Particularly Serious Crimes in the Withholding of Removal Context

 

Introduction: Mandatory Denial of Withholding of Removal for a Particularly Serious Crime

Withholding of RemovalSection 241(b)(3) of the Immigration and Nationality Act (INA) lists several mandatory denial grounds for withholding of removal. Among these is section 241(b)(3)(ii) of the Immigration and Nationality Act (INA), which encompasses a conviction for a particularly serious crime. In this article, we will examine administrative and judicial precedent surrounding the particularly serious crime mandatory denial ground for withholding of removal. To learn about the other mandatory denial grounds for withholding of removal, please see our full article [see article]. To learn about the related particularly serious crime bar to eligibility for asylum, please see our material on that subject [see section].

Additionally, please see our selection of articles on issues relating to withholding of removal:

  • Seeking Withholding of Removal [see article]
  • Eligibility for Statutory Withholding of Removal [see article]
  • Eligibility for Withholding of Removal and Deferral Removal under the Convention Against Torture [see article]
  • Issues for Aliens who have been Granted Deferral of Removal [see article]

Applicable Statute

Section 241(b)(3)(B)(ii) of the INA states that if the Attorney General determines that an alien was convicted by final judgment of a particularly serious crime and that the alien is a danger to the community of the United States, the alien will be ineligible for withholding of removal. The statute states that any conviction for an immigration aggravated felony [see article] for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years is categorically a particularly serious crime.

Rule for Withholding of Deportation Cases

Applications adjudicated in proceedings commenced before April 1, 1997 in which final action had not been taken before April 24, 1996 (withholding of deportation cases) have slightly different rules for the mandatory denial ground for withholding of removal for a particularly serious crime conviction. 8 C.F.R. 208.16(d)(3) explains that the old section 243(h)(2) and (3) will apply to such cases. These statutes stated that an alien who was convicted of an aggravated felony was presumed to have committed a particularly serious crime. However, section 243(h)(3) required that the denial grounds be interpreted in such a manner as to be in compliance with the 1967 United Nations Protocol Relating to the Status of Refugees. 8 C.F.R. 208.16(d)(3) explains that if an alien had been convicted of an aggravated felony and sentenced to an aggregate term of imprisonment of at least 5 years, he or she would be considered to have been convicted of a particularly serious crime. However, if the alien was sentenced to an aggregate term of imprisonment of less than 5 years, the alien would be subject to a rebuttable presumption of having committed a particularly serious crime. The regulation reflects Board of Immigration Appeals (BIA) precedent in the Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996) [PDF version].

Analyzing Whether Crime is a “Particularly Serious Crime”

In the Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982) [PDF version], the Board set forth four criteria for determining whether a conviction is for a “particularly serious crime”:

  1. The nature of the conviction;
  2. The circumstances and underlying facts of the conviction;
  3. The type of sentence imposed; and
  4. Whether the type and circumstances of the crime indicate that the alien will be a danger to the community.

However, in the Matter of Carballe, 19 I&N Dec. 357 (BIA 1986) [PDF version], the Board held that the focus in determining whether a crime is a “particularly serious crime” is on the serious nature of the crime and not on the likelihood of future serious misconduct. Accordingly, the Board held that the statute does not require two separate and distinct findings as to the seriousness of the crime and whether the alien presents a danger to the community. The Board held in the Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996) [PDF version] that an alien who is convicted of a particularly serious crime shall be considered a danger to the community. In the Matter of R-A-M-, 25 I&N Dec. 657 (BIA 2012) [PDF version], the Board held that possession of child pornography in a specific case was a particularly serious crime while discounting the length of sentence and the possibility of future misconduct or rehabilitation.

In the Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007) [PDF version], the Board held that a particularly serious crime under section 241(b)(3)(B)(ii) need not be for an aggravated felony. The Board held that when the elements of an offense are found to “potentially bring it within the ambit of a particularly serious crime,” all reliable information may be considered in determining whether the offense is a particularly serious crime. Information outside of the record of conviction may be considered. Before the Matter of N-A-M- was issued, the Third Circuit held in Alaka v. Attorney Gen. of the U.S., 456 F.3d 88 (3d Cir. 2006) [PDF version] that an offense must be an aggravated felony to be a particularly serious crime in the withholding context. Notwithstanding Alaka, the Board applied the Matter of N-A-M- in cases arising from the Third Circuit in the Matter of M-H-, 26 I&N Dec. 46 (BIA 2012) [PDF version].

In the Matter of S-S-, 22 I&N Dec. 458 (BIA 1999) [PDF version], the Board held that an aggravated felony conviction could be found to not be a particularly serious crime so long as a prison sentence of at least 5 years was not imposed.

In the Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014) [PDF version], the Board held that an alien's mental health as a factor in a criminal act may not be weighed in assessing whether the alien was convicted of a particularly serious crime in the immigration context.

In the Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985) [PDF version], the Board held that the evidence of persecution introduced by the alien cannot be considered in determining the whether a conviction was for a particularly serious crime in the withholding of deportation (now removal) context. The Supreme Court held the same for all of the mandatory denial grounds for withholding of removal in section 241(b)(3)(B) of the INA in INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) [PDF version].

