Criminal Defense of Immigrants

 

(A)  Particularly Serious Crimes.  A two-step process is used in determining whether a conviction constitutes a “particularly serious crime” (“PSC”) sufficient to disqualify a noncitizen from asylum or withholding of removal.  First, if the offense is considered an aggravated felony, the noncitizen is statutorily disqualified for asylum, regardless of sentence,[246] and is statutorily disqualified from withholding if the sentence imposed is for five years or more.[247]

 

Second, if a conviction is found not to be a particularly serious crime under either of the statutory bars, the conviction may still be found by the IJ to be a PSC by looking at the factors described in Matter of Frentescu.[248]  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.”[249]  This test does not involve “an examination of the respondent’s family or community ties, the risk of persecution in the alien’s native country” or going “behind the record of conviction to redetermine the alien’s innocence or guilt.”[250]  The question of guilt or innocence is distinguished from the question of the extent of culpability and the seriousness of the crime.[251]  The court may not go beyond the record of conviction in making its determination, [252] and the court may not consider facts related only to dismissed counts.[253]

 

There are relatively few cases in which the courts have actually determined whether an offense is a PSC.[254]  The BIA has noted that “[c]rimes against the person are more likely to be categorized as ‘particularly serious crimes.’”[255]  The Attorney General, in Matter of Jean,[256] has additionally held that, even where the conviction is not considered an aggravated felony, any “violent or dangerous” crimes will be considered particularly serious “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 . . . .”

 

                In Matter of YL,[257] the Attorney General overruled prior law[258] 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.[259]

 

At least one court has held that Matter of YL is not inconsistent with prior law on particularly serious crimes requiring that the court engage in an individualized determination of whether the offense is a “particularly serious crime.”[260]  Where the aggravated felony does not involve drug trafficking, the prior law requiring an individualized determination should still stand.[261]  The federal courts have traditionally found drug trafficking offenses to be PSC.[262] 

 

                Prior to Matter of YL, the Attorney General had found that simple possession of a controlled substance was not a PSC.[263]  This should still be the case, especially in light of the United States Supreme Court decision in Lopez v. Gonzales,[264] which noted the difficulty in calling simple possession a “drug trafficking” offense.[265]

 

                The circuit courts are split on whether they have jurisdiction to review findings that a given conviction is for a particularly serious crime.[266]

[246] Ibid.

[247] INA § 241(b)(3)(B); 8 U.S.C. § 1231(b)(3)(B).  At least one court has held that, for withholding of removal purposes, a conviction must be an aggravated felony in order to be a 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).

[248] Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982).

[249] Ibid.  See also Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001).

[250] Matter of LS, 22 I. & N. Dec. 645, 651 (BIA 1999).

[251] See, e.g., Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (BIA acted arbitrarily in failing to consider the facts of noncitizen’s 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).

[252] Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (“only the record of conviction and sentencing information may be considered in determining whether Morales’s conviction was for a particularly serious crime.”), citing Matter of LS, 22 I. & N. Dec. 645, 651 (BIA 1999).

[253] Id. (IJ erred in relying on facts in a Washington appellate court’s opinion to determine whether petitioner’s prior conviction was for a particularly serious crime, where a large portion of the facts relied upon applied to offenses for which she was not convicted).

[254] See, e.g., Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes, in violation of Wash. Rev. Code § 9.68A.090, constituted crime of moral turpitude, but was not a particularly serious crime); 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); Cepero v. BIA, 882 F.Supp. 1575 (D. Kan. 1995) (bank robbery); Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993) (shooting with intent to kill); Matter of Carballe, 19 I. & N. Dec. 357 (BIA 1986) (robbery); Matter of Garcia-Garrocho, 19 I. & N. Dec. 423 (BIA 1986) (residential burglary). 

[255] Ibid.

[256] Matter of Jean, 23 I. & N. Dec. 373, 385 (A.G. 2002) (second-degree manslaughter conviction arising from an incident where defendant had shaken and otherwise injured a baby in an attempt to stop the baby from crying, is a particularly serious crime).

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

[258] See Matter of SS, 22 I. & N. Dec. 458 (BIA 1999), modifying Matter of QTMT, 21 I. & N. Dec. 639 (BIA 1996).  But see Matter of UM, 20 I. & N. Dec. 327 (BIA 1991) (considering all “drug trafficking” crimes punishable under federal law to be particularly serious crimes).

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

[260] 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”).  See also Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990) (requiring that BIA consider each drug offense individually).

[261] 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.”).

[262] See, e.g., Tunis v. Gonzales, 447 F.3d 547 (7th Cir. May 15, 2006) (sale of cocaine; applying Matter of YL, 23 I. & N. Dec. 270 (A.G. 2002)); Crespo-Gomez v. Richard, 780 F.2d 932 (11th Cir. 1986) (possession of cocaine for sale); Mahini v. INS, 779 F.2d 1419 (9th Cir. 1986) (distribution of heroin).

[263] Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (A.G. 1994).

[264] Lopez v. Gonzales, 127 S.Ct. 625 (Dec. 5, 2006) (state felony conviction for simple possession of a controlled substance cannot be considered an aggravated felony drug trafficking offense, because it is not a federal felony).

[265] Id. at 630 (“Reading §   924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government’s position.”).

[266] Compare Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (question whether conviction constitutes a particularly serious crime, under INA § 242, 8 U.S.C. § 1252(a)(2)(C), precluding political asylum or withholding of removal, is a discretionary decision not subject to petition for review); Almaghzar v. Gonzales, 450 F.3d 415 (9th Cir. Jun. 8, 2006) (court lacks jurisdiction to review claim that IJ erred in concluding that noncitizen’s felony convictions constituted particularly serious crimes); Singh v. Ashcroft, 351 F.3d 435 (9th Cir. Dec. 5, 2003); Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001), with 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).