to the ADAA indicates that
Congress considered § 7344(b) of that Act as continuing in
force. Were § 7344(b) impliedly repealed by IMMAct, the
provision in IMMAct itself specifying that certain of the
amendments contained in § 501(a) would be “effective as if
included in the enactment of section 7342 of the Anti-Drug
Abuse Act of 1988” would be pointless. For, if IMMAct
§ 602(c) in fact eliminated ADAA § 7344(b), the pivotal pro-
vision in the 1988 Act concerning the temporal impact of the

(6) by inserting before the period of the sentence added by
paragraph (5) the following: “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 previ-
ous 15 years.”
(b) EFFECTIVE DATE.—The amendments made by subsection (a)
shall apply to offenses committed on or after the date of the enactment of
this Act, except that the amendments made by paragraphs (2) and (5) of
subsection (a) shall be effective as if included in the enactment of section
7342 of the Anti-Drug Abuse Act of 1988 [defining “aggravated felony”].
 LEDEZMA-GALICIA v. HOLDER 5015
aggravated felony definition would no longer exist, and there
would be no reason to refer in IMMAct to the ADAA, rather
than to § 602(c) of IMMAct itself, as the source of effective
date provisions concerning amendments to the aggravated fel-
ony definition.14

Moreover, if § 501(b) is read as having incorporated the
temporal limitations of the ADAA with regard only to some
of the IMMAct’s definitional amendments, that reading would
produce exceedingly peculiar results: For aliens who commit-
ted money laundering and crimes of violence — first defined
as aggravated felonies in IMMAct § 501(a) — the new aggra-
vated felony definition would apply prospectively, so that
only aliens who committed such crimes after IMMAct’s pas-
sage in 1990 could be deported as aggravated felons. But
aliens who committed the controlled substance or state law
offenses referenced in IMMAct § 501(b) before 1988, like
aliens who committed aggravated felonies included in the
ADAA but were convicted prior to the ADAA’s passage,
would suddenly become deportable with the enactment of the
IMMAct. Such a reading would mean that the IMMAct, for
no apparent reason, protected from deportation some, but not
all, aggravated felons who committed crimes before the
aggravated felony ground of deportation was created.
14
ADAA § 7344 was one of a handful of provisions in the ADAA that
related to aggravated felony convictions. Two other ADAA provisions,
§ 7343 and § 7347, created separate procedures for detaining and deport-
ing aliens convicted of aggravated felonies. And like § 7344, those two
other provisions expressly provided that they only applied to post-ADAA
convictions. See § 7343(c), 102 Stat. at 4470 (limiting the applicability of
provisions regarding detention of aggravated felons); § 7347(c), 102 Stat.
at 4472 (limiting the applicability of provisions regarding expedited
deportation procedures for aggravated felons). These provisions do not
independently give meaning to § 501(b)’s mention of the ADAA, because
both of these provisions concern enforcement of the aggravated felony
ground of deportation and are thus logically tied to the temporal reach of
that ground.
5016 LEDEZMA-GALICIA v. HOLDER
[15] This division would make no sense. Instead, in light
of IMMAct § 501(b)’s reference to the ADAA, and § 501(b)’s
apparent purpose to limit the instances in which criminal
aliens were retroactively categorized as deportable, it
becomes evident that the 1990 Congress intended generally to
preserve the ADAA’s determination that an aggravated felon
would be deportable as such only if convicted of the crime in
question, at the earliest, after November 18, 1988 — that is,
after conviction of an aggravated felony became a deportable
offense.

The dissent argues that the BIA read IMMAct § 602(c) as
part of a “ ‘wholesale revision of 8 U.S.C. § 1251 [INA
§ 241], a ‘new statutory scheme,’ embracing ‘comprehensive
changes,’ ” Dissent at 5044 (quoting Lettman, 22 I. & N. Dec.
at 374) — and thus, as a repeal by way of complete substitu-
tion, which is “not the sort of implied repeal that is discour-
aged by our presumption.” Id. at 5045 (citing Nat’l Ass’n of
Home Builders, 551 U.S. at 663). The dissent’s view of the
BIA opinion as properly resting on a complete substitution
implied repeal theory and as therefore entitled to deference
cannot be right, for three reasons.

First, the BIA stated in Lettman that its reading of § 602(c)
“comports with our understanding that the purpose of § 602
of the 1990 Act was to completely revise the deportation
grounds.” Lettman, 22 I. & N. Dec. at 372 (emphasis added).
That is, it came to its reading of § 602(c) quite apart from the
complete revision rationale, namely because it considered
§ 602(c)’s reference to INA § 241(a) to encompass ADAA
§ 7344(b) expressly. The BIA never directly addressed the
presumption against implied repeals before settling upon its
interpretation of § 602(c). As we have already shown, ADAA
§ 7344(b) was never a part of INA § 241, so whatever the
BIA believed about § 602(a) being “intended to replace for-
mer section 241(a) (1998) in its entirety,” Lettman, 22 I. & N.
Dec. at 371, such a complete replacement would not directly
have affected the meaning of § 602(c).
 LEDEZMA-GALICIA v. HOLDER 5017
[16] Second, even taking the BIA’s decision “on its own
terms” as the dissent suggests we should and presuming that
the BIA regarded IMMAct § 602(c) as a complete revision of
the deportation provisions of the INA, the BIA’s statutory
construction in Matter of Lettman was not “well within the
general principles applicable to implied repeals.” See Dissent
at 5045. Matter of Lettman stated that “there would be no
point in enacting a new statutory scheme if the intent was to
keep the former version of the law in control whenever there
was a difference between the old and the new. We cannot
conclude that this was the intention of Congress.” 22 I. & N.
Dec. at 374. The BIA’s reasoning, and the dissent’s attempt
to portray Lettman as properly applying the demanding
requirements for an implied repeal, do not work.

Posadas v. National City Bank, 296 U.S. 497 (1936)
explains:

The cardinal rule is that repeals by implication are
not favored. Where there are two acts upon the same
subject, effect should be given to both if possible.
There are two well-settled categories of repeals by
implication — (1) where provisions in the two acts
are in irreconcilable conflict, the later act to the
extent of the conflict constitutes an implied repeal of
the earlier one; and (2) if the later act covers the
whole subject of the earlier one and is clearly
intended as a substitute, it will operate similarly as
a repeal of the earlier act. But, in either case, the
intention of the legislature to repeal must be clear
and manifest; otherwise, at least as a general thing,
the later act is to be construed as a continuation of,
and not a substitute for, the first act[.]

Id. at 503 (emphasis added). As we have shown extensively,
IMMAct was by no means clearly intended to repeal the
ADAA generally, and the dissent fails to identify any “clear
and manifest” congressional intent to do so. Instead, the dis-
5018 LEDEZMA-GALICIA v. HOLDER
sent is forced to “infer[ ]” a repeal, see Dissent, 5045, con-
trary to the Supreme Court’s directive not to “infer a statutory
repeal unless the later statute expressly contradicts the origi-
nal act or unless such a construction is absolutely necessary
. . . in order that the words of the later statute shall have any
meaning at all.” Nat’l Ass’n of Home Builders, 551 U.S. at
662 (internal quotation marks and alterations omitted). Board-
member Rosenberg, dissenting from the majority decision in
Matter of Lettman, showed at length why the IMMAct did not
replace the aggravated felony provisions of the ADAA, but
only redesignated them. 22 I. & N. Dec. at 389-93, 396-97
(Rosenberg, dissenting).15 Moreover, Matter of Lettman does
not discuss IMMAct § 501(b) and so does not recognize the
inconsistency between that section and a wholesale revision
implied repeal theory.

Third, Chevron does not apply here in the first place. As
explained above, if reading the statutory language in light of
the presumption against implied repeals resolves any potential
ambiguity, Chevron deference has no role to play. See Lujan-
Armendariz, 222 F.3d at 749; St. Cyr, 533 U.S. at 320 n.45.

