and, thus, an aggravated felony within the meaning of (a)(3). However, Gomez argues that the language of section 501(b) mandates that the addition of violent crimes to the definition of aggravated felony applies only to violent crimes committed on or after November 29, 1990. The government argues, to the contrary, that Congress intended the word "offenses" in section 501(b) to refer to the offense of illegal reentry, not the offense of the previous felony. Under this interpretation, Gomez' previous felony would qualify as an aggravated felony, because he reentered the U.S. illegally aftei November 29, 1990. Thus, this court must determine whether Congress intended the word "offenses" in section 501(b) of the Act to refer to the previous felony or the currently charged offense of illegal reentry.
Under careful analysis of the amending language of section 501 and the structure of 8 U.S.C. § 1101, which it amends, it is cl ear that Congress intended the word "offenses" in the effective date provision of section 501(b) to mean the felonies set forth in section 501 itself. Section 1101 is the general definition section for all of Chapter 12 of Title 8 ("Immigration and Nationality"). The term "aggravated felony," defined in 1101(a)(43), is used in numerous substantive sections throughout Chapter 12. These include, inter alia, section 1105a (governing judicial review of orders of deportation and exclusion), section 1158 (asylum procedures), and section 1182 (regarding excludable aliens). Many of these sections regulate admission or deportation from the United States as part of the civil immigration system. Section 1326, under which Gomez is charged, is only one of many substantive sections to use the term "aggravated felony", and one of the few that actually involves offenses with criminal penalties.
There are several reasons why interpreting the word "offenses" in section 501(b) of the 1990 Act as referring to the actual offense of illegal reentry under section 1326 does not make sense. First, section 501 amends section 1101(a)(43), not section 1326; in fact, section 1326 is not referenced anywhere in 501(b) of the 1990 Act. If Congress had intended the result the government urges, it could have amended section 1326 to add effective date language tailored specifically to it.
Congress did just that when it drafted the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4469 et seq. (1988), which created the definition of aggravated felony and placed it in Title 8 for the first time. Section 7342 of the Anti-Drug Abuse Act, which amended section 1101(a) to add subparagraph (43) containing the term "aggravated felony," had no effective date language. The effective dates were included instead in the specific substantive sections amended to use the term "aggravated felony." See id. at §§ 7343, 7344(a), 7345, 7346(a), 7347, 7349.
In the 1990 Act, however, Congress placed the effective date language in the definition itself. Therefore, the most straightforward reading of section 501(b) is that Congress intended the effective date to apply to the offenses contained within the definition section itself, rather than to the substantive offense section, which was not explicitly referenced. This conclusion is bolstered by the language of 501(b). The first clause of 501(b) states "the amendments . . . shall apply to offenses committed on or after the date of the enactment . . . ." Read in isolation, these words might be capable of the meaning the government urges. However, the second clause does not use the word "offenses." It merely states that two of the amendments "shall be effective as if included in . . . the Anti-Drug Abuse Act of 1988." When the two clauses are read together, the sentence is less amenable to the meaning the government urges.
Further, section 1101(a)(43) is a general definition, relevant to numerous substantive sections in Chapter 12. If the word "offenses" in section 501(b) of the 1990 Act were interpreted to refer to the offense of illegal reentry defined by section 1326, the first clause of section 501(b) would have no relevance to the many other sections using the term aggravated felony, and would leave the effective date of the amendments in subparagraphs (3) and (4) of section 501(a) unspecified for all purposes except that of illegal reentry.
This court's interpretation of section 501(b) is consistent with the amendment in 1991 of another section of Title 8 that uses the term "aggravated felony." 8 U.S.C. § 1158 (governing applications and grants of asylum). In the 1990 Act, Congress amended section 1158 to provide that an alien who has been convicted of an aggravated felony may not apply for or be granted asylum. Pub. L. No. 101-649, § 515 (1990). This amendment added the term aggravated felony to section 1158 for the first time. Subsequently, in the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 ("Technical Corrections Act"), Pub. L. No. 102-232, § 306(a)(13) (1991), Congress amended section 515(b)(1) and (2) of the 1990 Act to provide that the restrictions on aliens convicted of aggravated felonies "shall apply to convictions entered before, on, or after the date of the enactment of this Act and to applications for asylum made on or after the date of the enactment of this Act." By this amendment, it appears that Congress altered the effective date that otherwise would apply in order to include predicate felonies without regard to date of conviction. Presumably, Congress would not have found it necessary to do so if section 1101(a)(43), as amended in 1990, already included prior felonies regardless of when they were committed.
