HOU

Interim Decision #3178

MATTER OF HOU

In Deportation Proceedings

A-26190776

Decided by Board May 28, 1992

A conviction for an attempted firearms offense will not support a charge of
deportability under section 241(a)(2)(C) of the Immigration and Nationality Act, 8
U.S.C. § 1251(a)(2)(C) (Supp. II 1990).

CHARGE:
Order. Act of 1952—Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)]—Convicted of fire-
arms violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Barry C. Schneps, Esquire Matthew T. Adrian
Sachs and Spector, P.C. General Attorney
1375 Broadway, 24th Floor
New York, New York 10018

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated September 17, 1991, an immigration judge
found the respondent deportable under section 241(a)(2)(C) of the
Immigration. and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. II
1990), as an alien who had committed a firearms offense, denied his
application for relief under section 212(c) of the Act, 8 U.S.C.
§ 1182(c) (Supp. II 1990), for lack of statutory eligibility, and ordered
him deported from the United States to Canada.' The respondent
timely appealed from that decision. The appeal will be sustained and
the proceedings will be terminated.
The respondent is a 29-year-old native of Hong Kong and citizen of
Canada who adjusted his status to that of a lawful permanent resident

'Certain sections of the Immigration and Nationality Act were redrafted and
redesignated by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978.
Since the decision below discusses certain statutory grounds of deportability as
constituted both before and after the passage of that legislation, reference to those
statutes will accordingly specify whether the provision under discussion is as currently or
formerly enacted.

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Interim Decision #3178

of the United States on June 1, 1984. On July 9, 1990, the respondent
pleaded guilty to two counts of attempted criminal possession of a
weapon in the third degree, in violation of sections 110 and 265.02(3)
and (4) of the New York Penal Law.? Consequently, the respondent
was sentenced to a definite term of imprisonment of 1 year, of which
he served 8 months. As a result of this conviction, the Immigration
and Naturalization Service charged the respondent with deportability
under section 241(a)(2)(C) of the Act as an alien convicted of a
firearms offense.
At a deportation hearing conducted on June 25, 1991, the respon-
dent admitted that he had been convicted as described above and
conceded deportability as charged. At a continued hearing on Septem-
ber 17, 1991, however, the respondent withdrew his prior concession
and claimed that he was not deportable under section 241(a)(2)(C) of
the Act on the ground that attempted firearms violations are not
encompassed by that provision. The respondent then requested a
further continuance in order to secure a copy of a written transcript of
his criminal proceedings. That request was denied.
In his oral decision, the immigration judge found the respondent
deportable on the basis of his admitted conviction for attempted
possession of a weapon and characterized the sole issue in the case to
be the respondent's eligibility for relief from deportation under section
212(c) of the Act. In this regard, the immigration judge took note of
the Attorney General's recent determination in Matter of Hernandez-
Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), affd, 983 F.2d 231
(5th Cir. 1993), holding that grounds of deportability that do not
possess corresponding exclusion grounds are not subject to waiver
under section 212(c). Referencing this Board's earlier decision in
Matter of Granados, 16 I&N Dec. 726 (BIA 1979), affd, 624 F.2d 191
(9th Cir. 1980), the immigration judge concluded that the respondent's
ground of deportability for having committed a firearms-related
2 The pertinent statutes under which the respondent was convicted provide:
§ 110.00 Attempt to commit a crime
A person is guilty of an :attempt to commit a crime when, with intent to commit a
crime, he engages in conduct which tends to effect the commission of such crime.
§ 265.02 Criminal possession of a weapon in the third degree
A person is guilty of criminal possession of a weapon in the third degree when:

(3) He knowingly has in. his possession a machine-gun, firearm, rifle or shotgun
which has been defaced for the purpose of concealment or prevention of the
detection of a crime or misrepresenting the identity of such machine-gun, firearm,
rifle or shotgun; or
(4)He possesses any loaded firearm. Such possession shall not ... constitute a
violation of this section if such possession takes place in such person's home or
place of business.

