Interim Decision #3386

Interim Decision #3386

In re L-S-, Respondent

Decided April 16, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. §

1231(b)(3)(B)(ii) (Supp. II 1996), a determination whether an alien convicted of an aggravated felony and sentenced to less than 5 years’ imprisonment has been convicted of a “particularly serious crime,” thus barring the alien from withholding of removal, requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. Matter of S-S-, 22 I&N Dec. 3374 (BIA 1999);

and Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), followed.

(2) An alien who was convicted of bringing an illegal alien into the United States in violation

of section 274(a)(2)(B)(iii) of the Act, 8 U.S.C. § 1324(a)(2)(B)(iii) (1994 & Supp. II 1996),

and sentenced to 31/2 months’ imprisonment has, upon consideration of the nature of the conviction and the sentence imposed, as well as the underlying facts and circumstances of the

conviction, not been convicted of a “particularly serious crime” and is eligible to apply for

withholding of removal under section 241(b)(3)(B)(ii) of the Act.

Rudy Cardenas, Jr., Esquire, El Centro, California, for respondent

Daniel Gershator, Assistant District Counsel, for the Immigration and Naturalization Service

Before:

Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HOLMES,

VILLAGELIU, FILPPU, ROSENBERG, GUENDELSBERGER, GRANT, and

SCIALABBA, Board Members. Dissenting Opinion: COLE, Board Member,

joined by VACCA, HEILMAN, HURWITZ, MATHON, and JONES, Board

Members.

GRANT, Board Member:

The respondent has timely appealed from the Immigration Judge’s

decision of August 11, 1997, finding him removable and ineligible for

relief. The respondent’s request to prosecute his appeal without prepayment of the appropriate fee is granted. See 8 C.F.R. § 3.8(c) (1998). The

appeal will be sustained and the record will be remanded for further proceedings.

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I. FACTS

The respondent is a 36-year-old citizen of Laos. He entered the United

States at age 17 as a refugee. On May 5, 1997, the respondent was convicted of bringing an illegal alien into the United States in violation of section

274(a)(2)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. §

1324(a)(2)(B)(iii) (1994 & Supp. II 1996). On June 9, 1997, the respondent

was sentenced to time served, which had been approximately 31/2 months.

Based on his conviction, the Immigration and Naturalization Service

charged the respondent with inadmissibility pursuant to section

212(a)(6)(E)(i) of the Act, 8 U.S.C. § 1182(a)(6)(E)(i) (Supp. II 1996), as

an alien who had encouraged, induced, assisted, abetted, or aided an alien

to enter the United States in violation of law. The Immigration Judge found

the respondent removable as charged and ineligible for all forms of relief.

On appeal, the respondent argues that the Service did not establish that

he committed a removable offense; that the Service failed to establish that

he knowingly assisted in the illegal entry; that he should have had an opportunity to apply for cancellation of removal; that after 20 years as a lawful

permanent resident, one conviction leading to 31/2 months in jail should not

result in his removal; that his crime is not an aggravated felony; that he

established eligibility for withholding of removal; and that he should have

been put in exclusion proceedings rather than removal proceedings.

II. ISSUE

The principal issue in this case is whether the respondent’s conviction

for bringing an illegal alien into the United States in violation of section

274(a)(2)(B)(iii) of the Act, an aggravated felony for which he was sentenced to 31/2 months’ imprisonment, constitutes a particularly serious crime

such that the respondent is excepted from consideration for withholding of

removal under section 241(b)(3)(B)(ii) of the Act, 8 U.S.C. §

1231(b)(3)(B)(ii) (Supp. II 1996).1

III. PRELIMINARY MATTERS

The respondent was properly charged with inadmissibility and not

deportability. Generally, an alien lawfully admitted for permanent residence

Although the Immigration Judge evaluated the respondent’s eligibility for withholding

of deportation, the comparable relief that is available in removal proceedings is termed withholding of removal. See 8 C.F.R. § 208.16 (1998).

1

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in the United States is not to be regarded as seeking admission and thus

would be subject to the deportation grounds of section 237 of the Act, 8

U.S.C. § 1227 (Supp. II 1996), rather than the provisions of section 212(a).

See section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (Supp. II

1996). As this Board discussed in Matter of Collado, 21 I&N Dec. 1061

(BIA 1997, 1998), however, section 101(a)(13)(C) of the Act specifically

addresses the treatment of lawful permanent residents who are described in

sections 101(a)(13)(C)(i)-(vi) of the Act. Such aliens are excepted from the

general class of lawful permanent resident aliens who are not regarded as

seeking admission to the United States. The respondent was convicted of

bringing an undocumented alien into the United States. Thus, he engaged in

illegal activity after having departed the United States and is properly

charged with inadmissibility. Section 101(a)(13)(C)(iii) of the Act.

