stronger than the majority is willing to concede.

The majority does not find Matter of Barrett, supra, especially significant because it concludes that section 101(a)(43)(B) (involving drug crimes) is "not formulated in the same manner as that in section 101(a)(43)(E)" (involving firearms offenses). Matter of Vasquez-Muniz, supra, at 1423. However, there are important similarities, as both sections are governed by the broad language appearing in the penultimate sentence of section 101(a)(43) and both concern whether the term "aggravated felony" encompasses a state crime through reference to a federally defined crime. Thus, many of the factors we took into account in Matter of Barrett, supra, to resolve the latter question with respect to section 101(a)(43)(B) are equally instructive here. These factors included the following:

(i) the broad language of the new provision ("any drug trafficking crime");

(ii) the fact that former section 241(a)(4) of the Act, which was amended to include the aggravated felony ground of deportation, had always been interpreted to include state offenses;

(iii) the fact that "the Act generally does not attach different treatment to state and federal drug offenses with respect to excludability, deportability, or the negative effect of a drug conviction on various forms of relief from exclusion or deportation"; and

(iv) the fact that a contrary view "would discriminate between state and federal drug crimes... in a way previously unknown in the Act."

Matter of Barrett, supra, at 175-76. We also found that it was "unreasonable to assume that Congress, in choosing the definition of 'drug trafficking crime' at 18 U.S.C. § 924(c)(2), sought to differentiate between aliens convicted of similar drug-related offenses on the basis of whether the conviction was accomplished under state or federal law." Id. at 175.

In the instant case, we are again faced with broad language suggesting that we should make no distinction between federal and state crimes in

2We also stated as follows:

Inclusion of state crimes in the definition of “drug trafficking crime" is also consistent with the Immigration and Nationality Act read as a whole. Congress chose to append the new ground of deportability relating to aggravated felons to section 241(a)(4) of the Act which has always been read to include state crimes. Absent a clear intent to depart from the prior undisputed inclusion of state crimes under section 241(a)(4), we find no reason to believe that Congress, in adding the aggravated felony provision to this section, meant to exclude state drug-related crimes when it chose the definition of "drug trafficking crime" at 18 U.S.C. § 924(c)(2).

Matter of Barrett, supra, at 175-76.

determining whether a given offense is an aggravated felony. Therefore, I would find, as we did in Barrett, that it is "unreasonable to assume" that Congress sought to make a distinction between federal and state crimes purely on jurisdictional grounds, without specifically so stating. I would find that when Congress plainly states that certain crimes, described in specified legislation, are to be treated as aggravated felonies, whether in violation of federal or state or foreign law, and describes a statute setting forth the substantive elements of a crime, such as possession of a firearm by a felon, Congress intends for us to disregard any purely jurisdictional elements of the crime when determining whether it is an aggravated felony. Such is the case here.

III. CONCLUSION

My colleagues in the majority seem to find that the meaning of the aggravated felony provision of the Act, as applied to this matter, can best be discerned by interpreting section 101(a)(43) (E) of the Act through a dictionary definition of the word "describe" and an inductive survey of the use of this term outside the Act. I find this inductive inquiry neither necessary nor conclusive, because the phrase "described in" at section 101(a)(43)(E) is governed by broader language that appears elsewhere in the same section of law. This governing language indicates that any crime described in any subsection of section 101(a)(43) is an aggravated felony, whether it violates federal, state, or foreign law.

This governing language, the context in which it occurs, the design of the Act, and the history of our treatment of the federal/state distinction in the aggravated felony context all indicate that a violation of state or foreign law that has the same elements as a referenced federal law-except for the jurisdictional element that makes such laws federal—should be regarded as an aggravated felony.

I would therefore find that the respondent, a felon convicted of possession of a firearm, need not violate 18 U.S.C. § 922(g)(1) in order to run afoul of the aggravated felony provision. Although the state offense of which he was convicted does not contain the federal jurisdictional element of § 922(g)(1), it nonetheless satisfies the definition of an aggravated felony under section 101(a)(43)(E) of the Act. Consequently, I would find the respondent ineligible for relief from removal.

UNITED STATES STATUTES - Continued

UNITED STATES STATUTES - Continued