[17] For all these reasons, we conclude that IMMAct
§ 602(c) did not repeal ADAA § 7344(b).

ii. IMMAct § 602(d)

The “effective date” provision in the following subsection,
15
Boardmember Rosenberg further explained that until Lettman, case
law from multiple courts of appeals and the BIA, as well as an INS policy
statement, had so recognized, regarding ADAA § 7344 as in full force
after 1990. Id. (citing United States v. Baca-Valenzuela, 118 F.3d 1223,
1229 n.12 (8th Cir. 1997); Scheidemann v. INS, 83 F.3d 1517, 1524 (3d
Cir. 1996); De Osorio v. INS, 10 F.3d 1034, 1039 n.4 (4th Cir. 1993);
Matter of Chow, 20 I. & N. Dec. 647, 651-52 (BIA 1993), aff’d sub nom.
Kin Sang Chow v. INS, 12 F.3d 34 (5th Cir. 1993); Aggravated Felony:
Applicability to Convictions Prior to November 18, 1988, Op. Off. Gen-
eral Counsel 91-3 (Feb. 22, 1991)).
 LEDEZMA-GALICIA v. HOLDER 5019
IMMAct § 602(d), does not serve to overcome the presump-
tion against implied repeal either. That section is fully consis-
tent with interpreting ADAA § 7344(b)’s specific mandate
that the aggravated felony ground of deportation is not retro-
active as a “minor exception” to IMMAct § 602(c)’s general
retroactivity provision.

IMMAct § 602(d) states that § 602’s amendments to INA
§ 241 “shall not apply to deportation proceedings for which
notice has been provided to the alien before March 1, 1991.”
The Second Circuit in Bell held that § 602(d) directs that the
grounds for deportation in § 602(a) apply to all aliens who
received notice on or after March 1, 1991. See Bell, 218 F.3d
at 94.16 But this mode of interpreting an effective date provi-
sion has been definitively rejected. As the Supreme Court
held in St. Cyr, “a ‘statement that a statute will become effec-
tive on a certain date does not even arguably suggest that it
has any application to conduct that occurred at an earlier
date.’ ” St. Cyr, 533 U.S. at 317 (quoting Landgraf, 511 U.S.
at 257). Thus, a simple effective date provision cannot
impliedly repeal all previous temporal limitations on the
application of grounds of deportability.

iii. Summary

[18] In sum, application of the implied repeal doctrine
demands that we interpret § 602 as leaving the temporal limi-
tation on the aggravated felony ground of deportation intact.
16
Unlike the BIA and the other circuits that have considered the ques-
tion, Bell did not conclude that IMMAct § 602(c) overrode ADAA
§ 7344(b). The BIA’s analysis in Matter of Lettman, the Second Circuit
decided, was not reasonable because it did not employ the presumption
against retroactively applied statutes. Applying that presumption, the Sec-
ond Circuit held that IMMAct § 602(c) could not apply to pre-ADAA
aggravated felony convictions. 218 F.3d at 93-94. Up to that point, Bell
supports our somewhat different analysis, as it recognizes that the Matter
of Lettman statutory analysis is not sufficiently persuasive to overcome
presumptive rules of statutory interpretation cutting in the other direction.
5020 LEDEZMA-GALICIA v. HOLDER
We therefore need not consider Ledezma-Galicia’s argument
that the BIA’s interpretation also violates our presumption
against retroactively applied statutes. See generally Landgraf,
511 U.S. at 280 (describing the presumption against retroac-
tivity); Hovsepian, 359 F.3d at 1156 (concluding, in a related
context, that the Landgraf presumption did not apply to
IMMAct § 602, because § 602(c) represented an express
statement that IMMAct § 602(a) should be applied retroac-
tively); see also Bell, 218 F.3d at 93-94 (concluding that Mat-
ter of Lettman was unreasonable because it failed to take into
account the Landgraf presumption against retroactively
applied statutes). We do, however, address the government’s
concern that our analysis today is foreclosed by our previous
applications of IMMAct § 602(c).

3. Hovsepian and Yacoubian

[19] We previously considered IMMAct § 602(c) in
Hovsepian and Yacoubian. These cases concerned two aliens
who were convicted at trial of destructive device offenses in
1984, prior to enactment of the ADAA. At that time, the con-
victions would not have rendered the aliens deportable under
the firearms category of offenses. In 1988, however, the
ADAA, in addition to defining the term “aggravated felony”
and designating aggravated felonies as a category of deport-
able offense, amended INA § 241(a) to expand the list of fire-
arms and destructive device convictions that could serve as a
basis for deportation. See ADAA § 7348(a).17 At the same
17
More specifically: Prior to the ADAA, INA § 241(a)(14) rendered
deportable an alien who “at any time after entry, shall have been convicted
of possessing or carrying in violation of any law any weapon which shoots
or is designed to shoot automatically or semiautomatically more than one
shot without manual reloading, by a single function of the trigger, or a
weapon commonly called a sawed-off shotgun.” 8 U.S.C. § 1251(a)(14)
(1982). The ADAA amended that provision “by inserting after ‘law’ the
following: ‘any firearm or destructive device (as defined in paragraphs (3)
and (4), respectively, of section 921(a) of title 18, United States Code, or
any revolver or.’ ” ADAA § 7348(a); see also 8 U.S.C. § 1251(a)(14)
(1988).
 LEDEZMA-GALICIA v. HOLDER 5021
time, in language identical to that of ADAA § 7344(b),
ADAA § 7348(b) limited the amendment to the firearms
ground to convictions on or after the ADAA’s enactment.
Despite that temporal limitation, we have twice held that
IMMAct § 602(c) rendered aliens deportable based on their
pre-ADAA convictions. Hovsepian, 359 F.3d at 1156-57;
Yacoubian, 24 F.3d at 6-7.

[20] Because of the similarity between the ADAA tempo-
ral limitation at issue in Hovsepian and Yacoubian and
ADAA § 7344(b), at issue here, those cases inform our analy-
sis today. But they do not control our resolution of Ledezma-
Galicia’s petition, because the ADAA and the IMMAct
treated the offenses at issue in Hovsepian and Yacoubian dif-
ferently from aggravated felonies in a critical respect. In INA
§ 241(a), which lists the grounds for deportation, the ADAA
inserted only a reference to “aggravated felony” convictions
generally; it did not further define the term “aggravated felo-
ny.”18 Then, the ADAA inserted into the INA’s definitional
section, see INA § 101(a) (8 U.S.C. § 1101(a)), a definition of
the term “aggravated felony.” For firearms offenses, in con-
trast, the ADAA made no such structural division, but instead
inserted into INA § 241(a)(14) directly an expanded list of
firearms the illegal possession of which would render an alien
deportable.

The IMMAct continued the ADAA’s distinct structural
treatment of the aggravated felony and firearm categories of
18
For aggravated felony convictions, the ADAA’s distinction between
the term’s definition and its relevance to deportability has proven practical
for two reasons. First, the ADAA and later statutes used the shorthand
term “aggravated felony” in several contexts other than deportability. See,
e.g., 8 U.S.C. § 1158(b)(2) (regarding asylum eligibility); 8 U.S.C. § 1228
(regarding expedited removal proceedings); 8 U.S.C. § 1231(b)(3)(B)(iv)
(regarding eligibility for withholding of removal). Second, Congress has
been able to broaden the scope of the aggravated felony concept in all its
applications by amending the definition of “aggravated felony” without
having to amend separately each statute in which the concept is used.
5022 LEDEZMA-GALICIA v. HOLDER
deportable offenses. Like the ADAA, the IMMAct amended
the “aggravated felony” definition in INA § 101, while con-
tinuing to reference only the term “aggravated felony” in INA
§ 241(a), the statutory list of grounds for deportation. By con-
trast, the IMMAct once again broadened the category of
deportable firearms offenses by amending INA § 241(a)
directly. As a result of this distinction, there was no need for
a provision of the IMMAct pertinent to firearms offenses that
is parallel to § 501 of that statute,19 and there is none.

These two related structural distinctions between the aggra-
vated felony and firearms categories of offenses are critical
here. Combined, they explain why the implied repeal question
in Hovsepian and Yacoubian was fundamentally different
from the one we decide today:

First, because there is no IMMAct provision applicable to
firearms offenses that is parallel to IMMAct § 501(b), no
peculiar result has ensued from our holding that the IMMAct
repealed ADAA § 7348(b), regarding firearms deportations.
As we have seen, because of IMMAct § 501(b), an implied
repeal of ADAA § 7344(b), with respect to pre-ADAA aggra-
vated felony convictions covered by the ADAA but not by the
IMMAct, would mean that some aggravated felons could be
deported for convictions that occurred before aggravated fel-
ony convictions were made a ground for deportation, while
others could not, for no discernible reason. But the implied
repeal of ADAA § 7348(b), regarding firearms deportations,
creates no comparably odd outcome. The IMMAct did not
include a separate temporal reach provision governing fire-
arms convictions that is in tension with IMMAct § 602(c).