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offense was such a nonwaivable ground of deportability under section
212(c). Finding him ineligible for any other form of relief from
deportation, the immigration judge ordered the respondent deported.
On appeal, the respondent renews his contention that a strict
construction of section 241(a)(2)(C) of the Act excludes "attempts" to
commit the substantive offenses enumerated therein and that he is not
therefore deportable as charged under that provision. In the alterna-
tive, the respondent claims that he is eligible to adjust his status to that
of a lawful permanent resident under section 245 of the Act, 8 U.S.C.
§ 1255 (1988). Finally, the respondent also claims that he is eligible
for a waiver under section 212(c) of the Act under color of Francis v.
INS, 532 F.2d 268 (2d Cir. 1976).3
In its brief in opposition to the respondent's appeal, the Service
concurs that the issue of the respondent's deportability has been
preserved for our review. It argues, however, that the language of
section 241(a)(2)(C) of the Act is sufficiently broad to include
convictions for attempted weapons violations, and further, that the
clear intent of Congress in enacting that section was to render
deportable aliens convicted of such offenses.
The sole issue in this case is whether an attempted weapons
violation is sufficient to sustain a charge of deportability under section
241(a)(2)(C) of the Act. That provision currently reads:
Certain firearm offenses. Any alien who at any time after entry is 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) is
deportable.
The respondent is correct in noting that the word "attempt" does
not appear in section 241(a)(2)(C) as currently drafted. In this respect,
we are also aware of the presumption that congressional intent is
normally deemed to be expressed by the plain meaning of the language
of the statute alone. See, e.g., Ardestani v. INS, 502 U.S. 129, 133-34
(1991), and cases cited therein. It is an equally well-established precept
of statutory interpretation, however, that the plain language of a
statute will not be given effect in cases in which its overall purpose
would thereby be frustrated. See, e.g., Church of the Holy Trinity v.
United States, 143 U.S. 457 (1892).

3 At an earlier hearing the respondent also expressed an intention to apply for
adjustment of status but failed to do so before the final hearing date. After entering his
oral decision, the immigration judge afforded the respondent an additional 10 days in
which to file an application for such relief. No application was ever filed, however. In
addition, we note in passing that, given our disposition of the respondent's appeal, we do
not consider his alternative claim of eligibility for relief under section 212(c) of the Act
under the rationale of Francis v. INS, supra.

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In keeping with the broad purpose of the immigration laws, we have
in the past rejected a strict interpretation of a similar ground of
deportability in an analogous case. Former section 241(a)(11) of the
Act, 8 U.S.C. § 1251(a)(11) (1988), (current version at section
241(a)(2)(B)(i), 8 U.S.C. § 125 I(a)(2)(B)(i) (Supp. II 1990)), previously
provided in pertinent part:
Any alien in the United States ... shall, upon the order of the Attorney General, be
deported, who-
... at any time has been convicted of a violation o1 or a conspiracy to violate,
any law or regulation of a State, the United States, or a foreign country relating to a
controlled substance ....
Like the current section 241(a)(2)(C) of the Act, former section
241(a)(11) did not explicitly list attempted violations of drug-related
crimes as deportable offenses. Emphasizing the broad coverage
implied by the phrase "relating to" in section 241(a)(11), however, this
Board held that such convictions did in fact render an alien deportable
under that section notwithstanding the absence of the term "attempt."
Matter of Bronsztejn, 15 I&N Dec. 281 (BIA 1974), affd, 526 F.2d
1290 (2d Cir. 1975). In reaching our conclusion, we took note of other
decisions in which convictions for attempted crimes rendered an alien
deportable under similar statutes. See Matter of V-, 4 I&N Dec. 100
(BIA 1950) (attempted bribery); Matter of 5-, 3 I&N Dec. 617 (BIA
1949) (attempted arson); Matter of De S-, I I&N Dec. 553 (BIA 1943)
(attempted smuggling); Matter of E-, 1 I&N Dec. 505 (BIA 1943)
(attempted compulsory prostitution of women); Matter of B-, 1 I&N
Dec. 47 (BIA 1941) (attempted fraud). 4
Were this case to be decided solely on the basis of the above
precedent decisions, we would likely agree with the Service's argument
that the language of section 241(a)(2)(C) of the Act is sufficiently broad
to include attempted firearms violations. 5 The grounds of deportabili-
4 In its brief in opposition to the respondent's appeal, the Service correctly points out
that no distinction is made for immigration purposes between an attempt to commit and
the actual commission of a crime involving moral turpitude. United States ex rel. Meyer
v. Day, 54 F.2d 336 (2d Cir. 1931); Matter of Awaijane, 14 I&N Dee_ 117 (BIA 1972). In
this context, however, because a "crime involving moral turpitude" is defined by the
actor's intent, an unsuccessful attempt to commit such a crime evidences the same
"malicious intention" as if the attempt had succeeded. Matter of Awaijane, supra, at
118-19. This reasoning is thus distinguishable from the holding in Matter of Bronsztejn,
supra, which relies on the broad coverage of the term "relating to" to encompass attempt
crimes.
5 We note a distinction between section 241(a)(2)(C) of the Act and the former section
24140(11). In Matter of Bronsztejn, supra, this Board rclicd on thc USG of thc phrasc
"relating to" in finding attempt violations included in section 241(a)(l I). Id. at 283.
Section 241(a)(2)(C), however, does not employ an identical construction, but instead
renders deportable aliens convicted under "any law" of purchasing, selling, possessing,

