GONZALEZ

Interim Decision 4t 3071

MATTER OF GONZALEZ

In Exclusion Proceedings

A-23225580

Decided by Board July 97, 1988

(1) An applicant in exclusion proceedings who has been convicted in a state court of

possession of heroin with intent to deliver is statutorily ineligible for the relief of

withholding of exclusion and deportation pursuant to section 243(hX2) of the Im-

migration and Nationality Act, 8 U.S.C. § 1253(hX2) (1982), by virtue of having

been convicted of a particularly serious crime.

(2)The Board of Immigration Appeals and immigration judges are not bound by the

provisions of 8 C.F.R. § 208.8(f)(1)(iv) (1988), which precludes district directors of

the Immigration and Naturalization Service from granting asylum to an alien

who, having been convicted by a fund judgamut of a particularly coriouc crime,

constitutes a danger to the community of the United States.

(3) While the Board and immigration judges are not precluded from granting the

relief of asylum to an alien who is barred from relief under section 243(h)(2) of the

Act as one who has been convicted of a particularly serious crime, we have, as a

matter of practice, considered such a bar to be a controlling factor in determining

whether an alien warrants a grant of asylum in the exercise of discretion.

(4) The Board now withdraws from the practice of pretermitting asylum applications

when the statutory bar is applicable under section 243(hX2) of the Act and thus

requires a full evidentiary hearing on the merits of the claim in order to deter-

mine if asylum should be granted in the exercise of discretion. Matter of Garcia-

Garrocho, 19 I&N Dec. 429 (BM. 1986); Matter of Corballe, 19 I&N Dec. 357 (BIA

1986); Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985); Matter of Salim, 18

I&N Dec. 311 (BIA 1982); Matter of Frenteseu, 18 I&N Dec. 244 (BIA 1982); Matter

of Doural 18 I&N Dec. 37 (BIA 1981); Matter of Ballester-Garcia, 17 I&N Dec. 592

(BIA 1980); and Matter (...1 Roth igue,e -Palma, 17 I&N Dec. 465 (BIA 1990), modified .

EXCLUDABLE: Act of 1952—Sec. 212(aX20) [8 U.S.C. § 1182(aX20)j—No valid immi-

grant visa

Sec. 212(aX23) [8 U.S.C. § 1182(aX23)j—Convicted of

narcotics violation

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Interim Decision #3071

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:

David Rubman, Esquire Kathleen M. Gaber

Legal Services Center for Immigrants General Attorney

Legal Assistance Foundation of Chicago

1661 South Blue Island Avenue

Chicago, Illinois 60608

BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members. Concurring

Opinion: Heilman, Board Member.

In a decision dated July 15, 1986, an immigration judge found

the applicant excludable under sections 212(a)(20) and (23) of the

Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(20) and (23)

(1982), declined to consider his request for asylum under section

208(a) of the Act, 8 U.S.C. § 1158(a) (1982), and ordered him ex-

cluded. and deported from the United States. The applicant has ap-

pealed. The appeal will be sustained and the record remanded. The

request for oral argument before the Board is denied.

The applicant is a 41-year-old native and citizen of Cuba who ar-

rived at Key West, Florida, on June 20, 1980, and was subsequently

paroled into the United States. We are satisfied from a review of

the record that the applicant was properly found. excludable. At an

exclusion hearing begun on June 24, 1986, and completed on July

15, 1986, the applicant, who was represented by counsel, conceded

his excludability under sections 212(a)(20) and (23) of the Act and

does not now challenge those findings on appeal. Moreover, the

record contains certified true copies of conviction records pertain-

ing to the applicant which reflect that he was twice convicted on

pleas of guilty in the State of Illinois in December 1985, of posses-

sion of a controlled substance, to wit: heroin, with intent to deliver

and was sentenced to prison for a period of 8 years.

The applicant does not contest the immigration judge's findings

that his 1985 convictions for trafficking in heroin were for "par-

ticularly serious crimes" and that he was statutorily ineligible for

withholding of exclusion and deportation on the basis of those con-

victions. His only claim on appeal is that the immigration judge

improperly pretermitted discretionary consideration of his request

for asylum, denying him the opportunity to file a Request for

Asylum (Form 1-589) and to introduce evidence in support of a fa-

vorable exercise of discretion with regard to the requested relief.

