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).

WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME
National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 982-983, 125 S.Ct. 2688 (June 27, 2005) ("A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. . . . Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. " [emphasis added]).

Congress is not presumed to overrule existing law sub silentio. The categorical analysis and divisible statute rules were in place before the recent immigration legislation was enacted. There are strong arguments that the BIA's decision in Matter of Babaisakof, 24 I. & N. Dec. 306 (BIA 2007), does not qualify as the type of subsequent administrative interpretation under the Supreme Court's test in Brand X that can abrogate the Ninth Circuit fraud decisions. See Brand X, supra, 545 U.S. at 982: "A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." In Chang v. INS, 307 F.3d 1185 (9th Cir. 2002), the Ninth Circuit's language suggests its decision was based on the "unambiguous terms" of INA 101(a)(43)(M)(i) and the statutory definition of conviction at INA 101(a)(48)(A): "To adopt the government's approach would divorce the $10,000 loss requirement from the conviction requirement, see 8 U.S.C. 1227(a)(2)(A)(iii) (providing that an alien is deportable 'who is convicted of an aggravated felony'." Chang v. INS is the type of circuit decision that the Court in Brand X said is not subject to abrogration by a later administrative interpretation. The argument may not be as strong for Matter of NAM, 24 I. & N. Dec. 336 (BIA 2007) (offense need not be an aggravated felony to be a particularly serious crime for withholding purposes), or in other circuits, but in the Ninth Circuit, because Chang was linked to statutory construction and not just the Taylor/Shepard analysis, the BIA's later interpretation cannot overrule the Ninth Circuit's decision in Chang v. INS. Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004), or the other 9th Circuit fraud cases, may offer additional support. Thanks to Dan Kesselbrenner.

BIA

RELIEF - WITHHOLDING - WHEN IJ GRANTS WITHHOLDING WITHOUT ASYLUM THE DECISION MUST ORDER REMOVAL
Matter of IS & CS, 24 I. & N. Dec. 432 (BIA 2008) (when an Immigration Judge issues a decision granting an aliens application for withholding of removal under INA 241(b)(3), 8 U.S.C. 1231(b)(3) (2000), without a grant of asylum, the decision must include an explicit order of removal). http://www.usdoj.gov/eoir/vll/intdec/vol24/3595.pdf

RELIEF -WITHHOLDING - PARTICULARLY SERIOUS CRIME
Matter of NAM, 24 I. & N. Dec. 336 (BIA 2007) (for purposes of withholding of removal, a criminal offense does not have to be an aggravated felony in order to be considered a particularly serious crime under INA 241(b)(3)(B)(ii); once the elements of a conviction are found potentially to qualify as a particularly serious crime, all reliable information may be considered in determining whether the conviction constitutes a particularly serious crime). http://www.usdoj.gov/eoir/vll/intdec/vol24/3588.pdf

Second Circuit

RELIEF - WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME
Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. Jul. 9, 2008) (New York conviction for first degree reckless endangerment [discharge of a firearm into the air] is a particularly serious crime for purposes of withholding of removal; a crime can be a particularly serious crime for purposes of withholding of removal even if it is not an aggravated felony).

Third Circuit

RELIEF - WITHHOLDING OF REMOVAL
Yusupov v. Attorney General, 518 F.3d 185 (3rd Cir. Mar 14, 2008, as amended Mar 27, 2008) (interpreting national security exception to withholding of removal claims, prohibiting withholding of removal if "there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States," under INA 241(b)(3)(B)(iii)).

RELIEF - WITHHOLDING - SALE OF DRUGS - REQUIRES CONSIDERATION OF UNDERLYING FACTS
Lavira v. Attorney General of U.S., 478 F.3d 158 (3d Cir. Feb. 26, 2007) (reversing where IJ failed to examine underlying facts of the case in determining whether conviction for attempted sale of a controlled substance was a "particularly serious crime" for asylum/withholding purposes), following Vente v. Gonzales, 415 F.3d 296, 302-03 (3d Cir.2005) ("[I]f the BIA fails to address one of an applicant's stated grounds for relief, the case must be remanded for the BIA to consider the claim.").