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ty at issue in those cases, however, have since been revised and
redesignated in the Immigration Act of 1990, Pub. L. No. 101-649,
104 Stat. 4978 ("1990 Act"), and amended by the subsequent
Miscellaneous and Technical Immigration and Nationality Amend-
ments of 1991, Pub. L. No. 102 - 232, 105 Stat. 1733 ("1991 Amend-
ments"). We believe the changes made by these two acts of legislation
and their relevant legislative history reflect a contrary congressional
intent and thus mandate a different result.
The first important change involves the former section 241(a)(11) of
the Act, which was at issue in Matter of Bronsztejn, supra. The
successor to that provision is the current section 241(a)(2)(B)(i), which
now explicitly includes attempted violations of controlled substance
laws. Although this amendment in essence codifies our earlier decision
in Matter of Bronsztejn, legislative materials may be found evidencing
Congress' belief that it was effecting a substantive change to the law.
Unfortunately, our task of determining congressional intent with
precision from the legislative history of the Immigration Act of 1990 is
not made an easy one, due to the almost complete lack of background
materials prepared in conjunction with the redrafting of the exclusion
and deportation grounds in that legislation. See, e.g., H.R. Cord'. Rep.
No. 955, 101st Cong., 2d Sess. 128-33 (1991). In another title of the
1990 Act, however, certain criminal provisions may be found that
offer, albeit derivatively, a significant insight into Congress' intent
with respect to changes made to the former section 241(a)(11) of the
Act.
Section 508(a) of the Immigration Act of 1990, 104 Stat. at 5051, is
entitled "Deportation for Attempted Violations of Controlled Sub-
stances Laws" and reads:
IN GENERAL. Section 241(a)(11) (8 U.S.C. 1251(a)(11)) is amended by inserting
"or attempt" after "conspiracy".
We first note that this provision is anomalous, given the reconstitu-
tion of section 241(a)(11) of the Act as section 241(a)(2)(B)(i), and is
without legal or practical effect, given that the former section
241(a)(11) no longer exists. Furthermore, as noted above, its replace-
ment provision already includes attempted violations relating to
etc., a firearm. In its brief on appeal, the Service cites in this respect to United States v.
Rosenson, 291 F. Supp. 874 (E.D. La. 1968), ard, 417 F.2d 629 (5th Cir. 1969), cert.
denied, 397 U.S. 962 (1970), in which the court held that a violation of "any of the
narcotic or marihuana laws" included attempts to commit violations of such laws. Id. at
878. Although the provision interpreted in Rosenson employed very similar statutory
language to section 241(a)(2)(C) of the Act, that case was not decided in the wake of
recent legislative action evidencing congressional intent with respect to its inclusion or
omission of the term "attempt" in drafting the statute in question.

