Interim Decision #3152

Interim Decision #3152

MATTER OF U-M-

In Deportation Proceedings

A-29202816

Decided by Board June 5, 1991

(1) By federal statute, aggravated felonies and, correspondingly, drug trafficking crimes,

are per se particularly serious crimes.

(2) The respondent in deportation proceedings has been. convicted of particularly serious

crimes, i.e., convictions for the sale of marihuana and lysergic acid diethylamide

(LSD) and, therefore, by operation of law, he is ineligible for asylum pursuant to 8

C.F.R. § 208.14(c)(1) (1991) and for withholding of deportation under section

243(h)(2(B) of the Immigration and Nationality Act, 8 U.S.C_A. § 1253(h)(2)(B)

(West Supp. 1991), and 8 C.F.R. § 208.16(c)(2)(ii) (1991).

(3) The asylum regulations found at 8 C.F.R. §§ 208.1-.24 (1991) are applicable to the

respondent’s applications for asylum and withholding of deportation received by the

Office of the Immigration Judge on November 14, 1990, since these regulations apply

to applications filed on or after October 1, 1990, as provided by 8 C.F.R. § 208.1(a)

(1991).

(4) The statutory bar to asylum for an alien convicted of an aggravated felony, set forth

in section 515(a)(1) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.

4978, 5053 (enacted November 29, 1990), amending section 208 of the Act, 8 U.S.C.

§ 1158 (1988), does not apply to the respondent’s asylum application, where section

515(b){1) of the 1990 Act, 104 Stat. at 5053, provides that this statutory bar ‘shall

apply to applications for asylum made on or after the date of the enactment of this

Act,” and the respondent made his application for asylum with the immigration judge

on November 14, 1990, approximately 2 weeks before the enactment date.

(5) The amendment to section 243(h)(2)(B) of the Act, providing that an alien convicted

of an ageravated felony shall be considered to have committed a particularly serious

crime, is effective on the date of enactment of the Immigration Act of 1990, 104 Stat.

at 4978 (enacted November 29, 1990), where the 1990 Act is silent as to the effective

date of the amendment, and in the absence of an express provision to the contrary, an

act of Congress takes effect on its date of enactment.

(6) Where new statutory provisions affecting eligibility for relief from deportation come

into effect during the pendency of a deportation hearing or an administrative appeal

to this Board, and there exists no statutory directive £0 the contrary, the new statutory

provisions shall be applied to the application for relief before us, and the application

may be denied on the basis of the statutory amendment.

CHARGE:

Order: Act of 1952—Sec. 241(a)(4)(B) [8 U.S.C. § 125 1(a)(4)(B)]}-—Convicted of aggravated felony

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Sec. 241 (a)(11) [8 U.S.C. § 1251(a)(11)]—Convicted of controlled

substance violation

Lodged: Act of 1952—-Sec. 241(a}(2) [8 U.S.C. § 1251(a)(2)]—Entered without inspection

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Pro se - Christopher Stender

General Attorney

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

In a decision dated January 18, 1991, an immigration judge found

the respondent deportable as charged under section 241(a}(2) of the

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1988), as an

alien who had entered the United States without inspection, under

section 241(a)(4)(B) of the Act as an alien convicted of an aggravated

felony, and under section 241 (a)(11) of the Act as an alien convicted of

a controlled substance violation. In his decision, the immigration

judge also denied the respondent’s applications for asylum and

withholding of deportation under sections 208(a) and 243(h) of the

Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1988), respectively, and ordered

the respondent deported from the United States to Uruguay, and

alternatively to El Salvador if Uruguay would not accept him. The

respondent has appealed from that decision. The appeal will be

dismissed.