We conclude, as did the immigration judge, that the applicant is

statutorily ineligible for withholding of exclusion and deportation

based on his convictions for trafficking in heroin. We are satisfied

that his convictions were for "particularly serious crimes," repro-

Interim Decision #3071

senting criminal behavior which "constitutes a danger to the com-

munity of the United States." See section 243(h)(2)(B) of the Act, 8

U.S.C. § 1253(h)(2)(B) (1982); Matter of Carbolic, 19 I&N Dec. 357

(BIA 1980; Matter of Rodriguez Coto, 19 I&N Dec. 208 (BIA 1985);

-

Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982). The harmful

effect to society from drug offenses has consistently been recog-

nized by Congress in the clear distinctions and disparate statutory

treatment it has drawn between drug offenses and other crimes.

Compare sections 241(a)(1) and (4) with 241(a)(11) of the Act, 8

§§ 1251(a)(1), (4) and (11) (1982). See also section 241(b) of the

Act. By the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stet. 102,

Congress added sections 207(c)(3) and 209(c) of the Act, 8 U.S.C.

§§ 1157(c)(3) and 1159(c) (1982), which, in relevant part, permit the

Attorney General to waive the criminal exclusionary provisions of

section 212(a) of the Act'. Congress recognized that such a waiver

might be required in the discretion of the Attorney General for hu-

manitarian reasons consistent with the purposes of the Refugee

Act. However, it specifically excepted from these waiver provisions

that part of section 212(a)(23) relating to trafficking in narcotics,

again demonstrating the seriousness with which it views this par-

ticular type of criminal offense. S. Rep. No. 256, 96th Cong., 1st

Secs. 15, reprinted in 1980 U.S. Code Cong. & Ad. News 141, 155.

By regulation, an alien subject to the enumerated grounds of

statutory ineligibility for withholding of deportation contained in

section 243(h)(2) of the Act is also precluded from being granted

asylum by a district director. See 8 C.F.R. § 208.8(f)(1) (1988). This

regulatory bar does not preclude an immigration judge or the

Board from granting asylum to an alien within the scope of section

243(hX2) of the Act. 2 However, we have considered the presence of

a statutory bar to withholding of deportation on the basis of a

crime to be a controlling factor in determining whether an alien

warrants a grant of asylum in the exercise of discretion. We have

approved pretermitting the consideration of asylum applications

where, based on the conviction for a particularly serious crime, it

was evident that asylum ultimately would be denied in the exercise

of discretion.

Sections 207 and 209 were added by section 201(b) of the Refugee Act of 1980.

2 We recognize that an alien who has participated in the persecution of others

within the meaning of the Art is not only statutorily ineligible for withholding of

deportation pursuant to section 243(h)(2XA) but is also barred from a grant of

asylum under section 208(a) because his conduct excludes him from the definition of

refugee under section 101(aX42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). Section

101(aX42)(B) of the Ant.

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Interim Decision #3071

This practice of pretermitting asylum applications in cases in-

volving aliens convicted of particularly serious crimes has been ju-

dicially reviewed and most recently rejected by the United States

Court of Appeals for the Eleventh Circuit in Arauz v. Rivkind, 845

F.2d 271 (11th Cir. 1988). See also Shuhandeh-Pey v. INS, 831 F.2d

1384 (7th Cir. 1987). We now withdraw approval of the practice of

pretermitting asylum applications in such cases. As neither the

statute nor the regulations governing the consideration of asylum

applications precludes immigration judges or the Board from grant-

ing asylum to applicants convicted of particularly serious crimes,

an immigration judge should not refuse to conduct a full evidentia-

ry hearing and consider the evidence of record in its totality simply

because an applicant for asylum is ineligible for withholding of de-

portation under the provisions of section 243(h)(2) of the Act. The

nature and gravity of the conviction may militate heavily against

an applicant for asylum, and in cases may ultimately be the deter-

minative factor, but it is not the only evidence that should be re-

ceived and considered by an immigration judge or this Board in

evaluating whether an otherwise eligible applicant warrants a

grant of asylum as a matter of discretion. To the extent that any of

the Board's prior precedents suggest a different result they are

modified. 3

We recognize that on rehearing the court in Arauz v. Rivkind,

supra, at 276, disavowed the district court's requirement that a full

evidentiary hearing be conducted in these cases and stated that the

regulations only required that the alien be afforded some meaning-

ful opportunity to be heard. However, the Board finds that under

the existing regulations, which neither address "pretermission" by

an immigration judge or the Board nor set forth a procedure for

other than a full evidentiary hearing in the relevant cases, the gen-

eral regulatory procedures should be followed, even in cases involv-

ing aliens who have been convicted of "particularly serious

crimes." For reasons as much practical as any other, the Board

finds that a change, if any, to the general regulatory procedures is

more appropriately addressed through regulatory revision. The

Board is not confident that, under the present regulations, holding

full evidentiary hearings in these cases ultimately will be any more

time consuming than creating "hybrid" procedures with concurrent

3 The Board's prior precedents which are modified include: Matter of Garcia-Gar-

roche, 19 I&N Dec. 428 (BIA 1986); Matter of Carbalic, 19 I&N Doe. 357 (BIA 1986);

Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985); Matter of Salim, 18 MN Dec.