Determining Length of Imprisonment

In the Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) [PDF version], the Board held that when an alien is convicted of multiple aggravated felonies and is given concurrent sentences, the term of imprisonment must be measured by the length of the longest concurrent sentence.

In Issaq v. Holder, 617 F.3d 962 (7th Cir. 2010) [PDF version], the Seventh Circuit held that all periods of imprisonment associated with a conviction are counted toward determining if the alien was sentenced to an aggregate term of at least 5 years' imprisonment. In Cole v. Att'y Gen. of the U.S., 712 F.3d 517 (11th Cir. 2013) [PDF version], the Eleventh Circuit held that an indeterminate sentence of at least 5 years for an aggravated felony is categorically a particularly serious crime. In so doing, it followed BIA precedent from the Matter of S-S-, 21 I&N Dec. 900 [PDF version], which held that indeterminate sentences should be measured by their maximum possible term for immigration purposes. However, it is worth noting that in Shaya v. Holder, 586 F.3d 401 (6th Cir. 2009) [PDF version], the Sixth Circuit relied upon state sentencing laws for measuring indeterminate sentences rather than the BIA precedent in the Matter of S-S-.

Drug Trafficking Convictions

In the Matter of U-M-, 20 I&N Dec. 327 (BIA 1991) [PDF version], the Board held that any drug trafficking crime as defined by federal law is particularly serious.

In the Matter of Y-L-, A-G-, and R-S-R, 23 I&N Dec. 270 (AG 2002) [PDF version], the Attorney General held that any aggravated felony involving trafficking in controlled substances [see article] is presumptively a particularly serious crime. In the Matter of Y-L-, the Attorney General held that this bar may only be departed from under both extraordinary and compelling circumstances. The Attorney General defined “extraordinary and compelling circumstances” as, at a minimum, including all of the following:

  1. A very small quantity of controlled substance involved;
  2. A very modest amount of money paid for drugs in the offending transaction;
  3. Merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy;
  4. The absence of any threat of violence, implicit or otherwise, associated with the offense;
  5. The absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and
  6. The absence of any adverse or harmful effect of the activity or transaction on juveniles.

In Miguel-Miguel v. Gonzalez, 500 F.3d 941 (9th Cir. 2007) [PDF version], the Ninth Circuit held that the presumption in Y-L- does not apply retroactively. Multiple circuits have found that a decision that a drug trafficking conviction was a particularly serious crime may be reversed if the immigration judge failed to properly consider evidence to rebut the presumption that the conviction was for a particularly serious crime in accordance with the Matter of Y-L-: see e.g., Lavira v. Att'y Gen. of the U.S., 478 F.3d 158 (3d Cir. 2007) [PDF version]; Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008) [PDF version].

Examples of Convictions Found to be Particularly Serious Crimes

In the Matter of R-A-M-, 25 I&N Dec. 657 (BIA 2012), the Board found that possession of child pornography is a particularly serious crime where the alien had downloaded “numerous images and videos.” However, the Board did not hold that a conviction for possession of child pornography is categorically a particularly serious crime.

In the Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), the Board held that a Colorado conviction for menacing (by representing that he was armed with a deadly weapon and placing another person in fear of imminent serious bodily injury) was a particularly serious crime.

In the Matter of Carballe, 19 I&N Dec. 357 (BIA 1986), the Board held that a conviction for attempted armed robbery was a particularly serious crime.

In the Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986) [PDF version], the Board held that a New York conviction for residential burglary was a particularly serious crime because it included one or more aggravating circumstances including physical injury or potentially life-threatening acts.

In Anaya-Ortiz v. Mukasey, 594 F.3d 673 (9th Cir. 2010) [PDF version], the Ninth Circuit held that a conviction for a DUI where the alien had crashed into a dwelling and injured a person in the home was a particularly serious crime.

In Kaplun v. Att'y Gen. of the U.S., 602 F.3d 260 (3d Cir. 2010) [PDF version], the Third Circuit held that a conviction for securities fraud was a particularly serious crime where the securities fraud involved over $900,000.

Burden of Proof

Under 8 C.F.R. 208.16(d)(2), when the evidence indicates that the alien was convicted by final judgment of convicting a particularly serious crime, the burden lies with the alien to prove by a preponderance of the evidence that he or she was not convicted of a particularly serious crime.

Aliens may seek judicial review after being administratively found to have committed a particularly serious crime.

Conclusion: Mandatory Denial of Withholding of Removal for a Particularly Serious Crime

If an alien is found to have been convicted of a particularly serious crime, he or she will be ineligible for withholding of removal. Provided that the alien was not convicted of an immigration aggravated felony for which an aggregate sentence of 5 years or more was imposed, the determination of whether a conviction is for a particularly serious crime is made by weighing the nature of the conviction, the underlying facts of the conviction, and the sentence that was imposed upon the alien. Accordingly, the alien will have the opportunity to prove by a preponderance of the evidence that his or her conviction was not for a particularly serious crime. An alien who is in removal proceedings should always consult with an experienced immigration attorney. In the particularly serious crime context, an experienced immigration attorney will be able to evaluate an alien's conviction and determine if there exists a compelling case that his or her conviction was not for a particularly serious crime based on the statute, regulations, and relevant precedent.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 666-70, 672-73, Print. Treatises & Primers.