S-S

Interim Decision #3317

In re S-S-, Respondent

Decided May 6 , 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Pursuant to section 101(a)(48)(B) of the Immigration and Nationality Act (to be codified at

8 U.S.C. § 1101(a)(48)(B)), an alien’s term of imprisonment or sentence is determined for

immigration purposes by the period of incarceration or confinement ordered by a court of

law, irrespective of whether the sentencing court suspended the imposition or execution of

the sentence in whole or in part.

(2) Section 101(a)(48)(B) of the Act took effect on September 30, 1996, and applies to convic-

tions and sentences entered before, on, or after that date.

(3) The respondent’s 1993 suspended sentence for an indeterminate term not to exceed 5 years

under Iowa law is a sentence to 5 years’ imprisonment for immigration purposes and, conse-

quently, satisfies the imprisonment requirements of the deportation charges under sections

241(a)(2)(A)(i) and (iii) of the Act, 8 U.S.C. §§ 1251(a)(2)(A)(i) and (iii) (1994).

(4) The respondent’s conviction for terrorism under section 708.6 of the Iowa Code Annotated

is a felony involving a substantial risk that physical force may be used against the victim

and, therefore, constitutes a “crime of violence” as defined in 18 U.S.C. § 16(b) (1994).

FOR THE RESPONDENT: Joseph Lopez Wilson, Esquire, Omaha, Nebraska

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Paula V. Davis, Assistant

District Counsel

BEFORE: Board Panel: HOLMES, FILPPU, and GUENDELSBERGER, Board Members.

HOLMES, Board Member:

The respondent has filed a timely appeal from an Immigration Judge’s

December 15, 1994, decision finding him deportable as charged and ineligi-

ble for the requested relief of asylum and withholding of deportation. The

appeal will be dismissed.

I. BACKGROUND

The respondent is a 30-year-old native and citizen of Laos who entered the

United States as a refugee in December 1988. In August 1993, he pleaded

guilty to the offense of terrorism, a class “D” felony under Iowa law. The

respondent received a suspended sentence for a prison term not to exceed 5

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Interim Decision #3317

years, and 2 years’ probation. In September 1993, he was charged with

deportability under section 241(a)(2)(A)(i) of the Immigration and National-

ity Act, 8 U.S.C. § 1251(a)(2)(A)(i) (Supp. V 1993), as an alien convicted of

a crime involving moral turpitude, and under section 241(a)(2)(A)(iii) of the

Act, as an aggravated felon. At the deportation hearing on December 15,

1994, the Immigration Judge sustained both charges of deportability. He held

that the respondent’s indeterminate sentence was, in legal effect, a sentence

for the maximum term imposed, 5 years. Moreover, the Immigration Judge

concluded that the respondent’s aggravated felony conviction made him stat-

utorily ineligible for either asylum or withholding of deportation. The

respondent’s appeal ensued.

II. DEPORTABILITY

The respondent’s first claim of error on appeal relates to the Immigration

Judge’s deportability finding. He argues that his suspended sentence for an

indeterminate term not to exceed 5 years cannot properly be deemed a sen-

tence of “a year or longer” for purposes of deportability as an alien convicted

of a crime involving moral turpitude, or “at least five years” for purposes of

deportability as an aggravated felon as defined in section 101(a)(43)(F) of the

Act, 8 U.S.C. § 1101(a)(43)(F) (1994).1

In addressing these arguments, our first task is to determine the source of

law that will govern in order to decide whether the sentence requirements at

issue have been satisfied. While the respondent’s appeal was pending before

this Board, section 101(a)(48)(B) of the Act (to be codified at 8 U.S.C.

§ 1101(a)(48)(B)) was created by section 322(a)(1) of the Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996, Division C of Pub.