Second, IMMAct § 602(a) substantially — and substan-
tively — changed the firearms ground for deportability from
19
Section 501, as discussed above, limited the applicability of the broad-
ened reach of the aggravated felony ground to post-IMMAct convictions.
 LEDEZMA-GALICIA v. HOLDER 5023
the version contained in the ADAA.20 In doing so, the BIA
concluded, IMMAct § 602(a) “enact[ed] . . . a new statutory
provision that completely supersedes all former versions of
that [firearms] deportation ground.” Matter of Chow, 20 I. &
N. Dec. at 650 (emphasis added). In other words, IMMAct
§ 602(a) made ADAA § 7348(b), regarding the deportation
consequences of certain pre-ADAA firearms convictions, no
longer applicable at all, working a complete revision of the
firearms ground for deportation.21

In contrast, IMMAct § 602(a) changed only the statutory
placement of the aggravated felony ground within INA
§ 241(a), but made no change to the substance of the aggra-
vated felony ground for deportation. Compare 8 U.S.C.
§ 1251(a)(4)(B) (1988) (“Any alien in the United States shall,
upon the order of the Attorney General, be deported who —
. . . (4) . . . (B) is convicted of an aggravated felony at any
time after entry”) with 8 U.S.C. § 1251(a)(2)(A)(iii) (1988
Supp. II) (“Any alien who is convicted of an aggravated fel-
ony at any time after entry is deportable”). So the complete
revision implied repeal theory was applicable in Hovsepian
and Yacoubian, but is not applicable here. See also Matter of
20
After IMMAct, aliens were deportable if after entry they had been
“convicted under any law of purchasing, selling, offering for sale,
exchanging, using, owning, possessing, or carrying in violation of any
law, any weapon, part, or accessory, which is a firearm or destructive
device (as defined in section 921(a) of title 18, United States Code).”
IMMAct § 602(a); see also 8 U.S.C. § 1251(a)(2)(C) (1988 Supp. II).
21
See Chow v. INS, 12 F.3d 34, 37-38 (5th Cir. 1993) (applying Chevron
deference to approve the BIA’s interpretation of IMMAct § 602(a));
Yacoubian, 24 F.3d at 7 (citing the Fifth Circuit opinion in Chow).
We note that Matter of Chow is fully consistent with the principles of
our implied repeal jurisprudence. Radzanower instructs that one “well-
settled categor[y] of repeals by implication” consists of instances when
“the later act covers the whole subject of the earlier one and is clearly
intended as a substitute.” 426 U.S. at 154. Although Matter of Chow did
not cite Radzanower or related cases, the BIA’s conclusion in that case is
little more than a paraphrase of Radzanower’s description of an appropri-
ate implied repeal.
5024 LEDEZMA-GALICIA v. HOLDER
Lettman, 21 I. & N. Dec. at 389-90 (Rosenberg, dissenting)
(explaining that “with section 602(a) of the 1990 Act Con-
gress only changed the numerical designation of some depor-
tation grounds, while with others, such as that governing
firearms violations, it completely substituted the text of the
new section for that of the former section” (internal citations
omitted)).

To summarize: For pre-ADAA aggravated felonies, our
implied repeal analysis is informed by considerations quite
different from those relevant to pre-ADAA firearms offenses.
We hold that unlike ADAA § 7348(b), regarding pre-ADAA
firearms offenses, ADAA § 7344(b), regarding pre-ADAA
aggravated felonies, survived the IMMAct.

B. IIRIRA

[21] To complete the saga of ADAA § 7344(b), we con-
sider finally whether that provision also survived IIRIRA, the
1996 reform of immigration law that added “sexual abuse of
a minor” to the aggravated felony definition, IIRIRA
§ 321(a), and made the amended definition applicable to all
aliens, regardless of their date of conviction, IIRIRA § 321(b).
Noting our prior holding that IIRIRA “clearly manifested an
intent for the amended definition of aggravated felony to
apply retroactively,” Aragon-Ayon, 206 F.3d at 851, the dis-
trict court in Ledezma-Galicia’s habeas proceeding concluded
that IIRIRA § 321(b) erased the ADAA’s temporal limitation
because “changing the meaning of a statutory term necessarily
changes the effect of the statute using that term.” Ledezma-
Galicia, 294 F. Supp.2d at 1197 (D. Or. 2003); id. at 1195
(quoting Aragon-Ayon).

[22] We cannot agree. As we have clarified, “it is settled
law that the . . . definitional statute, IIRIRA § 321, which
defines certain crimes as aggravated felonies, applies regard-
less of the date of the crime.” Lopez-Castellanos v. Gonzales,
437 F.3d 848, 852 (9th Cir. 2006). But IIRIRA’s effective
 LEDEZMA-GALICIA v. HOLDER 5025
date provisions do not control “the substantive immigration
consequences of IIRIRA” (emphasis added) — even when
those consequences turn on an aggravated felony conviction.
Id. at 852-54 (recognizing that the definition of “aggravated
felony” applies to all aliens, but nevertheless analyzing sepa-
rately the temporal reach of an IIRIRA provision making
aggravated felons ineligible for cancellation of removal).22 As
Ledezma-Galicia emphasizes, there are a host of conse-
quences of being an aggravated felon other than removability.23
And in addition to this court, both the Supreme Court and the
immigration agencies have consistently determined the tem-
poral reach of those consequences of aggravated felony con-
victions separately from the temporal reach of the aggravated
felony definition, even in the wake of IIRIRA.24 See, e.g., 8
22
None of the cases that established the retroactivity of the aggravated
felony definition discussed whether a pre-1988 aggravated felony convic-
tion could trigger deportability. Park v. INS, 252 F.3d 1018 (9th Cir.
2001), and Aragon-Ayon addressed post-1988 convictions, which indispu-
tably triggered deportability as aggravated felonies if the 1996 statute’s
definition of aggravated felony was deemed applicable. Valderrama-
Fonseca v. INS, 116 F.3d 853 (9th Cir. 1997), considered the conse-
quences of a 1985 conviction. But in that case too, we did not need to con-
sider the interaction between IIRIRA § 321 and the ADAA. Instead, we
determined that § 321(c), which limited § 321(a) to “actions taken” after
September 30, 1996, precluded the application of IIRIRA to the case,
holding that “actions taken” referred to “anything done by the Attorney
General after the effective date (without regard to when the conviction
occurred) except for what is done solely on account of the alien’s re-
entering the country.” 116 F.3d at 856-57. In Valderrama-Fonseca, no
such actions were “taken” after the effective date of IIRIRA, so § 321(a)’s
amendment of the aggravated felony definition was inapplicable. Id. at
857.
23
Ledezma-Galicia identifies nineteen distinct consequences of aggra-
vated felon status.
24
In our analysis of the IMMAct earlier in this opinion, we expressed
concern about the tension between the BIA’s reading of IMMAct § 602(c)
— regarding the retroactivity of the deportation consequences of aggra-
vated felonies — and IMMAct § 501(b) — regarding the retroactivity of
the aggravated felony definition. Our consternation does not, however,
imply that Congress cannot separately define the temporal reach of the
5026 LEDEZMA-GALICIA v. HOLDER
C.F.R. § 316.10(b)(1) (limiting the aggravated felony bar to
good moral character determinations to convictions that
occurred on or after November 29, 1990); see also St. Cyr,
533 U.S. at 315 (holding that a 1996 law that prohibited
aggravated felons from applying for relief from deportation
could not apply retroactively); Matter of A-A-, 20 I. & N. Dec.
492, 495-98 (BIA 1997) (discussing individual temporal limi-
tations on the consequences of aggravated felonies).

[23] There has been no suggestion that any provision in
IIRIRA other than § 321 affects ADAA § 7344(b). We there-
fore hold that the ADAA’s temporal limitation on aggravated
felony removals survived not only the IMMAct but also
IIRIRA. In other words, the law remains that pursuant to
ADAA § 7344(b), the aggravated felony ground for deporta-
tion “shall apply [only] to any alien who has been convicted,
on or after the date of enactment of [ADAA], of an aggra-
vated felony.”