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controlled substances. In a committee report to an earlier version of
section 508(a) in another pending bill (the Comprehensive Crime
Control Act of 1990, H.R. 5269, 101st Cong., 2d Sess. (1990)), the
House Committee on the Judiciary stated in pertinent part:
Current law (former section 241(a)(11) of the Act] renders deportable aliens who
have been convicted of violating, or conspiring to violate, any Federal or state law
regarding controlled substances. It does not make attempts to violate such law a
deportable offense. By contrast, a conspiracy or attempt to traffic in controlled
substances makes an alien an aggravated felon. Section 1507 [of the Comprehensive
Crime Control Act of 1990] corrects this oversight by making a conviction for
attempting to violate controlled substances laws a deportable offense.

H.R. Rep. No. 681, 101st Cong., 2d Sess., pt. 1, at 150 (1990),
reprinted in 1990 U.S.C.C.A.N. 6472, 6555-56.6
It is clear from the above that the House Judiciary Committee
believed that the addition of the term "attempt" to the former section
241(a)(11) of the Act would close a loophole in the law which allowed
aliens convicted of attempted crimes involving controlled substances
to defeat deportability. Although this loophole did not in fact exist due
to Matter of Bronsztejn, supra, the significance of the Committee's
report is that it reflects its belief that the addition of the term
"attempt" to former section 241(a)(11) of the Act constituted a
substantive amendment and further that, without it, attempt crimes
did not otherwise give rise to deportability under that provision.
We consider this evidence of Congress' intent in adding "attempt"
to the former section 241(a)(11) of the Act as favoring the respondent's
argument that the absence of that term from section 241(a)(2)(C)
excludes attempted firearms convictions as a ground for deportability.
The respondent also points out that the word "attempt" was recently

6 Seetion 508(a) of the 1990 Act has a somewhat complicated legislative history. That
provision appeared in H.R. 4300, 101st Cong., 2d Sess. (1990). In addition, an exact
counterpart of section 508(a) was also before Congress in section 1507 of the then-
proposed Comprehensive Crime Control Act of 1990, H.R. 5269, whose criminal alien
provisions were "virtually identical" to those of H.R. 4300. H.R. Rep. No. 681, supra, at
147, reprinted in 1990 U.S.C.C.A.N. at 6553. Compare H.R. 5269, title XV, with
Immigration Act of 1990, title V. On August 1, 1990, however, the House Judiciary
Committee approved a substitute bill to H.R. 4300, which omitted the criminal alien
provisions. The House passed that substitute legislation on October 3, 1990. In
conference over the course of the next few weeks, the criminal alien provisions of the
crime control bill, H.R. 5269, were transferred to the immigration legislation now
designated as S. 358, 101st Cong., 2d Sess. (1990). See 67 Interpreter Releases, No. 41,
Oct. 29, 1990, at 1209-12. This 11th hour action offers a probable explanation for the
redundancy and anomaly of section 508(a) as it was finally enacted in the Immigration
Act of 1990: the revised deportation grounds were also added in conference, and the
redundancy with respect to the former section 241(a)(11) of the Act in light of this
revision was likely overlooked before the bill's enactment.

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inserted in another criminal provision in the Act, section 241(a)(2)(D).
As originally enacted, that provision read:
Miscellaneous crimes. Any alien who at any time has been convicted (the judgment
on such conviction becoming final) of, or has been so convicted of a conspiracy to
violate-

