110 respondet's contention that he is not subject to the amendments made by the Illegal Immiation Rerm and Immigrant Responsibility Act of 1996 (IIRI") to the deition of aggravated lony" because he had contact with the rmer Immigration and Naturalization Serice (INS) in 1991 while he was in prison.
Respondents Brief at 8-9. Relying on e Sixth Circuits decision in
Saq Holde supa,
e respondent arges that, inasmuch as he was questioned about his potential depoability by the INS while he was in prison in 1991, the postIIRIA denition does not apply to him because, he claims, questioning im constitutes some action" taken by the INS bere IIAs enactment.
at 421 (interpreting section 32(c) of IIRIA, which states at the legislations amendment of the aggravated lony denition shall apply to actions ten on or er e date of enactment , regdless of when the conviction occurred"). In
the Sixh Circuit held that the tem actions taken" under section 31(c) of IIIA derives om the point at which the removal action begins, r pposes of determining whether the pre-or postIIRIRA denition of aggavated lony applies d, in accordance with two other circuits, it ud that removal proceedings begin when an alien is served wth the Notice to Appear.
at 42. Therere, mere questioning by an INS agent prior to the actual sevice of the Notice to Apper (which did not occur in this case until June 17, 201) does not constitute the begiing point of a removal action against an alen
he respondent does not dispute that if crent law may properly be applied (as we hold that it may), his oense is a categorical aggravated lony under section 101(a)(43)(F) of the Act, 8 USC § 1101(a)(43)(), as und by the Immiation udge (IJ at 7-8). The respondent next arges that he is eligible r a waiver under rmer section 21(c) of the Act despite the ct that he was convicted aer a uy tial rather than as the result of a plea agreement (I. at 8).
Respondents Brief at 9-10
this regard, we note,
did the Immigation udge, that the United States Cor of Appeals r the Sixth Circuit, where this case rises, has specically concluded that a waiver under mer section 212(c) of the Act is not available to those whose convictions were obtained er trial by a ury (I at 8)
See Kellemann Holde
592 F3d 700, 705-07 (6th Cir 2010) In so holding, the Sixth Circuit and some other circuit cours, emphasiing the United States Supreme Cors cus on the contractual nature of plea agreements" in
533 US. 289 (2001), have determined that application of the amendments eected by the Antiterorism and Eective Death Penalty Act of 1996 and by IIIRA has no impemissible retroactive eect on individuals who were convicted of depoable oenses aer ial In tu, such deternations have been based on the theory that individuals who were convicted aer tial cnot demonstate detrimental reliance on the potential availability of section 12(c) relief
See Kellemann Holde supa; see also Feguson
563 3d 1254, 71 (11th Cir. 2009). decisions declined to der to
Matte of Lettman supa
and instead held that the crent aggravated lony" removability provision does not apply to preAD
convictions However, the present case arises in the Sixth Circuit, which has not addressed the validity of the Bords decision in
Matte of Lettman
whch we consequently re bound to apply. We also note that decisions issued by two other cours of appeals
Matte of Lettman See Lettman Reno
207 .3d 1368 (11th Ci. 2000);
194 F.3d 539 (4t Cir. 1999) 2
Cite as: J-G-, AXXX XXX 110 (BIA Apr. 9, 2014)