IV. CONCLUSION

[24] Ledezma-Galicia is not removable by reason of being
an aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii)
does not apply to convictions, like Ledezma-Galicia’s, that
occurred prior to November 18, 1988. Consequently, we grant
Ledezma-Galicia’s petition for review, vacate the district

aggravated felony definition and the temporal reach of its consequences.
Our objection was only to an interpretation of the two temporal reach pro-
visions that would result in lack of uniformity for different aggravated fel-
onies with regard to whether convictions that predated the entire
aggravated felony concept could be grounds for deportation. No such ten-
sion occurs if, as we hold, the expanded aggravated felony definition
applies to all convictions, but only triggers deportability for convictions
after the statute making the definition pertinent to deportation was
enacted. Under this interpretation of the relevant statutes, all aggravated
felons — as that term is presently defined — are treated alike, in terms of
deportability. Nothing in IIRIRA suggests a contrary, non-uniform intent.
 LEDEZMA-GALICIA v. HOLDER 5027
court’s denial of his habeas petition, and dismiss his appeal as
moot.

No. 03-73648: PETITION FOR REVIEW GRANTED;
REMANDED.

No. 04-35048: VACATED and DISMISSED.
LEDEZMA-GALICIA v. HOLDER 5029
Volume 2 of 2
5030 LEDEZMA-GALICIA v. HOLDER

BYBEE, Circuit Judge, dissenting:

There is no polite way to say this: The statutory scheme we
are required to parse in this case is a mess. It is a model of
ambiguity and misdirection. That fact, of course, does not
give us license to impose our own reading on the statute, but
means that we must accept an agency’s construction of the
statute so long as it is reasonable. Chevron, USA, Inc. v. Natu-
ral Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). The
majority declines to accept the BIA’s reading and imposes its
own. Whether the majority has improved on the BIA’s analy-
sis is debatable—although for the reasons I explain, I quite
doubt it—but we do not have to be confident of our analysis,
we only have to be confident that the BIA’s is reasonable.
And of that, I am 100 percent confident. Indeed, so twisted
and complex are the provisions at issue here that—short of
spitting in a bucket—the BIA could have concluded almost
anything in this case and been reasonable. If Chevron means
anything, this is a classic case for deferring to the agency.

In September 1988, an Oregon state court convicted Ramon
Ledezma-Galicia of sodomy for sexually molesting a minor.
 LEDEZMA-GALICIA v. HOLDER 5031
The crime for which he was convicted constitutes “sexual
abuse of a minor,” which is an aggravated felony under cur-
rent law, see 8 U.S.C. § 1101(a)(43)(A), and therefore a basis
for removal under 8 U.S.C. § 1227(a)(2)(A)(iii). The BIA,
consistent with its en banc decision in In re Lettman, 22 I. &
N. Dec. 365 (BIA 1998), held that he is removable. In Lett-
man, the BIA found that the relevant statutory provisions
were “difficult to decipher,” “ambiguous,” and “capable of
different readings,” but reasoned that the 1990 amendments to
the INA “dictate[ ] that any alien who has been convicted of
a crime defined as an aggravated felony, and who was placed
in deportation proceedings on or after March 1, 1991, is
deportable regardless of when the conviction occurred.” Id. at
372, 378.

The majority disagrees. Applying the “canon militating
against implied repeal,” the majority declares that “the statute
is not susceptible to multiple readings,” but “admits of only
one apparent and unambiguous meaning.” Maj. Op. at
5006-07. As a result, it claims that we owe no Chevron defer-
ence and “we decide this case ourselves.” Id. at 5007. Apply-
ing de novo review, it then holds that Ledezma cannot be
removed because the law making aliens convicted of aggra-
vated felonies deportable does not apply to aliens convicted
of aggravated felonies prior to November 18, 1988. Id. at
4995, 5009-10. The majority admits that this creates “a ‘small
puncture in a broad shield’ ” because aliens are deportable for
any number of offenses committed prior to 1988. Id. at 5010
(citation omitted). According to the majority’s decision, Con-
gress intended to create this “minor exception,” id., and as a
result, aliens who sexually abuse minors will not be subject
to deportation so long as they committed the crime before
1988.

In the process of discarding the BIA’s considered decision,
the majority not only takes issue with the agency, but it also
creates a clear split with the Fourth and Eleventh Circuits,
which recognized that the statutes are ambiguous and have
5032 LEDEZMA-GALICIA v. HOLDER
held that the BIA’s construction of the INA in Lettman is rea-
sonable. Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000)
(opinion per Goodwin, J.); Lewis v. INS, 194 F.3d 539 (4th
Cir. 1999). Furthermore, the majority’s decision flies in the
teeth of our en banc decision in United States v. Hovsepian,
359 F.3d 1144 (9th Cir. 2004). In Hovsepian we approved the
same reasoning the BIA employed in this case as applied to
a parallel section of the same act. Indeed, were the issue to
come before the BIA again, Hovsepian would likely compel
the conclusion the BIA reached in Lettman.

In crafting this decision, the majority has compiled quite a
group of unreasonable readers. Because I must add myself to
this list, I respectfully dissent.

I

My objections to the majority’s analysis begin with the
familiar Chevron two-step. 467 U.S. at 842-43. First, the
reviewing court must determine whether the statute is ambig-
uous: “If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Id. If,
however, the statute is silent or ambiguous then the reviewing
court “does not impose its own construction of the statute, but
rather it decides ‘whether the agency’s answer is based on a
permissible construction of the statute.’ ” Gonzales v. Dep’t of
Homeland Sec., 508 F.3d 1227, 1235 (9th Cir. 2007) (quoting
Chevron, 467 U.S. at 843). The agency’s interpretation is
entitled to deference “unless that interpretation is contrary to
the plain and sensible meaning of the statute.” Simeonov v.
Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). If a court con-
cludes that an agency’s decision “was based, at least in part,
on ambiguity in the applicable statutes” then the court “must
give deference to the agency’s resolution of these ambigui-
ties.” Gonzales, 508 F.3d at 1235.

The majority opinion essentially concludes that the BIA
was unreasonable because it was wrong. But that is a conclu-
 LEDEZMA-GALICIA v. HOLDER 5033
sion we can reach only if we are at step one of Chevron,
where we have an “unambiguously expressed intent of Con-
gress.” Chevron, 467 U.S. at 843. If anything is clear about
the present case, it is that Congress has failed to unambigu-
ously express its intentions. As much as I am reluctant to
forge through these complicated acts, I will do so to point out
the ambiguities, and to put in context the BIA’s construction.

II

A

Congress first created the category of crimes denominated
“aggravated felonies” in the Anti-Drug Abuse Act of 1988
(“ADAA”), Pub. L. No. 100-690, 102 Stat. 4181. The ADAA
added the category of an alien “who is convicted of any
aggravated felony at any time after entry” to the pre-existing
statutory grounds for deportation, which were enumerated in
Section 241(a) of the Immigration and Nationality Act, 8
U.S.C. § 1251(a)(4). See ADAA § 7344(a). The ADAA
defined the term “aggravated felony” as “any drug trafficking
crime . . . any illicit trafficking in any firearms or destructive
devices . . . or any attempt or conspiracy to commit any such
act, committed within the United States.” Id. § 7342. In 1988,
the crime for which Ledezma had been convicted—sodomy
for sexually molesting a minor—did not fall within this origi-
nal definition of aggravated felony.

The provision adding aggravated felony as a ground for
deportation was immediately followed by an applicability
clause:

(b) APPLICABILITY. — The amendments made by
subsection (a) shall apply to any alien who has been
convicted, on or after the date of the enactment of
this Act, of an aggravated felony.

ADAA § 7344(b). Thus, under the ADAA, the deportation
provisions for aggravated felons applied only prospectively to
5034 LEDEZMA-GALICIA v. HOLDER
aliens convicted of an aggravated felony on or after Novem-
ber 18, 1988. It follows that as of 1988 Ledezma would not
fall under the new deportation provisions both because his
crime did not qualify and because he had been convicted prior
to this date.