(i) any offense under chapter 37 (relating to espionage), chapter 105 (relating to
sabotage), or chapter 115 (relating to treason and sedition) of title 18, United States
Code, for which a term of imprisonment of five years or more may be imposed;
(ii) any offense under section 871 or 960 of title 18, United States Code;
(iii) a violation of any provision of the Military Selective Service Act (50 U.S.C.
App. 451 et seq.) or the Trading With the Enemy Act (50 U.S.C. App. 1 et seq.); or
(iv) a violation of section 215 or 278 of this Act, is deportable.
As is clear from the above text, the miscellaneous crimes provision
did not contain the term "attempt" in its list of deportable offenses
when first enacted as part of the 1990 Act. This is similar to section
241(a)(2)(C) at issue here, but in contrast to section 241(aX2)(B)(i)
which, as discussed earlier; specifically includes attempted violations
of laws relating to controlled substances.
In December 1991, however, Congress enacted the Miscellaneous
and Technical Immigration and Naturalization Amendments of 1991?
Section 307(h)(7) of that bill reads in full:
Section 241(a) of the (Immigration and Nationality Act], as amended by section
602(a) of the Immigration Act of 1990, is amended—
(7) in paragraph (2XD), by inserting "or attempt" after "conspiracy" ....
105 Stat. at 1755-56.
The limited legislative history that relates to this amendment
indicates only the change "[p]rovide[d] for deportation for convictions
of attempted crimes." H.R. Rep. No. 383, 102d Cong., 1st Sess. 9
(1991), reprinted in 1991 U.S.C.C.A.N. 1372, 1380. The respondent
claims that, by implication, section 241(a)(2)(D) of the Act did not
encompass attempted crimes before the 1991 Amendments. The
respondent further argues that section 241(a)(2)(C), having been
enacted without the term "attempt" and left unamended by the 1991
Amendments, must exclude such crimes from its purview.
It is a well-established rule of statutory construction that, in cases in
which Congress includes particular language in one section of a statute
but omits that language in another section of the same statute, a
presumption arises that the. disparate inclusion and exclusion was

7 The purpose of the 1991 Amendments was, among other things, to make certain
technical corrections relating to the immigration laws, which were needed in light of the
scope and complexity of the 1990 Act and its swift progress from introduction to
enactment. See H.R. Rep. No. 383, supra, at 2, reprinted in 1991 U.S.C.C.A.N. at 1372.

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intentional and purposeful. See INS v. Cardoza-Fonseca, 480 U.S. 421,
449 (1987), and cases cited therein; Matter of Soleimani, 20 UN Dec.
99 (BIA 1989).
Based on the above, we conclude that the absence of the term
"attempt" in section 241(a)(2)(C) of the Act should be read as
excluding attempted firearms violations from the reach of that
provision. In so finding, we first note that Congress has recently
amended the criminal grounds of deportability that immediately
precede and follow section 241(a)(2)(C) to explicitly include attempt
crimes. The second of these inclusions, moreover, took place after
Congress had reviewed the earlier legislation for needed corrections
and amendments. In addition, the legislative history, although meager,
supports the respondent's claim that the addition of the term
"attempt" to these provisions is not simply surplusage but instead
reflects congressional intent to broaden the previous criminal grounds
of deportability. By negative implication, it follows that the omission
of this term from section 241(a)(2)(C) is likewise due operative effect.
INS v. Cardoza-Fonseca, supra.
As a final note, although we find the foregoing to be convincing, we
reference in closing the canon of statutory interpretation uniquely
applicable to the immigration laws, which requires any doubts in
construing those statutes to be resolved in favor of the alien due to the
potentially drastic consequences of deportation. Id. at 449; Costello v.
INS, 376 U.S. 120, 128 (1964); Barber v. Gonzalez, 347 U.S. 637, 642-
43 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6 (1948); De/gadi//o v.
Carmichael, 332 U.S. 388 (1947); Pacheco v. INS, 546 F.2d 448, 449
(1st Cir. 1976); Matter of Tiwari, 19 I&N Dec. 875, 881 (BIA 1989);
see also Bell v. United States, 349 U.S. 81, 83 (1955) (requiring
ambiguous criminal statutes to be construed in favor of the defendant);
United States v. One Heckler-Koch Rifle, 629 F.2d 1250 (7th Cir. 1980)
(same rule applies in civil forfeiture proceedings in rern). Any
remaining questions regarding the intent of Congress in omitting the
term "attempt" in section 241(a)(2)(C) of the Act will therefore be
decided in favor of the respondent in this case.
Consequently, we hold that ' the respondent is not deportable as
charged under section 241(a)(2)(C) of the Act on the basis of his
conviction for attempted possession of a firearm under sections 110
and 265.02(3) and (4) of the New York Penal Law. These deportation
proceedings will accordingly be terminated.
ORDER: The appeal is sustained and the immigration judge's
determination of the respondent's deportability is reversed.
FURTHER ORDER: The order of deportation is set aside
and the deportation proceedings are terminated.

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