The respondent, a native and citizen of El Salvador, was convicted

in a California court on November 14, 1986, of the crime of sale or

transportation of marihuana, a felony, in violation of section 11360(a)

of the California Health and Safety Code. For this crime he was

granted a 3-year period of probation, the conditions of which required

him to serve 90 days in jail and pay $100 to a restitution fund. He was

also convicted in a California court on December 13, 1988, of the

crime of sale of a controlled substance, namely lysergic acid diethylamide (“LSD”), a felony, in violation of section 11379 of the

California Health and Safety Code. He was granted probation for a

period of 3 years, the conditions of which included serving 180 days in

jail, paying a fine of $100, and paying restitution of $100. On July 19,

1989, probation for these two crimes was revoked on the basis that the

respondent was in-violation of probation. He was sentenced to 3 years’

imprisonment for the 1988 conviction and 2 years’ imprisonment for

the 1986 conviction, with the sentences to run concurrently. During

the deportation proceedings, the respondent testified that his probation was revoked in lieu of filing charges after he was arrested in June

1989 for sale of marihuana. The respondent also admitted having

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entered the United States without inspection in July 1981. The Board

of Immigration Appeals finds that the respondent’s deportability has

been established by clear, unequivocal, and convincing evidence, as

required by Woodby yv. INS, 385 U.S. 276 (1966), and 8 C.F.R.

§ 242.14(a) (1991).

The immigration judge denied the respondent’s applications for

asylum and withholding of deportation on the basis that he had been

convicted of a particularly serious crime and was thus ineligible for

either asylum or withholding of deportation under the new asylum

regulations. See 8 C.F.R. §§ 208.1-.24 (1991). These regulations apply

to asylum applications filed on or after October 1, 1990. 8 C.F.R.

§ 208.1(a) (1991). The respondent’s application was received by the

Office of the Immigration Judge on November 14, 1990. Under these

regulations, an application for withholding of deportation shall be

denied if “the alien, having been convicted by a final judgment of a

particularly serious crime, constitutes a danger to the community of

the United States.” 8 C.F.R. § 208.16(c)(2){ii) (1991). This language

parrots the statutory bar to withholding of deportation found in

section 243(h)(2)(B) of the Act. Thus, by statute and by the regulation,

the respondent is ineligible for withholding of deportation if convicted

of a particularly serious crime. Additionally, the respondent’s application for asylum shall be denied if “the alien, having been convicted of

a final judgment of a particularly serious crime in the United States,

constitutes a danger to the community.” 8 C.F.R. § 208.14(c)(1)

(1991).!

In the case before us, the respondent has been convicted of sale or

transportation of marihuana in 1986, and sale of a controlled

substance, mamely LSD, in 1988. This Board has previously held that

an alien convicted of trafficking in drugs has been convicted of a

particularly serious crime, representing criminal behavior which

constitutes a danger to the community. Matter of Gonzalez, 19 I&N

Dec. 682 (BIA 1988) (convicted of possession of a controlled

substance, to wit: heroin, with intent to deliver). The case now before

us arose within the jurisdiction of the United States Court of Appeals

' Pursuant to section 515(a)(1) of the Immigration Act of 1990, Pub. L. No. 101-649,

104 Stat. 4978, 5053 (enacted November 29, 1990), amending section 208 of the

Immigration and Nationality Act, an alien who has been convicted of an aggravated

felony may not apply for or be granted asylum. However, although the crimes of which

the respondent was convicted may be aggravated felonies, this newly enacted statutory

bar to asylum does not apply to the respondent’s case. Section 515(b}{1) of the 1990 Act

provides that this statutory bar “shall apply to applications for asylum made on or after

the date of the enactment of this Act.“ 104 Stat. at 5053. As noted above, the respondent

made his application for asylum with the immigration judge on November 14, 19990,

approximately 2 weeks before the enactment date.

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for the Ninth Circuit, which itself noted that it had ratified the Board’s

consistent view that convictions for drug possession and trafficking are

particularly serious within the meaning of section 243(h)(2)(B).

Ramirez-Ramos v. INS, 814 F.2d. 1394 (9th Cir. 1987); see also Mahini

y. INS, 779 F.2d 1419 (9th Cir. 1986) (possession with intent to

distribute heroin constitutes a particularly serious crime). If an alien

has been convicted of a particularly serious crime, it is not required

that there be a separate and distinct finding that he constitutes a

danger to the community, because once a finding of 4 particularly

serious crime is made, it necessarily follows that the alien is a danger

to the community. Ramirez-Ramos v. INS, supra, Matter of Carballe,

19 I&N Dec. 357 (1986), modified on other grounds, Maiter of

Gonzalez, supra.