It should be noted that the 1990 Act did amend section 1326. See Pub. L. No. 101-648, § 543(b). However, it did so only with respect to a criminal fine provision. Subparagraph (e) of section 543 also included an effective date for that amendment. In the 1991 Technical Corrections Act additional changes were made to the 1990 amendment. See Pub. L. No. 102-232, § 306(e)(3). However, Congress never added a specific effective date for the aggravated felony language applicable to that section. Certainly the amendments of the 1990 Act and the 1991 Technical Corrections Act demonstrate that Congress knows how to draft explicit and differentiated effective dates; yet it did not do so for section 1326 with respect to the term aggravated felony.
Finally, the court notes that the Immigration and Naturalization Service ("INS") agrees with this court's interpretation of section 501(b). On July 31, 1991, the INS issued the following Operations Instruction:
Applicability of the Term "Aggravated Pelony" to Sections of the [Immigration and Nationality] Act. Unless otherwise limited in its application under a specific section of the Act, the term "aggravated felony", as defined in section 101(a)(43) of the Act, applies to convictions entered before, on or after November 18, 1988 (the date of enactment of the AntiDrug Abuse Act of 1988). The only exceptions are the crimes of money laundering, non-political crimes of violence resulting in a sentence of at least five years imprisonment and foreign convictions, which must be committed on or after November 29, 1990 (the date of enactment of the Immigration Act of 1990).
INS Oper. Instr. 101.3 (Imm. Law Service Supp. Dec. 1994). The INS's conclusion that crimes of violence are aggravated felonies only if committed on or after November 29, 1990 reflects the view that the effective date language in section 501(b) applies to the offenses listed in 501 itself.
The Ninth Circuit has held that it is not clear error to interpret the word "offense" in section 501(b) to refer to the offense of illegal reentry under section 1326. U.S.A. v. Ullyses-Salazar, 28 F.3d 932, 938-39 (9th Cir. 1994), petition for cert. filed U.S.L.W. (Dec. 15, 1994) (No. 94-); accord U.S.A. v. Garcia-Rico, 46 F.3d 8, 1995 U.S. App. LEXIS 2461 (5th Cir., February 10, 1995).
However, in Ullyses-Salazar this issue was raised for the first time on appeal and the Circuit considered the question on a limited record, under a deferential standard of review. The Court of Appeals did not parse out section 501 nor have the benefit of the INS interpretation.
Further, both the Sixth and Seventh Circuit Courts of Appeal appear to have reached a contrary conclusion. While not analyzing the issue at great length, the Sixth Circuit has stated in dicta: "The definition of aggravated felony was amended in 1990, at which time several new categories of crime were added. The 1990 amendment provided that these crimes were to be considered aggravated felonies only if committed on or after the date of enactment." Campos v. I.N.S., 16 F.3d 118, 121 (6th Cir. 1994). The Seventh Circuit reached the same conclusion:
The effective date of the 1990 . . . amendment provides that the amended definition shall apply only to "offenses committed on or after the date of the enactment of this Act . . . ." The government concedes that, as a result of this legislative directive with respect to the effective date, a crime can be classified as an "aggravated felony" only if committed on or after November 29, 1990.
U.S.A. v. Munoz-Cerna, 47 F.3d 207, 1995 U.S. App. LEXIS 2277, *7-*8 (February 7, 1995) (dicta).
Under the closer scrutiny occasioned by Gomez' motion, this court holds that the proper interpretation of section 501(b) is that the term "offenses" refers to the offenses enumerated in 501 (a) and not the offense proscribed by section 1326.
For the foregoing reasons, Gomez' motion to dismiss the indictment on the grounds that his prior conviction is not an aggravated felony within the meaning of 8 U.S.C. §§ 1326 & 1101 (a)(43) is hereby GRANTED. The indictment is DISMISSED.
IT IS SO ORDERED.
Dated: FEB 23 1995
MARILYN HALL PATEL
United States District Judge