Crimes of Moral Turpitude


§ 3.46 XXX. Withholding of Removal

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Withholding of removal under the INA (not to be confused with withholding of removal under the Convention Against Torture[542]) 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.[543]  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.”[544]  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.[545]


            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.[546]  This bar is retroactive.[547]  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.”[548]  At least one court has found that an offense must be an aggravated felony to constitute a PSC for purposes of withholding of removal.[549]  The BIA disagrees.[550]


As with asylum, withholding under the INA may also be denied on other criminal grounds,[551] 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,[552] or that “serious reasons” exist for believing the noncitizen is a danger to the security of the United States.[553]  Even terrorist activity may not be cause to deny withholding of removal.[554]

[542] See § 3.8, supra.

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

[544] 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.”  But see, Miguel-Miguel v. Gonzales, 500 F.3d 941 (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.")

[545] See § 3.30, supra.

[546] 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”).

[547] 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).

[548] See § 3.30, supra.

[549] 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).

[550] 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).

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

[552] 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).

[553] 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).

[554] 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).



Ninth Circuit

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)).
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).

Tenth Circuit

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.").