The record in most proceedings will have to be analyzed on a caseby-case basis to determine whether the conviction is for a particularly

serious crime. This analysis involves 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 an alien will be a danger

to the community. Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982),

modified on other grounds, Matter of Gonzalez, supra. However, some

crimes are inherently particularly serious, requiring no further inquiry

into the nature and circumstances of the underlying conviction. Matter

of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986), modified on other

grounds, Matter of Gonzalez, supra, Matter of Carballe, supra, Matter

of Frentescu, supra.

We find that the crime of trafficking in drugs is inherently a

particularly serious crime. The harmful effect to society from drug

offenses has consistently been recognized by Congress in the clear

distinctions and disparate statutory treatment it has drawn between

drug offenses and other crimes. Matter of Gonzalez, supra. Illicit

narcotic drugs sold in the United States ruin or destroy the lives of

many American citizens each year. Apart from the considerable

number of people in this country who die of overdoses of narcotics or

who become the victims of homicides related to the unlawful traffic of

drugs, many others become disabled by addiction to heroin, cocaine,

and other drugs. There are also many in this country who suffer crimes

against their persons and property at the hands of drug addicts and

criminals who use the proceeds of their crimes to support their drug

needs. Additionally, a considerable amount of money is drained from

the economy of the United States annually because of unlawful

trafficking in drugs. This unfortunate situation has reached epidemic

proportions and it tears the very fabric of American society. As we find

trafficking in drugs to inherently be a particularly serious crime, no

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further inquiry is required into the nature and circumstances of the

respondent’s convictions for sale or transportation of marihuana and

sale of LSD.

The Ninth Circuit has recently held in a case involving a conviction

for sale of marihuana that it is improper to find that the crime is

particularly serious without an analysis of the characteristics and

circumstances of the alien’s conviction. Beltran-Zavala v. INS, 912

F.2d 1027 (9th Cir. 1990). The court stated that section 243(h)(2)(B) of

the Act does not erect classes of crimes that are per se particularly

serious, observing that if Congress wanted to erect per se classifications of crimes precluding immigration and nationality benefits, it

knew how to do so. Id. at 1032.

However, since the court’s decision in that case, Congress has acted.

Section 243(h)(2)(B) has been amended by section 515(a)(2) of the

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5053,

to provide that an alien convicted of an aggravated felony shall be

considered to have committed a particularly serious crime. Section

101(a)(43) of the Act, 8 U.S.C.A. § 1101(a)(43) (West Supp. 1991),

now defines an “aggravated felony” to include “any illicit trafficking

in any controlled substance (as defined in section 102 of the

Controlled Substances Act), including any drug trafficking crime as

defined in section 924(c)(2) of title 18, United States Code ..,.°”?

As defined in 18 U.S.C. § 924(c)(2) (1988), a “drug trafficking

crime” means “any felony punishable under the Controlled Substances

Act (21 U.S.C. §§ 801 et seq.).” As noted above, the respondent was

convicted of sale or transportation of marihuana in 1986 and of sale of

LSD in 1988. The respondent’s convictions are punishable under 21

U.S.C. § 841(a) (1988), and, bascd upon the terms of imprisonment

which may be imposed under 21 U.S.C. § 841(b) (1988), his crimes

constitute felonies, as defined in 18 U.S.C. § 3559 (1988). As the

respondent has been convicted of a crime punishable as a felony under

the Controlled Substances Act, he has been convicted of a drug

trafficking crime as defined by 18 U.S.C. § 924(c)(2) (1988). Corres-

2Section 501(a)(2) of the Immigration Act of 1990 amended section 101(a)(43) of the

Act to include as an aggravated felony “‘any illicit trafficking in any controlled substance

(as defined in section 102 of the Controlled Substances Act) ....” 104 Stat. at 5048.

