Aggravated Felonies

 

One or more aggravated felony conviction(s), for which an aggregate of five years imprisonment was imposed, will bar application for withholding of removal.  Other aggravated felonies may also bar withholding if they are found to be “particularly serious crimes.”

 

Withholding of removal under the INA (not to be confused with withholding of removal under the Convention Against Torture[622]) is a protection against deportation for persons who can show that it is more likely than not that they would be persecuted in the home country based on race, religion, social group, etc., but who have some negative equity that prevents them from being granted asylum.[623]  Withholding is a form of relief that offers less protection than political asylum (it does not lead to permanent resident status) and has a higher standard of proof.  Still, withholding of removal is a crucial benefit: it should serve to obtain the person’s release from DHS detention, and provide employment authorization, permission to remain in the U.S., and some procedural protections against reversal of the withholding decision.

 

            The category of conviction that most often affects asylum and withholding applications is the “particularly serious crime.”[624]  However, the definition of “particularly serious crime” in the context of withholding of removal under the Act is somewhat different from the definition for purposes of asylum.[625]

 

            In the context of withholding, an aggravated felony conviction is not necessarily a “particularly serious crime” unless the aggregate sentence imposed equals five years or more.[626]  This bar is retroactive.[627]  An aggravated felony offense where the noncitizen was sentenced to less than five years imprisonment, except as described below, should be examined by the immigration authorities on an individualized basis to determine whether the offense is “particularly serious.”

 

            In Matter of YL,[628] the Attorney General overruled prior law[629] that an aggravated felony drug offense with a sentence of less than five years was not presumptively a “particularly serious crime” so as to deny withholding.  Instead, the Attorney General found that aggravated felonies involving narcotics trafficking are presumptively particularly serious crimes, and that only under the most extenuating circumstances, that are both extraordinary and compelling, would a different finding be warranted.  While noting that the “devastating effects” of drug trafficking on society could warrant a per se determination that such crimes should be considered “particularly serious,” the Attorney General declined to impose a categorical restriction.  Instead, he set forth the following factors that must exist to justify an unusual circumstances finding:

 

(1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or 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.[630]

 

At least one court has held that Matter of YL is not inconsistent with prior law on particularly serious crimes that requires the court engage in an individualized determination of whether the offense is a “particularly serious crime.”[631]  Where the aggravated felony does not involve drug trafficking, the prior law requiring an individualized determination should still stand.  No judicial review exists to determine whether the BIA properly found an offense to be a “particularly serious crime.”[632]  The “particularly serious crime” bar applies to asylum applications filed after November 29, 1990.[633]  At least one court has held that the determination of whether an offense is a particularly serious crime is a matter of discretion, and therefore barred from judicial review.[634]

 

As with asylum, withholding under the INA may also be denied on other criminal grounds,[635] including upon a finding that there are serious reasons to believe that the noncitizen has committed serious nonpolitical offenses outside the United States prior to arrival in the United States,[636] or that “serious reasons” exist for believing the noncitizen is a danger to the security of the United States.[637]  Even terrorist activity may not be cause to deny withholding of removal.[638]

[622] See § 2.8, supra.

[623] See INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).

[624] In Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982), modified, Matter of C, 20 I. & N. Dec. 529 (BIA 1992), the BIA stated that “[i]n judging the seriousness of a crime, we look to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.”

[625] See § 2.31, supra.

[626] INA § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B).  See also Steinhouse v. Ashcroft, 247 F.Supp.2d 201 (D. Conn. Feb. 26, 2003) (granting habeas corpus on ground BIA erred in finding an aggravated felony to be a “particularly serious crime”).

[627] Feroz v. INS, 22 F.3d 225 (9th Cir. Apr. 19, 1994) (INA § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B), stating final judgment of particularly serious crime established respondent constitutes danger to community of United States and is ineligible for withholding of deportation, retroactively applied to bar citizen from seeking withholding of deportation, based on single determination that citizen had been convicted of particularly serious crime).

[628] Matter of YL, 23 I. & N. Dec. 270 (A.G. 2002).

[629] See Matter of SS, 22 I. & N. Dec. 458 (BIA 1999), modifying Matter of QTMT, 21 I. & N. Dec. 639 (BIA 1996). 

[630] Matter of YL, et. al., 23 I. & N. Dec. 270 (A.G. 2002).

[631] Ford v. BICE, 294 F.Supp.3d 655 (M.D. Pa. Dec. 5, 2003) (Matter of YL, creating presumption that aggravated felony drug offense is a “particularly serious crime,” is not inconsistent with Chong v. INS, 264 F.3d 378 (3d Cir. 2001), requiring individual determination of whether offense is “particularly serious crime”).

[632] INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii).  See Singh v. Ashcroft, 351 F.3d 435 (9th Cir. Dec. 5, 2003) (no federal jurisdiction exists to review BIA discretionary determination that aggravated felony offense was a ‘particularly serious crime’ for withholding of removal).

[633] Immigration Act of 1990 § 515(a)(1), adding INA § 208(d), 8 U.S.C. § 1158(d).  Effective date provided at Immigration Act of 1990 § 515(b)(1). For a discussion of what constitutes a particularly serious crime, see Yousefi v. U.S. Immigration and Naturalization Service, 260 F.3d 318 (4th Cir. 2001); Chong v. District Director, 264 F.3d 378 (3d Cir. 2001); Matter of YL, 23 I. & N. Dec. 270 (A.G. 2002); Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982); Matter of LS, 22 I. & N. Dec. 645 (BIA 1999) (crime of alien smuggling for commercial gain was not particularly serious because the alien-smuggler had no intention of harming the smuggled alien, and the alien-smuggler spent only three-and-a-half months in prison).

[634] Matsuk v. INS, 247 F.3d 999, 1000-01 (9th Cir. 2001) (“when the Attorney General decides that the alien’s offense was a “particularly serious crime,” § 1231(b)(3)(B), we lack jurisdiction to review such a decision because it is discretionary. § 1252(a)(2)(B)(ii).”).

[635] See INA § 241(b)(2)(E), 8 U.S.C. § 1231(b)(2)(E).

[636] Chay-Velasquez v. Ashcroft, 367 F.3d 751 (8th Cir. May 6, 2004) (noncitizen who had committed serious nonpolitical crimes in native country ineligible for asylum or withholding or removal).

[637] Cheema v. INS, 350 F.3d 1035 (9th Cir. Dec. 1, 2003) (BIA denial of withholding reversed for lack of evidence that reasonable grounds exist to believe defendants are danger to security of the United States).

[638] Compare INA § 241(b)(2)(E), 8 U.S.C. § 1231(b)(2)(E) with INA § 208(b)(2)(A)(v), 8 U.S.C. § 1158(b)(2)(A)(v).