The decision was issued in the case of a former Vietnamese refugee who, shortly after being admitted to the United States in 1981, adjusted to lawful permanent residence status.  Less than five years later, he committed second degree robbery, for which he was convicted and sentenced in 1987 to serve six years in prison.  In 1993, upon his return from a four-month visit to China, the Immigration and Naturalization Service initiated exclusion proceedings against him.  Although the immigration judge terminated those proceedings in 1995, the INS subsequently charged the respondent with deportability under INA section 241(a)(2)(A)(i) for having committed a crime involving moral turpitude within five years of entry for which he received a sentence of at least one year or more.  During his deportation proceedings, the INS also lodged an aggravated felony charge against the respondent under INA section 241(a)(2)(A)(iii).

After the IJ found him deportable on both grounds charged and denied him section 212(c) relief, the respondent appealed.  In dismissing the appeal, the BIA discussed in detail each issue the respondent raised, reserving its lengthiest discussion for his contention that the aggravated felony charge should not be applied to him.  The respondent had argued that his offense does not qualify as an aggravated felony because his conviction occurred prior to the IIRIRA’s enactment.  Furthermore, he asserted, even if the current definition of aggravated felony applies to him, he is not deportable because, based on section 7344(b) of the Anti-Drug Abuse Act of 1988 (ADAA), deportability under INA section 241(a)(2)(A)(iii) applies only to convictions occurring on or after the ADAA’s enactment.

In rejecting his argument, the BIA both affirmed its recent decision in Matter of Lettman and distinguished that case from the respondent’s.  In Lettman, the BIA held that section 602 of the Immigration Act of 1990 eliminated the date restriction contained in ADAA section 7344(b).  However, while it noted that the respondent in Lettman had been convicted of third degree murder—an offense clearly defined as an aggravated felony since the term was first used in the ADAA—robbery did not meet the definition until the term was expanded under the Immigration Act of 1990.  But that statute and subsequent laws enacted prior to the IIRIRA expanding the aggravated felony definition contained provisions making the expansions prospectively applicable to crimes committed after their respective enactment dates.  Accordingly, under the Immigration Act of 1990, the respondent’s conviction would not have qualified as an aggravated felony.

Nonetheless, the BIA held, IIRIRA section 321(b) rescinded the various statutes’ divergent dates of prospective applicability, triggering the aggravated felony ground of deportation for all convictions meeting the definition regardless of the dates on which the convictions were entered.  The BIA also rejected the respondent’s argument that the language in section 321(c) making the amendments contained in section 321(b) applicable only to "actions taken" after the IIRIRA’s enactment made the statute’s abolishment of earlier effective dates only a "purport[ed]" one.  It noted that the term "actions taken" has been interpreted by both the Ninth Circuit and the BIA to include the BIA’s consideration of an appeal.  Based on that interpretation and on regulations implemented after the IIRIRA’s enactment clarifying that the aggravated felony definition contained in INA section 101(a)(43) applies "to any proceeding, application, custody determination, or adjudication pending on or after Sept. 30, 1996," the BIA affirmed the respondent’s deportability.

In rejecting the respondent’s argument that even if he is deportable as an aggravated felon, he remains eligible for 212(c) relief, the BIA declined to depart from the AG’s holding in Matter of Soriano.  The respondent had asserted that recent Supreme Court decisions on retroactivity effectively overturned Soriano, obliging the BIA to find that the bar on 212(c) relief did not apply to him.  In declining to do so, the BIA noted that neither of the Supreme Court decisions cited by the respondent directly overturned Soriano, nor did they directly address the statutory provisions at issue in the case.  The BIA also found that because the present case arose within the Ninth Circuit—which, despite other circuit courts’ recent rulings, thus far has not issued a decision overturning Soriano—it remains bound by the AG’s decision.  Accordingly, it held that as an individual removable on an aggravated felony charge, the respondent is statutorily ineligible for 212(c) relief.