The amendments also made clear that the term “aggravated felony” applied to offenses

“whether in violation of Federal or State law.” Section 501(a)(5) of the Immigration Act

of 1990, 104 Stat. at 5048. The amendments were made effective as if included in the

enactment of section 7342 of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

102 Stat. 4181. 4469-70. See section 50-1(b) of the Immigration Act of 1990, 104 Stat. at

5048. Section 7342 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4469-70, which first

added the definition of an aggravated felony as provided in section 101(a)(43) of the Act,

was enacted on November 18, 1988.

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pondingly, he has been convicted of an aggravated felony within the

meaning of section 101(a)(43) of the Act. He therefore has been

convicted of a particularly serious crime for purposes of section

243(h)(2)(B) of the Act and 8 C.F.R. § 208.16(c)(2)(ii) (1991), and is

thus ineligible for withholding of deportation.

Given Congress’ legislative directive that aggravated felonies, and,

correspondingly, drug trafficking crimes, are to be viewed per se as

particularly scrious crimes, we find that in interpreting the term

“particularly serious crime” in the regulatory bar to asylum found in 8

C.F.R. § 208.14(c)(1) (1991), we are constrained to find that any

aggravated felony and, correspondingly, any drug trafficking crime per

se constitutes a particularly serious crime, without any further inquiry

into the nature and circumstances of the crime. The amendment itself

may have directly concerned eligibility for withholding of deportation

under section 243(h)(2)(B) of the Act, but it cannot be ignored in

interpreting 8 C.F.R. § 208.14(c)(1) (1991) that, in Congress’ judgment, aggravated felonies or drug trafficking crimes by their very

nature constitute particularly serious crimes. In view of the newly

enacted legislation, we find that the court’s ruling in Beltran-Zavatla y.

INS, supra, no longer remains applicable.

As noted above, the respondent filed his applications for asylum

and withholding of deportation on November 14, 1990, before the

Immigration Act of 1990 and its amendment to section 243(h)(2)(B)

were enacted. The 1990 Act is silent as to the effective date of this

amendment. In the absence of an express provision to the contrary, an

act of Congress takes effect on the date of its enactment. Matthews y.

Zane, 20 U.S. (7 Wheat.) 164 (1822); Arnold v. United States, 13 US.

(9 Cranch) 103 (1815); United States v. Gavrilovic, 551 F.2d 1099 (8th

Cir. 1977); United States v. Casson, 434 F.2d 415 (D.C. Cir. 1970).

The Board therefore finds the effective date of the amendment to be

the date of the enactment of the 1990 Act, which is November 29,

1990.

Accordingly, we will apply the law existing at the time of our review

and determination regarding the respondent’s eligibility for relief. An

application for relief from deportation is an ongoing application and

the law to be applied to that application is that existing at the time the

final administrative decision is made.? Where new statutory provisions

affecting eligibility for relief from deportation come into effect during

3In deportation proceedings, a final administrative decision does not exist until the

Board renders its decision in the case on appeal or certification, or, where no appeal to

the Board is taken, when the right to appeal is waived, or the time allotted for appeal has

expired. See Matter of Lok, 18 1&N Dec. 101 (BIA 1981), affd, 681 F.2d 107 (2d Cir.

1982).

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the pendency of a deportation hearing or an administrative appeal to

this Board, and there exists no statutory directive to the contrary, as is

true in the case before us, the new statutory provisions shall be applied

to the application for relief before us, and the application may be

denied on the basis of the statutory amendment. See Fassilis v.

Esperdy, 301 F.2d 429 (2d Cir. 1962); Matter of Fong, 10 I&N Dec.

210 (BIA 1963). The amendment is not being given any retroactive

application because the respondent is still the subject of administrative

adjudication and has thus not established any right to the benefit he is

seeking to obtain by his application. See id. When a law is changed

before a decision is handed down by an administrative agency, the

agency must apply the new law. See Ziffrin v. United States, 318 US.