311 (BIA 1982); Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982); Matter of Doural,

18 I&N Dec. 37 (BIA 1981); Matter of Ballester-Garcia, 17 I&N Dec. 592 (BIA 1980);

cud Matter of Rodriguez-Palm:a, 17 I&N Dec. 465 (BIA 1980).

Interim Decision #3071

challenges both to the nature of the procedures and the appropri-

ateness of their application in any given case.

As the immigration judge in the present case pretermitted con-

sideration of the applicant's request for asylum, denying him the

opportunity to file a Request for Asylum and to introduce evidence

in support of a favorable exercise of discretion with regard to the

requested relief, the appeal will be sustained and the record re-

manded. On remand, the applicant shall be afforded the opportuni-

ty to present evidence on the merits of his asylum claim and evi-

dence as to whether the requested relief is warranted in the exer-

cise of discretion.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the immigra-

tion judge for further proceedings consistent with the foregoing

opinion and the entry of a new decision.

CONCURRING OPINION: Michael J. Heilman, Board Member

I respectfully concur.

While I agree with the majority that pretermission of an asylum

claim on the ground that the applicant has committed a "particu-

larly serious crime" is incorrect, I would not link this conclusion so

strongly to the holding in Arauz v. Rivkirzd, 845 F.2d. 271 (11th Cir.

1988). That decision is based on an interpretation of regulatory lan-

guage. The court strongly implies that a simple change in the regu-

lations would be sufficient to accord immigration judges the same

authority to deny asylum supposedly provided to district directors

under 8 C.F.R. § 208.8(fXiv) (1988), without considering, "if offered,

evidence other than the alien's conviction when considering a re-

quest for asylum." Arauz v. Rivkind, supra, at 277.

If my understanding of the Eleventh Circuit's decision is correct,

then we could find ourselves revisiting this issue, if the regulations

were to be changed. I do not believe that this impression should be

left. There are many substantial reasons for withdrawing from pre-

vious Board decisions which authorized the pretermission of

asylum claims. One would not know from reading this decision that

any existed, and that they exist quite independently of Arauz v.

Rivkin, supra, and Shahandeh-Pey v. INS, 831 F.2d 1384 (7th Cir.

1987). In my view, the most compelling reason for withdrawing

from our previous position is that, in practice, section 208 of the

Immigration and Nationality Act, 8 § 1158 (1982), has

become virtually indistinguishable from section 243(h) of the Act, 8

U.S.C. § 1253(h) (1982), in regard to the effect a conviction for a par-

ticularly serious crime has on an asylum application. In essence,

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Interim Decision #3071

section 243(h)(2)(B) of the Act has been incorporated by adminis' tra-

five interpretation into section 208 of the Act, and the provisions

have become coterminous.

Secondly, the practice of preterrais' sion of asylum claims appears

to have ignored the basically humanitarian nature of asylum. If

one accepts the proposition that the asylum process by its very

nature is meant to provide refuge to persons whose lives or free-

dom are in danger, then it hardly seems advisable to provide a

process which specifically permits an immigration judge or this

Board to bar any evidence of the nature of the harm the applicant

might face. If, for instance, an individual faced the possibility of

death, or torture and inhuman treatment, would we not want to

know this before deciding to deny asylum in discretion, even where

the individual has committed a particularly serious offense?

Finally, the decision reaches an issue which was not raised on

appeal by the applicant, the question of whether the convictions

were for a "particularly serious offense!' 'While it was not neces-

sary to reach this issue, the majority's discussion might leave one

with the impression that the term has been applied only to drug

trafficking and similar offenses. I would simply add for purposes of

clarification that this provision has enjoyed in several instances a

very expansive interpretation. In addition, it has, as a general

matter, been interpreted to reach well beyond the categories of of-

fenses suggested in the Office of the United Nations High Commis-

sioner for Refugees, Handbook on Procedures and Criteria forDe-

termining Refugee Status Under the 1951 Convention and the 1967

Protocol Relating to the Status of Befugees (Geneva, 1979), whose

more limited application of this provision strikes me as more in

keeping with the nature of the asylum provisions. The Handbook

would apply this language only to a. "capital crime or a very grave

punishable act." Id. at para. 155.

The majority is correct that Ararsz v. Rivkind, supra, is a good

reason to withdraw from the practice of pretermitting asylum

claims. It is not the best or most substantial reason, however, and I

would base the decision on the other grounds discussed above, as

well.