In determining whether a conviction constitutes a "particularly serious crime" ("PSC") sufficient to disqualify a noncitizen from asylum or withholding of removal, there are two basic tests. First, if the offense is considered an aggravated felony, the noncitizen is disqualified for asylum, and is disqualified from withholding if the sentence imposed is for five years or more. INA 208(b)(2)(A); 241(b)(3)(B).

Even if a conviction is found not to be a particularly serious crime under this test, the conviction may still be found by the IJ to be a PSC by looking at the factors described in Matter of Frentescu, 20 I. & N. Dec. 244, 247 (BIA 1982). These factors include: 1) nature of the conviction; 2) circumstances and underlying facts of the conviction; 3) type of sentence imposed; and "most importantly" 4) "whether the type and circumstances of the crime indicate that the alien will be a danger to the community." Id. This test does not involve "an examination of the respondents family or community ties, the risk of persecution in the aliens native country" or going "behind the record of conviction to redetermine the aliens innocence or guilt." Matter of L-S-, 22 I&N Dec. 645, 651 (BIA 1999). A misdemeanor normally should not be considered a PSC. See Matter of Juarez, Int. Dec. 3066 (BIA 1988) (misdemeanor assault with deadly weapon).

The BIA has noted that "[c]rimes against the person are more likely to be categorized as particularly serious crimes." Id. The Attorney General, in Matter of Jean, 23 I. & N. Dec. 373, 385 (A.G. 2002), has additionally held that, even where the conviction is not considered an aggravated felony, "except . . . in extraordinary circumstances, such as those involving national security or foreign policy considerations, or in cases in which the alien clearly demonstrates that the denial of relief would result in exceptional and extremely unusual hardship" any "violent or dangerous" crimes will be considered PSC. Matter of Jean involved a second-degree manslaughter conviction arising from an incident where the asylum applicant had shaken and otherwise injured a baby in an attempt to make the baby stop crying.

There are relatively few cases where the BIA has actually determined whether an offense is a PSC:

"The BIA has found the following to be particularly serious crimes: burglary of a dwelling which included aggravating circumstances, Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986); shooting with intent to kill, Nguyen v. INS, 991 F.2d 621, 626 (10th Cir. 1993); and robbery, Matter of Carballe, 19 I&N Dec. 357 (BIA 1986); Cepero v. BIA, 882 F.Supp. 1575, 1580 (D. Kan. 1995). The courts have held that possession of cocaine for sale and possession of heroin with intent to distribute are particularly serious crimes. Crespo-Gomez v. Richard, 780 F.2d 932 (11th Cir. 1986) [Cocaine]; Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir. 1986) [Heroin], but simple possession of cocaine is not, Matter of Toboso-Alfonso, 20 I&N Dec. 819 (A.G. 1994). The BIA takes the view that any drug trafficking crime as defined under federal law, no matter how small, is a particularly serious crime. Matter of U-M-, 20 I&N Dec. 327 (BIA 1991). But see Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990) [Rejecting view that all drug crimes are per se "particularly serious" and requiring that BIA view them on a case-by-case basis]. Handbook 152-156."

Kurzbans Immigration Law Sourcebook, 357 (Ninth Ed. 2004).