73 (1943); Talanoa y. INS, 397 F.2d 196 (9th Cir. 1968); Patsis v. INS,

337 F.2d 733 (8th Cir. 1964), cert. denied, 380 U.S. 952 (1965); Matter

of George and Lopez-Alvarez, 11 I&N Dec. 419 (BIA 1965). Thus, the

Board may properly apply the amended version of section 243(h) of

the Act. De Lucia v. INS, 370 F.2d 305, 309 n.6 (7th Cir. 1966), cert.

denied, 386 U.S. 912 (1967).

In sum, Congress’ determination that aggravated felonies and,

correspondingly, drug trafficking crimes, are per se particularly serious

crimes applies to the respondent’s applications for asylum and

withholding of deportation. The respondent asserts on appeal that, in

view of the equities in his favor, he should be granted relief as a matter

of discretion. However, as an alien convicted of a particularly serious

crime, he is by operation of law ineligible for asylum pursuant to 8

C.F.R. § 208.14(c)(1) (1991), and ineligible for withholding of deportation under section 243(h)(2)(B) of the Act and 8 C.F.R.

§ 208.16(c)(2)(ii) (1991).

On appeal, the respondent contends that an alleged delay in

instituting his deportation proceedings violated sections 242(a) and (i)

of the Act, 8 U.S.C. § 1252(a) and (i) (1988). The short answer to this

contention is that the decision to institute deportation proceedings

involves the exercise of prosecutorial discretion and is one which

neither the immigration judge nor this Board reviews. Matter of

Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980); Matter of Marin, 16

I&N Dec. 581 (BIA 1978); Matter of Geronimo, 13 I&N Dec. 680 (BIA

1971). Additionally, section 242(a), by its own terms, only grants to a

“court of competent jurisdiction” in habeas corpus proceedings

authority to review or revise any determination of the Attorney

General concerning detention, release on bond, or parole pending a

final decision of deportability upon a conclusive showing that the

Attorncy General is not proceeding with such reasonable dispatch as

may be warranted by the particular facts and circumstances in the case

of any alien to determine deportability. The Board is not the proper

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forum for such review, which, in any event, is applicable only where

proceedings have been commenced and only concerns the propriety of

determinations regarding detention, bond, or parole. Section 242(i)

provides: “In the case of an alien who is convicted of an offense which

makes the alien subject to deportation, the Attorney Gencral shall

begin any deportation proceeding as expeditiously as possible after the

date of the conviction.” However, an incarcerated alien does not have

a private cause of action under section 242(i), as the statute is

concerned, not with aiding criminal aliens, but with interrupting the

flow of narcotics into the United States by illegal aliens and with

overcrowding of prisons. Prieto v. Gluch, 913 F.2d 1159 (6th Cir.

1990); see also Orozco v. INS, 911 F.2d 539 (11th Cir. 1990); Gonzalez

y. INS, 867 F.2d 1108 (8th Cir. 1989).

The respondent also contends on appeal that the use of his criminal

convictions to order his deportation constitutes double punishment for

a single crime and, accordingly. violates the constitutional protection

against double jeopardy. However, his order of deportation has been

properly issued pursuant to the immigration laws and regulations. It is

not within the province of the Board to pass upon the constitutionality

of the statutes it administers. Matter of Cenatice, 16 1&N Dec. 162

(BIA 1977). Moreover, the respondent’s argument has been consistently rejected by the cuurts. See LeTourneur v. INS, 538 F.2d 1368 (9th

Cir.), cert. denied, 429 U.S. 1044 (1976); Oliver y. United States Dept.

of Justice, 517 F.2d 426 (2d Cir. 1975), cert. denied, 423 U.S. 1056

(1976). Deportation from the United States has never been regarded as

criminal punishment. Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v.

Adams, 228 U.S. 585 (1913). It is civil in nature and therefore the

procedural safeguards prescribed for criminal cases are not applicable.

Carlson v. Landon, 342 U.S. 524 (1952); Bilokumsky v. Tod, 203 US.

149 (1923); Chavez-Raya v. INS, 519 F.2d 397 (7th Cir. 1975); see also

Matter of Valdovinos, 18 1&N Dec. 343 (BIA 1982). Although the

respondent has raised additional arguments on appeal in a supplemental brief, our review demonstrates that they are without merit and do

not warrant further discussion.

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

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