B

In 1990, Congress passed the Immigration Act of 1990 (the
“IMMAct”), Pub. L. No. 101-649, 104 Stat. 4978, “to change
the level, and preference system for admission, of immigrants
to the United States, and to provide for administrative natural-
ization, and for other purposes.” Id. The IMMAct did not
merely amend prior law, it overhauled § 241(a) by repromul-
gating the entire section. Thus, § 602 replaced the grounds for
deportation in § 241(a) with a revised list that continued to
include conviction for an “aggravated felony.” IMMAct
§ 602(a); see INA § 241(a)(2)(A)(iii). Section 602(c)
described how the revised section would apply:

(c) SAVINGS PROVISION — Notwithstanding
the amendments made by this section, any alien who
was deportable because of a conviction (before the
date of the enactment of this Act) of an offense
referred to in paragraphs (15), (16), (17), or (18) of
section 241(a) of the Immigration and Nationality
Act, as in effect before the date of the enactment of
this Act, shall be considered to remain so deportable.
Except as otherwise specifically provided in such
section and subsection (d), the provisions of such
section, as amended by this section, shall apply to all
aliens described in subsection (a) thereof notwith-
standing that (1) any such alien entered the United
States before the date of the enactment of this Act,
or (2) the facts, by reason of which an alien is
described in such subsection, occurred before the
date of the enactment of this Act.
 LEDEZMA-GALICIA v. HOLDER 5035
The meaning of the first sentence is clear: any alien who
could have been deported for certain acts before the passage
of the IMMAct can still be deported.

The second sentence is a nightmare. The sentence begins
“[e]xcept as otherwise specifically provided in such section
and subsection (d).” It is unclear what “such section” means.
One possibility (favoring Ledezma) is that “such section”
refers to INA § 241(a) as in effect before the enactment of the
IMMAct, which might include the “applicability” provision in
ADAA § 7344(b). Because § 7344(b) “specifically
provide[s]” that the “aggravated felony” category does not
apply to crimes committed prior to November 18, 1988, under
this reading, IMMAct § 602(c) could except Ledezma from
deportation on that ground. A second possibility (favoring the
government) is that the second reference in § 602(c) to “such
section” makes it clear that it is “such section, as amended by
this section.” If “such section” refers to § 241(a) of the INA,
as amended by the IMMAct, then § 241(a), as amended, is
retroactive and an alien (like Ledezma) who committed a
qualifying felony before 1988 may be deported. To sum,
under the first interpretation, we would read § 602(c) to say:

Except as otherwise specifically provided by former
INA § 241(a), INA § 241(a), as amended by
IMMACT § 602(a), shall apply to all aliens
described in section INA § 241(a) notwithstanding
that (1) any such alien entered the United States
before the date of the enactment of this Act, or (2)
the facts, by reason of which an alien is described in
such subsection, occurred before the date of the
IMMAct.

If the second interpretation prevailed, we would read § 602(c)
in this way:

Except as otherwise specifically provided, INA
§ 241(a), as amended by IMMAct § 602(a), shall
5036 LEDEZMA-GALICIA v. HOLDER
apply to all aliens described in section INA § 241(a)
notwithstanding that (1) any such alien entered the
United States before the date of the enactment of this
Act, or (2) the facts, by reason of which an alien is
described in such subsection, occurred before the
date of the IMMAct.

In my view, the latter reading is consistent with the overall
theme of § 602, which expands rather than restricts the stat-
ute’s applicability. It is also consistent with the idea that
IMMAct was a recodification of INA § 241, because it means
that § 602(c) is the sole provision we need consult to deter-
mine § 602(a)’s applicability. I believe that the second sen-
tence creates a rule, applicable to all of the provisions of INA
§ 241(a), that (unless the Act specifically directs otherwise)
an alien is deportable for the enumerated grounds even if such
conduct occurred before the date of the IMMAct was enacted.
I admit, however, that the second sentence of § 602(c) is so
badly written that no one can opine on its meaning with abso-
lute confidence. In any event, enactment of the IMMAct had
no immediate impact on Ledezma’s immigration status,
because “sexual abuse of a minor” was not yet defined as an
“aggravated felony,” and therefore was not a ground for
deportation under INA § 241(a).

C

In the Illegal Immigration Reform and Immigrant Respon-
sibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, div. C,
title III, 110 Stat. 3009-546, Congress added “sexual abuse of
a minor” to the definition of aggravated felony, rendering
Ledezma’s sodomy conviction for sexually abusing a minor
a deportable offense. See IIRIRA § 321(a)(1), codified at 8
U.S.C. § 1101(a)(43)(A). Furthermore, Congress explicitly
provided that this new definition of aggravated felony applied
retroactively. IIRIRA § 321(b) provided:

EFFECTIVE DATE OF DEFINITION. — Section
101(a)(43) (8 U.S.C. 1101(A)(43)) is amended by
 LEDEZMA-GALICIA v. HOLDER 5037
adding at the end the following new sentence: “Not-
withstanding any other provision of law (including
any effective date), the term applies regardless of
whether the conviction was entered before, on, or
after the date of enactment of this paragraph.”

Additionally, Congress provided that “[t]he amendments
made by this section shall apply to actions taken on or after
the date of the enactment of this Act, regardless of when the
conviction occurred.” IIRIRA § 321(c). When read together,
the two provisions required that the modified definition of
aggravated felony apply to convictions that occurred before
the enactment of IIRIRA, but only if the immigration pro-
ceeding were initiated after enactment of the Act.1

To summarize, in 1988, Congress made aliens convicted of
an aggravated felony deportable. ADAA § 7344(a). The term
“aggravated felony” was narrowly defined and did not include
1
Although IIRIRA § 321(c) clearly applies these definitional changes
retroactively, this fact does not resolve the present case. Contrary to the
government’s position, and subsequent to its briefing in this case, we held
that § 321(c) did not retroactively apply the “substantive immigration con-
sequences” resulting from the changed definition of aggravated felony.
Lopez-Castellanos v. Gonzalez, 437 F.3d 848, 852 (9th Cir. 2006). This
holding is in direct conflict with the position taken by the First and Second
Circuits, which the government relied on in its briefs. See Sousa v. INS,
226 F.3d 28, 33-34 (1st Cir. 2000) (“[I]n IIRIRA, Congress made quite
clear its intent to apply the enlarged definition retroactively and this
explicit provision makes sense only if Congress also intended that this
enlarged definition trigger removal, regardless of when the crime
occurred.”); Kuhali v. Reno, 266 F.3d 93, 110-11 (2d Cir. 2001) (finding
that a “1980 conviction is clearly encompassed by the new provisions”).
We failed to recognize the conflict.
Effectively, IIRIRA § 321(c) provides a second avenue for the conclu-
sion reached by the BIA. See Lettman, 22 I. & N. Dec. at 368 n.4 (declin-
ing to address the impact of IIRIRA § 321(c)). I note this because the
result we reach today conflicts not only with the Fourth and Eleventh Cir-
cuits, see infra, but, as a result of Lopez-Castellanos, with the First and
Second Circuits as well.
5038 LEDEZMA-GALICIA v. HOLDER
sexual abuse of a minor. ADAA § 7342. Congress provided
that the aggravated felon provision would not apply retroac-
tively to aliens who were convicted prior to the enactment of
the ADAA. ADAA § 7344(b). In 1990, Congress generally
revised the grounds for deportation in the INA. IMMAct
§ 602(a). Congress expanded the definition of aggravated fel-
ony, but the definition still did not include sexual abuse of a
minor. IMMAct § 501. Simultaneously, Congress provided
that the new deportation provisions would apply to aliens
even if the facts making them deportable occurred before
enactment of the IMMAct, thus overriding the previous appli-
cability provision. Finally, in 1996, Congress amended the
definition of aggravated felony to include sexual abuse of a
minor, thus making Ledezma an alien convicted of an aggra-
vated felony. IIRIRA § 321(a)(1). Congress chose to apply
the amended definition retroactively to convictions that
occurred prior to the enactment of IIRIRA. Id. § 321(b). Read
together, these immigration statutes made Ledezma subject to
removal.

III

A

In a lengthy decision in In re Lettman, the BIA reviewed
these acts, the legislative history, prior judicial decisions and
the arguments on both sides. It then held that an alien is sub-
ject to deportation regardless of the date of conviction if his
crime fits within the definition of aggravated felony. 22 I. &
N. Dec. 365, 366 (BIA 1998) (en banc). The BIA concluded
that the language of IMMAct § 602(c) “eliminated the date
restriction on the aggravated felony ground set forth in the
ADAA.” Id.

The BIA began from the premise that IMMAct § 602(a)
“completely revised the deportation grounds that were found
in section 241(a) of the Act,” by reorganizing, renumbering
certain grounds, and substantively revising the grounds for
 LEDEZMA-GALICIA v. HOLDER 5039
deportation. Id. at 371. “Section 602(a) of the 1990 Act was
therefore intended to replace former section 241(a) . . . in its
entirety.” Id.