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - CONVICTIONS OTHER THAN CONVICTION IN QUESTION ARE IRRELEVANT TO THIS DETERMINATION
Lavira v. Attorney General of U.S., 478 F.3d 158 (3d Cir. Feb. 26, 2007) (immigration judge erred in considering convictions of the defendant other than the conviction in question in offense was a particularly serious crime).

RELIEF - ASYLUM - CRIMINAL DEPORTEES NOT RECOGNIZED AS A SOCIAL GROUP
Toussaint v. Attorney Gen., 455 F.3d 409 (3d Cir. Jul. 26. 2006) (criminal deportees are not recognized as a social group for asylum purposes under United States immigration laws; rejecting asylum claim of Hatian asylum applicant that she would be persecuted in Haiti because she was removed from the United States as a criminal). http://caselaw.lp.findlaw.com/data2/circs/3rd/053311p.pdf

JUDICIAL REVIEW - PARTICULARLY SERIOUS CRIME - WITHOLDING
Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (decision that criminal offense was a "particularly serious crime" not barred from judicial review, since the question is a matter of law, not in the discretion of the Attorney General). http://caselaw.lp.findlaw.com/data2/circs/3rd/051632p.pdf

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - CRIME MUST BE AGGRAVATED FELONY TO BE PSC
Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (BIA decision that bank fraud conviction was a "particularly serious crime" reversed because offense must be an aggravated felony to be considered a PSC and petitioner's bank fraud conviction was not an aggravated felony). http://caselaw.lp.findlaw.com/data2/circs/3rd/051632p.pdf

Seventh Circuit

RELIEF - INA 212(d)(3) WAIVER - NO RETROACTIVE WAIVER
Borrego v. Mukasey, 539 F.3d 689, 2008 WL 3892137 (7th Cir. Aug. 25, 2008) (noncitizen who fraudulently received visitors visa, then married a USC, could not retroactively apply for a nonimmigrant wavier of inadmissibility under INA 212(d)(3), and thus become eligible to adjust status pursuant to marriage), following Matter of Fueyo, 20 I & N Dec. 84 (BIA 1989).

RELIEF - WITHHOLDING OF REMOVAL - POLITICAL ASYLUM
Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. Nov. 29, 2006) (success in establishing persecution for purposes of withholding of removal necessarily implies standards for asylum have also been met; upon remand after determining conviction was not a particularly serious crime for asylum purposes, only remaining issue in asylum claim is whether asylum should be granted as a matter of discretion), following INS v. Cardoza-Fonseca, 480 U.S. 421, 448-449 (1987); Ghebremedhin v. Ashcroft, 392 F.3d 241, 244 (7th Cir. 2004).

RELIEF - 209(c) WAIVER FOR REFUGEES
Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. Nov. 29, 2006) (deferring to BIAs determination that refugee status automatically terminates upon adjustment to LPR and therefore 209(c) waiver is unavailable to former refugee-LPR seeking to re-adjust to avoid removal).

RELIEF - WAIVER - HEIGHTENED HARDSHIP STANDARD FOR ASYLEES/REFUGEES CONVICTED OF DANGEROUS CRIMES IS NOT ULTRA VIRES TO THE STATUTE
Ali v. Achim, 468 F.3d 462 (7th Cir. Nov. 6, 2006) (Attorney General's heightened "exceptional and extremely unusual hardship" standard, under Matter of Jean, 23 I. & N. Dec. 373, 383 (A.G. 2002), for aliens convicted of "violent or dangerous" criminal acts who seek to adjust status under INA 209(c), 8 U.S.C. 1159(c)); accord, Rivas-Gomez v. Gonzales, 441 F.3d 1072, 1078 (9th Cir. 2006); Jean v. Gonzales, 452 F.3d 392, 397 (5th Cir. 2006).

RELIEF - WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME
Ali v. Achim, 468 F.3d 462 (7th Cir. Nov. 6, 2006) (a conviction does not have to be an aggravated felony in order to be found a particularly serious crime for purposes of withholding of removal; Wisconsin conviction of substantial battery with intent to cause substantial bodily harm by using a dangerous weapon in violation of Wis.Stat. 940.19(3), 939.63, a particularly serious crime, even if not an aggravated felony).

