Withholding of removal under the INA (not to be confused with withholding of removal under the Convention Against Torture[517]) 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.[518]  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.”[519]  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.[520]

 

                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.[521]  This bar is retroactive.[522]  An aggravated felony offense where the noncitizen was sentenced to less than five years imprisonment should be examined by the immigration authorities on an individualized basis to determine whether the offense is “particularly serious.”[523]  At least one court has found that an offense must be an aggravated felony to constitute a PSC for purposes of withholding of removal.[524]

 

As with asylum, withholding under the INA may also be denied on other criminal grounds,[525] 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,[526] or that “serious reasons” exist for believing the noncitizen is a danger to the security of the United States.[527]  Even terrorist activity may not be cause to deny withholding of removal.[528]

 

                The circuit courts are split on whether they have jurisdiction to review findings that a particular offense is a particularly serious crime.[529]

[517] See § 24.7, supra.

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

[519] 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.”

[520] See § 24.19(A), supra.

[521] 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”).

[522] 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).

[523] See § 24.19(A), supra.

[524] 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).

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

[526] 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).

[527] 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).

[528] 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).

[529] Compare Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (question whether conviction constitutes a particularly serious crime, under INA § 242(a)(2)(C), 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 alien’s felony convictions constituted particularly serious crimes), 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).

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)).

Fourth Circuit

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - NON-AGGRAVATED FELONY CAN BE PSC
Gao v. Holder, ___ F.3d ___, ___, 2010 WL 624312 (4th Cir. Feb. 23, 2010) (federal conviction for unlawful export of military technology, in violation of 50 U.S.C. 1702 and 1705(b), was a "particularly serious crime," even though it was not classified as an aggravated felony: "We defer to the BIA's reasoned view that an offense need not be an aggravated felony to qualify as a particularly serious crime for purposes of withholding. Furthermore, we conclude that the BIA may determine that a non-aggravated felony is a particularly serious crime for purposes of asylum through the process of case-by-case adjudication.").

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - NON-AGGRAVATED FELONY CAN BE PSC
Gao v. Holder, ___ F.3d ___, ___, 2010 WL 624312 (4th Cir. Feb. 23, 2010) (federal conviction for unlawful export of military technology, in violation of 50 U.S.C. 1702 and 1705(b), was a "particularly serious crime," even though it was not classified as an aggravated felony: "We defer to the BIA's reasoned view that an offense need not be an aggravated felony to qualify as a particularly serious crime for purposes of withholding. Furthermore, we conclude that the BIA may determine that a non-aggravated felony is a particularly serious crime for purposes of asylum through the process of case-by-case adjudication.").

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.").

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.").