The Board then turned to the effect of § 602(a). It “ac-
knowledge[d] from the outset that the second sentence of sec-
tion 602(c) is difficult to decipher, even after considerable
examination,” and found “it to be an ambiguous provision,
which is capable of different readings . . . .” Id. at 372. After
considering the arguments of the parties and of amici, the
Board concluded that “such section” must refer to INA § 241,
as amended by the IMMAct, and that “except as otherwise
provided in section 241, as amended in 1990, an alien is
deportable for an enumerated ground despite the date of entry
or the date of the underlying facts which establish deportabili-
ty.” Id. The BIA reasoned that, although the matter was not
free from doubt, it made “no sense” that Congress would
“enact a whole new provision, yet keep the former version
perpetually intact.” Id. The rule adopted by the BIA was
straightforward: “any alien who has been convicted of a crime
defined as an aggravated felony, and who was placed in
deportation proceedings on or after March 1, 1991, is deport-
able regardless of when the conviction occurred.” Id. at 378.

The Eleventh Circuit reviewed the BIA’s decision in Lett-
man v. Reno, 207 F.3d 1368 (11th Cir. 2000), and agreed with
its analysis. In an opinion by our own Judge Goodwin, the
court held that “INA section 241(a)(2)(A)(iii) authorizes the
deportation of aliens convicted of aggravated felonies at any
time after entry.” Id. at 1369. As the court explained the prob-
lem:

Our decision . . . turns on whether, as the BIA held,
the aggravated felony deportation ground applies
“notwithstanding . . . that the facts . . . occurred
before the date of this Act.” IMMACT § 602(c). The
question depends largely on the application of “such
section” in section 602(c). If “such section” refers to
5040 LEDEZMA-GALICIA v. HOLDER
the aggravated felony ground with the date restric-
tion intact, as enacted by the ADAA in 1988 (prior
to IMMACT), then the language stating “[e]xcept as
otherwise specifically provided in such section“
would remove the aggravated felony ground from
the ambit of [§ 602(c)]. On the other hand, as the
Government argues, if “such section” refers to the
aggravated felony ground without the date restric-
tion, as enacted by IMMACT (which did not
expressly reenact the date restriction), then
[§ 602(c)] survives to effect deportability, unaffected
by [ADAA § 7344(b)].

Id. at 1371 (parentheticals omitted). The court concluded that
the “BIA reasonably interpreted ‘such section’ to refer to the
aggravated felony ground without the ADAA date restric-
tion.” Id.

The Fourth Circuit arrived at the same conclusion in Lewis
v. INS, 194 F.3d 539 (4th Cir. 1999). The court acknowledged
the ambiguity of the statute, stating it “cannot conclude that
congressional intent is clear and unequivocal here.” Id. at 545.
The court concluded that “the Board’s interpretation is cer-
tainly reasonable—indeed, we would likely reach the same
conclusion.” Id.2
2
The Second Circuit came to a different conclusion in Bell v. Reno, 218
F.3d 86 (2d Cir. 2000). Agreeing that § 602(c) is ambiguous, and finding
the alien’s arguments “abl[e]” and the government’s arguments “convinc-
ing[ ],” it nevertheless concluded that the BIA’s decision in Lettman was
“not sustainable because it runs afoul of the long-standing presumption
against the retroactive application of ambiguous statutory provisions.” Id.
at 92, 93 (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). We
rejected the Landgraf argument, en banc, in Hovsepian. See 359 F.3d at
1156-57.
 LEDEZMA-GALICIA v. HOLDER 5041
B

The majority opinion has not improved on the BIA’s rea-
soning. Indeed, it falls well short of demonstrating that the
BIA’s construction of a badly written set of statutes is not a
permissible one.

1

The majority concludes that the BIA’s interpretation of its
governing statutes is “not entitled to Chevron deference, as its
reasoning cannot be squared with the actual statute.” Maj. Op.
at 5006. It concludes that the BIA erred because “it turns out”
that “it does not matter whether IMMAct § 602(c) should be
read to refer to the pre-IMMAct or the post-IMMAct version
of § 241(a).” Maj. Op. at 5004.

My first objection is to the majority’s approach, which
effectively turns Chevron into a nullity. The Supreme Court
requires us to first determine “[i]f the intent of Congress is
clear” and only then determine if the “the agency’s answer is
based on a permissible construction of the statute.” Chevron
467 U.S. at 842-43. The majority ignores this counsel and
proceeds straight to whether or not it agrees with the BIA’s
construction. The statutes here are ambiguous; we must rec-
ognize those ambiguities and analyze whether the agency’s
approach is reasonable in light of them, not substitute our own
construction as if we were reviewing the statutes de novo.

However, even assuming for the moment that the majori-
ty’s approach is correct, its logic is not. The majority argues
that because ADAA § 7344(b) was not included in the text of
the INA, the IMMAct could not have affected ADAA
§ 7344(b). Maj. Op. at 5004-06. I believe the majority to be
in error on this point.

There are essentially two problems with the majority’s the-
ory. First, the majority is wrong because ADAA § 7344(b) no
5042 LEDEZMA-GALICIA v. HOLDER
longer applies to INA § 241(a). Section 7344(b) only modi-
fied the changes imposed by § 7344(a), see ADAA § 7344(b)
(“The amendments made by subsection (a) shall apply to
. . .”), and § 7344(a) was overwritten by IMMAct § 602(a).
Indeed, after § 602(a) rewrote INA § 241(a), and thus made
§ 7344(a) inoperative, the BIA reasonably concluded—
correctly, in my view—that the retroactivity provision
imposed by ADAA § 7344(b) no longer applied. See Lettman,
22 I. & N. Dec. at 372.

Second, if the majority were correct, and ADAA § 7344(b)
was not included in any part of the INA, then § 7344(b) still
cannot be an exception to the broad retroactivity provision in
IMMAct § 602(c). Section 602(c) applies a general rule of
retroactivity, “[e]xcept as otherwise specifically provided in
such section [of the INA].”1 If ADAA § 7344(b) was never
part of any provision of the INA, then I simply cannot under-
stand how the mandate of ADAA § 7344(b) was “specifically
provided in such section.” In other words, once the majority
concludes that § 7344(b) is entirely excluded from the INA,
it cannot conveniently slip § 7344(b) back into the INA for
purposes of applying the “except” clause under IMMAct
§ 602(c).

In sum, the BIA reasonably concluded ADAA § 7344(b) no
longer applies because § 7344(b) only modifies § 7344(a) and
the amendments imposed by § 7344(a) were overwritten in
1990. Moreover, taking the majority’s claim that § 7344(b)
was never part of the INA as true, § 7344(b) cannot serve as
a “section” of the INA that would bring it within the excep-
tion enumerated in IMMAct § 602(c). The BIA committed no
error here, and certainly no error that would allow us to ignore
Chevron.
1
For purposes of this argument I assume that the majority agrees that
“such section” refers to the INA, even though it fails to express exactly
what “such section” must unambiguously mean.
 LEDEZMA-GALICIA v. HOLDER 5043
2

Having concluded that Chevron does not apply because the
BIA’s “reasoning cannot be squared with the actual statute,”
Maj. Op. at 5006, the majority nonetheless proceeds to apply
the first prong of Chevron. It concludes that “when the canon
militating against implied repeal is fully and correctly applied,
it becomes clear that there is no statutory ambiguity to resolve
here, and thus no reason to defer to the agency.” Id. at
5006-07.

I again object to the approach. The majority puts the cart
before the horse: having concluded that the BIA’s construc-
tion deserves no deference, asking whether the statute is
ambiguous is simply a foregone conclusion. Chevron instructs
us to first determine “[i]f the intent of Congress is clear” and
then determine if the “the agency’s answer is based on a per-
missible construction of the statute.” 467 U.S. at 842-43. The
majority has turned this analysis on its head.

Just as the majority incorrectly concluded that Chevron did
not apply in toto, it erroneously applies Chevron pro tanto. It
is simply untenable—and contrary to the views of the BIA,
the Fourth and Eleventh Circuits, and, modestly, me—to
claim that the relevant statutory provisions here have “only
one apparent and unambiguous meaning.” Maj. Op. at 5007.
Indeed, even Ledezma consistently argues that the statutory
provisions at issue here are unequivocally ambiguous. In
Ledezma’s own words, “Given the statute’s language, it is
apparent that there are different, possible interpretations of the
‘exception clause’ of section 602(c)”; moreover, “every judi-
cial and administrative body to consider the matter has found
that the ‘exception clause’ of section 602(c) is ambiguous.” I
fully agree with Ledezma that “[t]he judicial consensus is that
the exception clause of section 602(c) is ambiguous.”