L. No. 104-208, 110 Stat. 3009-546, 3009-628 (enacted Sept. 30, 1996)

(“IIRIRA”). This amendment provides, in pertinent part:

Any reference to a term of imprisonment or a sentence with respect to an offense is deemed

to include the period of incarceration or confinement ordered by a court of law regardless of

1 During the pendency of the respondent’s appeal to the Board, Congress amended section

101(a)(43)(F) of the Act by enacting section 321(a)(3) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546,

3009-627 (enacted Sept. 30, 1996) (“IIRIRA”). This amendment, which decreased the

imprisonment threshold for crimes of violence from 5 years to 1 year, applies to this

respondent’s pending deportation appeal. See IIRIRA § 321(b), 110 Stat. at 3009- 628

(regarding effective date); Matter of Yeung, 21 I&N Dec. 610 (BIA 1996). Section

241(a)(2)(A)(i)(II) of the Act was also amended during the pendency of the appeal by section

435(a) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214, 1274 (enacted Apr. 24, 1996) (“AEDPA”). Under this amendment, an alien is

deportable as having been convicted of a crime of moral turpitude if, among other

requirements, he or she “is convicted of a crime for which a sentence of one year or longer may

be imposed.” AEDPA § 435(a) (emphasis added). This amendment is not controlling here,

however, since it applies only to aliens against whom deportation proceedings were initiated

after the AEDPA’s April 24, 1996, date of enactment. See AEDPA § 435(b), 110 Stat. at 1275.

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Interim Decision #3317

any suspension of the imposition or execution of that imprisonment or sentence in whole or

in part.

IIRIRA § 322(a)(1).

There is relevant legislative history on this provision. According to the

Joint Explanatory Statement of the Committee of Conference, Congress’

specific purpose in enacting section 322(a)(1) of the IIRIRA was to overturn

prior administrative precedent holding that a sentence is not “actually

imposed” when the court has suspended the “imposition” of the sentence. See

H.R. Conf. Rep. No. 104-828, available in 1996 WL 563320, at 495-97. See

generally Matter of Esposito, 21 I&N Dec. 1 (BIA 1995); Matter of Castro,

19 I&N Dec. 692 (BIA 1988).

Section 322(c) of the IIRIRA, 110 Stat. at 3009-629, contains the express

effective date for section 322(a). It states, in pertinent part, that the “amend-

ments made by subsection (a) shall apply to convictions and sentences

entered before, on, or after the date of the enactment of this Act.”

We accordingly find that section 322(a) of the IIRIRA took effect on Sep-

tember 30, 1996, the date of the IIRIRA’s enactment. See id. See generally

Matter of N-J-B-, 21 I&N Dec. 812 (BIA 1997); Matter of Yeung, 21 I&N

Dec. 610 (BIA 1996). We find further that section 101(a)(48)(B) of the Act,

as created by section 322(a)(1) of the IIRIRA, applies to the respondent’s

pending deportation case, even though it was not in effect at the time of the

Immigration Judge’s decision.2

In applying section 101(a)(48)(B) of the Act to determine whether the

respondent’s sentence satisfies the imprisonment components of the deporta-

tion charges, we begin by noting that the fact that his sentence was suspended

is irrelevant to the analysis, as is the length of time actually served, if any.

This is so even if the “imposition” of that sentence was suspended, as is

asserted on appeal. Rather, the only relevant inquiry is the term to which the

respondent was sentenced by the court.

In this case, the respondent was ordered committed to the custody of the

Iowa Department of Corrections for a term not to exceed 5 years. Under Iowa

sentencing law, an incarcerated individual remains in the custody of the

director of the Department of Corrections until the maximum term of the per-

son’s confinement has been completed or until released by order of the Board

of Parole, unless the sentencing judge reconsiders the sentence within 90

days from the date the individual begins to serve the sentence of confine-

ment. Iowa Code Ann. §§ 902.3, 902.4, 902.6 (West 1996); see also State v.

Kulish, 148 N.W.2d 428 (1967) (finding that, under Iowa law, the ultimate

determination of the length of sentence within the statutory maximum rests

2 We observe that applying the new amendment to the respondent’s conviction does not

implicate retroactivity concerns within the meaning of Landgraf v. USI Film Products, 511

U.S. 244, (1994). Where, as here, the temporal effect of a statute is manifest on its face, “‘there

is no need to resort to judicial default rules’” and the inquiry is at an end. Lockheed Corp. v.

Spink, 517 U.S. 882, 116 S. Ct. 1783, 1786 (1996) (quoting Landgraf, 511 U.S. at 280).