JUDICIAL REVIEW - PETITION FOR REVIEW - DISCRETIONARY DECISION - WHETHER CONVICTION CONSTITUTES A PARTICULARLY SERIOUS CRIME IS A DISCRETIONARY DECISION NOT SUBJECT TO PETITION FOR REVIEW JURISDICTION
Petrov v. Gonzales, 464 F.3d 800, 2006 WL 2846451 (7th Cir. Oct. 6, 2006) (question whether conviction constitutes a particularly serious crime, under 8 U.S.C. 1252(a)(2)(C), precluding political asylum or withholding of deportation, is held to be a discretionary decision not subject to petition for review jurisdiction in the court of appeals).
http://caselaw.lp.findlaw.com/data2/circs/7th/054696p.pdf

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME
Tunis v. Gonzales, 447 F.3d 547 (7th Cir. May 15, 2006) (Wisconsin conviction of two counts of selling less than a gram of cocaine, with two years suspended sentence, with seven months actual custody ordered, constituted aggravated felony drug trafficking convictions, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), and thus particularly serious crimes under 8 U.S.C. 1231(b)(3)(B)(ii), for purposes of barring political asylum and withholding of removal, because respondent who was the seller in two drug transactions could not be a peripheral figure in the transactions, as required to be eligible for a discretionary finding that her offense was not a particularly serious crime), interpreting Matter of YL, 23 I. & N. Dec. 270, 276-277 (BIA 2002).

Ninth Circuit

RELIEF " WITHHOLDING OF REMOVAL " POLITICAL ASYLUM " PARTICULARLY SERIOUS CRIME NEED NOT BE AGGRAVATED FELONY
Delgado v. Holder, 648 F.3d 1095 (9th Cir. Aug. 19, 2011) (criminal offense need not be an aggravated felony to be a particularly serious crime to disqualify a noncitizen from eligibility for withholding of removal under 8 U.S.C. 1252(a)(2)(B)(ii)).

JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEAL LACKS JURISDICTION TO REVIEW PARTICULARLY SERIOUS CRIME DETERMINATION FOR PURPOSES OF WITHHOLDING OF REMOVAL
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (court of appeal lacks jurisdiction to review the merits of a "particularly serious crime" determination for purposes of withholding of removal).

RELIEF - ASYLUM - WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME - PRESUMPTION THAT DRUG TRAFFICKING OFFENSE WITH SENTENCE UNDER FIVE YEARS IS PSC
Miguel-Miguel v. Gonzales, ___ F.3d ___, 2007 WL 2429377 (9th Cir. 2007) ("We hold that the Attorney General's construction of 1231(b)(3)(B) as providing him with discretion to create a strong presumption that drug trafficking offenses are particularly serious crimes is not impermissible. [A]fter Matter of Y-L-, a Frentescu analysis is no longer required with regard to drug trafficking offenses. ... We agree that the BIA applied Matter of Y-L- retroactively to Miguel, and that it was forbidden from doing so by Montgomery Ward.").

RELIEF - WITHHOLDING OF REMOVAL - BIA FAILED TO CONSIDER MITIGATING FACTS IN DISCRETIONARY DETERMINATION
Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (BIA acted arbitrarily in failing to consider the facts of noncitizens California conviction for unlawful sexual intercourse with a minor in applying Frentescu standard to decide whether conviction constituted a "particularly serious crime" for purposes of withholding of removal).

Tenth Circuit

RELIEF - WITHHOLDING OF DEPORTATION - PARTICULARLY SERIOUS CRIME
N-A-M v. Holder, 587 F.3d 1052 (10th Cir. Nov. 20, 2009) (Colorado conviction of felony menacing, in violation of Colo.Rev.Stat. 18-3-206(1)(a), (b), may constitute a particularly serious crime, for purposes of barring withholding, even though it is not an aggravated felony), disagreeing with Alaka v. Atty. Gen'l of the U.S., 456 F.3d 88, 104 (3d Cir.2006) ("The plain language and structure (i.e., context) of the statute indicate that an offense must be an aggravated felony to be sufficiently serious.").