In fact, Ledezma’s entire argument on appeal is based on
the fact that the retroactive application of the statute against
5044 LEDEZMA-GALICIA v. HOLDER
him is ambiguous and therefore a violation of the clear state-
ment rule established in St. Cyr v. INS, 533 U.S. 289 (2001)-
an argument that the majority must abandon because it is fore-
closed by Hovsepian. Ignoring even Ledezma’s pleas to find
ambiguity, the majority concludes that a canon of statutory
construction resolves any uncertainty. As outlined below, I
cannot agree.

3

The majority makes at least two errors in its statutory inter-
pretation analysis. First, even if this case involved an implied
repeal—which, as explained below, I believe it does not—the
BIA did not err in concluding that IMMAct repealed the retro-
activity provision in ADAA § 7344(b) as applied to the
changes implemented by ADAA § 7344(a). The presumption
against implied repeals is just that: a presumption, not a rule.
See United States v. Novak, 476 F.3d 1041, 1052 (9th Cir.
2007) (applying the “presumption against implied repeals”
and finding that the presumption was rebutted by the language
of the statute). The BIA has fully explained why any pre-
sumption is overcome: its “understanding [was] that the pur-
pose of section 602 of the 1990 Act was to completely revise
the deportation grounds.” Lettman, 22 I. & N. Dec. at 372.
The IMMAct, the BIA explained, was a “wholesale revision
of [8 U.S.C. § 1251],” a “new statutory scheme,” embracing
“comprehensive changes.” Id. at 374. Based on that premise,
BIA’s conclusion makes perfect sense:

With this in mind, we find it difficult to believe that
Congress intended to revise the deportation grounds,
but still have the former Act ultimately determine
deportability. In other words, it makes no sense to
enact a whole new provision, yet keep the former
version perpetually intact.

Id. at 372.
 LEDEZMA-GALICIA v. HOLDER 5045
A 1991 House Committee report supports the BIA’s inter-
pretation, describing the statute in the following terms:

The [IMMAct] substantially revised the immigration
law of the United States. In fact, the Act constituted
the most comprehensive re-write of immigration law
in 66 years. Every major area of the law, with the
one exception of refugee matters, was amended.

H. Rep. No. 102-383, at 2 (1991), reprinted in 1991
U.S.C.C.A.N. 1372, 1372. Indeed, even today’s majority
notes that “Congress overhauled deportation law by passing
the IMMAct.” Maj. Op. at 4998. The BIA can hardly be
faulted for coming to the same conclusion.

A repeal through a wholesale revision of the section is not
the sort of implied repeal that is discouraged by our presump-
tion. A statutory repeal may be properly inferred “where the
latter Act covers the whole subject of the earlier one and is
clearly intended as a substitute.” Nat’l Ass’n of Home Build-
ers v. Defenders of Wildlife, 551 U.S. 644, 663 (2007) (inter-
nal quotation marks omitted) (quoting Branch v. Smith, 538
U.S. 254, 273 (2003)).4 The BIA’s construction of § 602 is
well within the general principles applicable to implied
repeals.
4
The majority’s reliance on National Association of Home Builders is
particularly ironic. In that case the Supreme Court reversed us for failing
to defer to an agency’s rational judgment. 551 U.S. 644, 667-70 (2007).
In addition to finding that our decision in that case injected an implied
repeal into the statute, id. at 662-64, the Court scolded us for “simply dis-
regard[ing]” the agency’s reasonable interpretation of its governing stat-
ute, id. at 668. The present case is the opposite side of the same coin. The
majority here repaints an agency decision as an implied repeal in order to
disregard the BIA’s reasonable interpretation of its governing statute. The
lesson to be gleaned from National Association of Home Builders is that
“we defer to [an agency’s] reasonable interpretation,” not that we apply
hyper-technical review to determine if the agency’s decision could be
viewed as an implied statutory repeal. Id. at 671.
5046 LEDEZMA-GALICIA v. HOLDER
The majority takes consolation in the fact that its decision
today places only “a small puncture in a broad shield.” Maj.
Op. at 5010 (quotation marks and citation omitted). I disagree.
The majority has turned a broad shield into a sieve. According
to the majority’s reasoning, any section, whether in the INA
or not, can stand as an exception to the retroactivity rule laid
out in IMMAct § 602(c). This appears to include retroactivity
provisions for all twenty-one categories of crimes included in
the definition of “aggravated felony,” see 8 U.S.C.
§ 1101(a)(43), as well as “the approximately thirty grounds
for deportation and fourteen categories of deportable criminal
offenses that IMMAct § 602(a) listed.” Maj. Op. at 5010.
What was Congress’s point in placing a catch-all retroactivity
provision in the statute if every previous retroactivity provi-
sion, whether in the INA or not, is still preserved? The major-
ity has not simply created a small exception to a general rule,
but ignored the language of the statute and made an otherwise
straightforward rule into a mess of competing retroactivity
provisions that vary depending on the particular provision at
issue.

Second, instead of applying a statutory canon and explain-
ing why it resolves any ambiguity, the majority skips straight
to analyzing whether or not Congress impliedly repealed
ADAA § 7344(b). Maj. Op. at 5007. In addition to avoiding
the problem of stating what the statute actually means,3 this
approach also allows the majority to avoid analyzing whether
this case even involves an implied repeal: which, not surpris-
ingly, it does not. IMMAct § 602(a) did not impliedly alter
INA § 241(a)-it boldly erased it and rewrote it. By redrafting
INA § 241(a) in IMMAct § 602(a), Congress severed § 241(a)
3
Indeed, other than making multiple conclusory statements, Maj. Op. at
5006-07 (“[O]nce the presumption is applied the statute is not ambigu-
ous.”), (“[T]here is no statutory ambiguity to resolve here, and thus no rea-
son to defer to the agency.”), “[T]he statute is not susceptible to multiple
readings.”), ([The statute] admits of only one apparent and unambiguous
meaning.”), the majority does not provide a definitive construction.
 LEDEZMA-GALICIA v. HOLDER 5047
from § 7344(b) and applied a new provision in IMMAct
§ 602(c). Indeed, Congress had no need to repeal ADAA
§ 7344(b) because § 7344(b), by its terms, only applied to
amendments made by § 7344(a), not to INA § 241(a) gener-
ally or to amendments made by IMMAct § 602(a).

The majority acts as if Congress has simply redesignated
the amendments made by ADAA § 7344(a) as a new section
of the INA. It did not: Congress chose to “amend” INA
§ 241(a) by rewriting its provisions. Congress knows the dif-
ference between redesignating a section and amending one.
Compare IMMAct § 602(a) (“amending” INA § 241(a) and
rewriting it completely) with IMMAct § 602(b)(2)(B)
(“redesignating” former § 241(e) as § 241(b)). It chose not to
redesignate the relevant section here, and we should not act
as if it did.

My greatest concern is that the majority allows appellate
courts to make an end-run around Chevron. Under the majori-
ty’s rationale, agencies receive no deference if a panel can
point to some other statute that might conflict with the agen-
cy’s interpretation. By the majority’s lights, the agency must
ask us if we agree with its interpretation before attempting to
exercise its expertise. The Supreme Court has recently
reminded us that “[a]n agency’s interpretation of the meaning
of its own regulations is entitled to deference unless plainly
erroneous or inconsistent with the regulation.” Nat’l Ass’n of
Home Builders, 551 U.S. at 672. The majority has failed to
provide a cogent explanation as to why such deference does
not apply here.

To sum things up, the majority argues that because the BIA
was wrong (which it was not), we need not afford Chevron
deference (which we do). The majority then goes on to apply
step one of Chevron (which it said it wouldn’t do), invokes
the presumption against implied repeals (which it applies as
a rule rather than a presumption), and disposes of the case by
purportedly applying the canon against implied repeals
5048 LEDEZMA-GALICIA v. HOLDER
(which it gets wrong). All of this leads the majority to the
conclusion that the statutes are only capable of one meaning
(which is at odds with Ledezma’s argument, the BIA, and
every other Circuit to look at the question). Because Chevron
clearly applies to this case and the presumption against
implied repeals neither applies nor forecloses the BIA’s con-
struction, I would defer to the BIA’s reasonable interpretation
of these ambiguous statutes.