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Interim Decision #3317

with the parole board). There is no indication that the respondent’s sentence

has been reconsidered pursuant to the time period allotted by the statute.

We agree with the Immigration Judge that the term to which the respon-

dent was sentenced by the court was for the maximum potential term, 5 years.

See Nguyen v. INS, 53 F.3d 310 (10th Cir. 1995) (concluding that it was rea-

sonable and permissible for the Board to measure an indeterminate sentence

by the maximum term of imprisonment for purposes of section 101(a)(43) of

the Act); see also Pichardo v. INS, 104 F.3d 756, 759 (5th Cir. 1997); Matter

of D-, 20 I&N Dec. 827, 829 (BIA 1994); Matter of Chen, 10 I&N Dec. 671

(BIA 1964); Matter of Ohnhauser, 10 I&N Dec. 501 (BIA 1964); Matter of

R-, 1 I&N Dec. 540 (BIA 1943); Matter of R-, 1 I&N Dec. 209 (BIA 1942).

We thus find that the respondent’s prison sentence satisfies the imprisonment

components of both deportation charges.

The respondent also asserts on the Notice of Appeal that the Immigration

Judge improperly characterized his offense as a “crime of violence” under

section 101(a)(43)(F) of the Act. He does not develop this argument in his

appeal brief, apart from stating that the crime occurred when his mental

capacity was in a “reduced” state. In order to determine whether the crime of

terrorism is a crime of violence, we look to the statutory definition, not the

facts underlying the conviction.3 See Matter of B-, 21 I&N Dec. 287 (BIA

1996); see also United States v. Moore, 38 F.3d 977 (8th Cir. 1994); United

States v. Bauer, 990 F.2d 373 (8th Cir. 1993); United States v. Rodriguez, 979

F.2d 138 (8th Cir. 1992). We agree with the Immigration Judge that the

offense of terrorism, in violation of section 708.6 of the Iowa Code Anno-

tated, is a felony involving a substantial risk that physical force may be used

against the victim. Thus, the respondent’s offense is a “crime of violence,” as

defined in the Act, and therefore constitutes an aggravated felony under sec-

tion 101(a)(43) of the Act.

In sum, we uphold the Immigration Judge’s finding that the respondent is

deportable as charged under sections 241(a)(2)(A)(i) and (iii) of the Act, as

having been convicted of a crime involving moral turpitude and an aggra-

vated felony.

III. RELIEF FROM DEPORTATION

The respondent’s remaining claim of error relates to the Immigration

Judge’s denial of asylum and withholding of deportation. He asserts, among

other things, that his status as an aggravated felon should not bar him from

receiving these forms of relief. We disagree.

3 As the Immigration and Naturalization Service notes on appeal, the respondent’s

conviction became final upon his plea of guilty, and neither the Immigration Judge nor this

Board may relitigate the issue of his guilt in these deportation proceedings. See Matter of

Madrigal, 21 I&N Dec. 323 (BIA 1996); Matter of Reyes, 20 I&N Dec. 789, 793 (BIA 1994);

see also Longoria-Castenada v. INS, 548 F.2d 233 (8th Cir.), cert. denied, 434 U.S. 853 (1977).

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Interim Decision #3317

Since the respondent qualifies as an aggravated felon, he is per se barred

from applying for asylum. Section 208(d) of the Act, 8 U.S.C. § 1158(d)

(1994); see also 8 C.F.R. § 208.14(d)(4) (1996).4 Moreover, as the respon-

dent’s sentence for the aggravated felony conviction was for a term of at least

5 years, he is conclusively disqualified from withholding of deportation.

See 62 Fed. Reg. 10,312, 10,343-44 (to be codified at 8 C.F.R.

§§ 208.16(c)(2),(3)) (interim, effective Apr. 1, 1997); see also Matter of

Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996); 8 C.F.R. § 208.16(c)(2) (1996).

ORDER: The appeal is dismissed.

4 We have no authority to entertain the respondent’s challenge to the validity of 8 C.F.R.

§ 208.14. See Matter of Ponce de Leon, 21 I&N Dec. 154 (BIA 1996); Matter of Anselmo, 20

I&N Dec. 25 (BIA 1989).

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