4

Finally, the majority claims that interpreting § 602(c) to
have impliedly repealed ADAA § 7344(b) will produce “ex-
ceedingly odd results” when read in conjunction with
IMMAct § 501-a statute that none of the parties has raised in
its arguments on appeal, that has no application to the present
dispute, and that the BIA has not had an opportunity to inter-
pret. Maj. Op. at 5012-13. I will address the issue briefly to
respond to the majority’s claims that § 501 controls the out-
come of the present case.

IMMAct § 501(a) included a number of amendments that
expanded the definition of “aggravated felony.” IMMAct
§ 501(b) provided that two of these amendments “shall be
effective as if included in the enactment of [ADAA § 7342].”
The majority first argues that this reference necessarily indi-
cates an intention to leave § 7344(b) in force; otherwise, the
ADAA retroactivity provision would be the same as the
IMMAct retroactivity provision. Maj. Op. at 5013-14. This
argument is easily dispensed by simply pointing out that the
majority’s perceived oddity is actually the current status of
the law. See IIRIRA § 321(b) (stating that the definition of
aggravated felony “applies regardless of whether the convic-
tion was entered before, on, or after the date of enactment of
this paragraph”).4
4
The majority also appears to argue that § 7344(b) must continue to
apply or Congress’s reference to the ADAA in § 501(b) would be super-
 LEDEZMA-GALICIA v. HOLDER 5049
The majority also claims that applying § 501(b) “as having
incorporated the temporal limitations of the ADAA with
regard only to some of the IMMAct’s definitional amend-
ments would produce exceedingly peculiar results.” Maj. Op.
at 5015. The majority proclaims that Congress could not have
possibly intended to protect “some, but not all, aggravated fel-
ons who committed crimes before the aggravated felony
ground of deportation was created.” Maj. Op. at 5015. Why
not? Under the majority’s reading of the statute, some
changes to the aggravated felony definition in the IMMAct
apply to aliens convicted after 1988 while others would only
apply to aliens convicted after 1990. The majority fails to rec-
ognize that under any construction of these statutory provi-
sions, deportability will turn on a different time period for
different aliens depending on their crime of conviction. These
kinds of anomalies often result when Congress amends stat-
utes in a piecemeal fashion. The solution is not to enforce our
own policy judgment as to how the statute should operate, but
to defer to the agency that is charged with interpreting
ambiguities in its governing statutes.

Moreover, in attempting to cure the perceived oddities in
the BIA’s construction, the majority’s interpretation of the
statute produces equally odd results. The majority recognizes
(as it must) that an alien convicted of a firearm offense prior
to 1988 is deportable, see Hovsepian v. United States, 359
F.3d 1144, 1156-57 (9th Cir. 2004) (en banc); Maj. Op. at
5021 (recognizing that “[d]espite [the ADAA’s] temporal lim-
itation, we have twice held that IMMAct § 602(c) rendered
aliens deportable based on their pre-ADAA convictions”),
while an alien convicted of sexually molesting a minor at the

fluous. However, this is not the only possible construction giving meaning
to this language. Section 501(b) could also be read to apply the retroactiv-
ity provision of § 7344(b) to only the two definitional changes outlined in
IMMAct § 501(b). Interpreting § 501(b), however, is not an issue properly
raised before us; I would save a definitive construction to a panel informed
by a decision of the BIA, a full record on the issue, and argument by coun-
sel.
5050 LEDEZMA-GALICIA v. HOLDER
same time is not. With all due respect, “[t]his division would
make no sense,” Maj. Op. at 5016, and this absurdity is only
multiplied by the hodgepodge of retroactivity provisions that
will apply to IMMAct § 602(a) after the majority’s re-
construction of IMMAct § 602(c).

IV

There is a final, compelling reason why the majority is in
error. The BIA’s reading of the interaction between the
ADAA and the IMMAct explained above is not only consis-
tent with, but is virtually compelled by, our en banc decision
in Hovsepian v. United States, 359 F.3d 1144 (9th Cir. 2004).
In Hovsepian, we held that IMMAct § 602(c) evidenced clear
congressional intent to legislate retroactively and that the
IMMAct applies to pre-ADAA convictions. See 359 F.3d at
1156. Hovsepian involved a different removability ground—a
firearms conviction under 8 U.S.C. § 1227(a)(2)(C), rather
than an aggravated felony conviction under 8 U.S.C.
§ 1227(a)(2)(A)(iii)—but this distinction has no bearing on
the retroactive application of those grounds for removal, since
the applicability provisions of both removability grounds are
essentially identical. The applicability provision for the depor-
tation for weapons violation that Hovsepian held did not sur-
vive the IMMAct reads:

APPLICABILITY. — The amendment made by sub-
section (a) shall apply to any alien convicted, on or
after the date of the enactment of this Act, of pos-
sessing any firearm or destructive device referred to
in such subsection.

ADAA § 7348(b). The applicability provision for aggravated
felony convictions that the majority argues survives the
IMMAct, reads:

APPLICABILITY. — The amendments made by
subsection (a) shall apply to any alien who has been
 LEDEZMA-GALICIA v. HOLDER 5051
convicted, on or after the date of the enactment of
this Act, of an aggravated felony.

ADAA § 7344(b). Thus the interplay between the ADAA and
the IMMAct is the same for firearms offenses as it is for
aggravated felons.

I cannot see how we can possibly reconcile Hovsepian with
the majority’s decision. The majority attempts to distinguish
the two provisions on the grounds that IMMAct § 602(a) sub-
stantively changed the firearms ground for deportability from
the version contained in the ADAA, whereas § 602(a) made
no change to the substance of the aggravated felony ground
for deportation. Maj. Op. at 5019. That change occurred in the
INA’s definitional section. IMMAct § 501.

The majority is correct about this structural distinction, but
I cannot comprehend why this difference has any bearing on
the post-IMMAct survival of the retroactivity provisions of
the ADAA. The Eleventh Circuit considered and expressly
rejected precisely this attempt to distinguish the applicability
provisions for firearms offenses and aggravated felonies. In
Lettman, the court explained that it had already addressed the
effect of IMMAct § 602(c) on the former firearms ground for
deportation, and held that “the effective date restrictions
found in the old statute no longer apply.” 207 F.3d at 1372
(quoting Lopez-Amaro v. INS, 25 F.3d 986, 988 (11th Cir.
1994), and citing, inter alia, United States v. Yacoubian, 24
F.3d 1 (9th Cir. 1994)). The court explained that the petition-
er’s attempt to distinguish that case “by asserting that Con-
gress made ‘substantive’ changes to the firearm offense
ground, but ‘merely redesignated’ the aggravated felony
ground” failed. Id. It “[found] nothing to compel the BIA to
conclude that Congress intended those convicted of firearm
offenses to be treated differently than those convicted of
aggravated felonies.” Id. The court reasoned that “[o]n the
contrary, giving the grounds parallel treatment is consistent
5052 LEDEZMA-GALICIA v. HOLDER
with Congress’s intent to make the INA more rational and
easier to understand.” Id. (citation and brackets omitted).

The Eleventh Circuit’s analysis is consistent with
Hovsepian and entirely persuasive. Perhaps this distinction
between the statutes might be relevant if the IMMAct
amended the definition of aggravated felony in a way that
encompassed Ledezma for the first time. But it was not the
1990 IMMAct that defined “aggravated felony” to include
sexual abuse of a minor, but the 1996 IIRIRA, and IIRIRA
could not have been clearer that its amendments applied “re-
gardless of when the conviction occurred.” IIRIRA § 321(c);
see also IIRIRA § 321(b) (making changes to the definition
of aggravated felony retroactive). Moreover, the retroactivity
of the aggravated felony definition is well established in our
precedent. See, e.g., United States v. Maria-Gonzalez, 268
F.3d 664, 668-70 (9th Cir. 2001).

The only question is whether IMMAct makes the general
aggravated felony deportability provision retroactive, and in
doing so supersedes the ADAA applicability provision. The
BIA looked carefully at that difficult question and concluded
that it did. This is a reasonable conclusion worthy of defer-
ence.

*****

I would deny Ledezma’s petition for review. I respectfully
dissent.