We do not find that the respondent should have been put in exclusion

proceedings rather than removal proceedings. Congress established removal

proceedings in section 304(a) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,

110 Stat. 3009-546, 3009-587 (“IIRIRA”). Those proceedings apply to

cases which are initiated after April 1, 1997. IIRIRA § 309, 110 Stat. at

3009-625. The respondent was served with his Notice to Appear (Form I862) on June 12, 1997. Thus, he is properly in removal proceedings.

Regarding the respondent’s argument that he does not believe the

Service has established that he knowingly assisted in the illegal entry, we

find that no such analysis is necessary to reach the conclusion that the

respondent is inadmissible. The respondent’s conviction for bringing an

illegal alien into the United States in violation of section 274(a) of the Act

renders him inadmissible under section 212(a)(6)(E) of the Act and he is

therefore removable.2 We do not review the underlying circumstances of a

conviction to reassess whether the conviction was appropriate. A conviction

is final for immigration purposes unless and until the conviction has been

overturned. See Matter of Gabryelsky, 20 I&N Dec. 750, 751-52 (BIA

1993); see also Aguilera-Enriquez v. INS, 516 F.2d 565, 571 (6th Cir. 1975),

cert. denied, 423 U.S. 1050 (1976).

The crime of bringing illegal aliens into the United States in violation

of section 274(a) of the Act is an aggravated felony. See section

101(a)(43)(N) of the Act. Section 101(a)(43)(N) of the Act provides that an

aggravated felony includes

an offense described in paragraph (1)(A) or (2) of section 274(a) (relating to alien

smuggling), except in the case of a first offense for which the alien has affirmatively

shown that the alien committed the offense for the purpose of assisting, abetting, or

2

Although the Immigration Judge cited the wrong ground in his decision, he applied the

proper ground.

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aiding only the alien’s spouse, child, or parent (and no other individual) to violate a

provision of this Act.

See Matter of Ruiz, 22 I&N Dec. 3376 (BIA 1999). The respondent was

convicted pursuant to section 274(a)(2)(B)(iii) of the Act and there is no

evidence that he committed the offense to aid a spouse, child, or parent.

IV. ANALYSIS OF PARTICULARLY SERIOUS CRIME EXCEPTION

The respondent has been convicted under section 274(a)(2)(B)(iii) of

the Act of the crime of bringing an illegal alien into the United States. There

is no doubt of the seriousness of this offense under our immigration laws.

As a consequence of this single conviction, the respondent is inadmissible

to the United States under section 212(a)(6)(E)(i) of the Act and will be

ineligible to be readmitted to the United States at any time if he is ordered

removed. See section 212(a)(9)(A) of the Act. The respondent is also ineligible to apply for asylum. Sections 208(b)(2)(A)(ii), (B)(i) of the Act, 8

U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i) (Supp. II 1996). As an alien convicted

of an aggravated felony, the respondent is not eligible for cancellation of

removal under section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3) (Supp.

II 1996). He is also precluded from applying for that relief under section

240A(b)(1)(B) because he cannot establish good moral character during the

10 years prior to application for relief.3 Furthermore, the respondent is ineligible for voluntary departure under section 240B(b)(1)(C) of the Act, 8

U.S.C. § 1229c(b)(1)(C) (Supp. II 1996), and for a waiver of inadmissibility under section 212(h).

The issue before us, therefore, is not whether this crime is serious or

whether it should result in severe restrictions on the respondent’s ability to

obtain benefits under our immigration laws. Those issues have been settled.

The sole issue before us, rather, is whether this single conviction, with a

sentence imposed of 31/2 months, should be classified as a “particularly serious crime” under section 241(b)(3)(B) of the Act and thus disqualify the

respondent from seeking to establish that, were he deported to Laos, it is

more likely than not that his life or freedom would be threatened on account

of his race, religion, nationality, political opinion, or membership in a particular social group. Section 241(b)(3)(A) of the Act; INS v. CardozaFonseca, 480 U.S. 421 (1987).

Our judgment in this regard is discretionary. Matter of S-S-, 22 I&N

Dec. 3374 (BIA 1999). In 1996 Congress amended section 241(b)(3)(B) of

3

An alien who has been convicted of an aggravated felony cannot establish good moral

character. See section 101(f)(8) of the Act, 8 U.S.C. § 1101(f)(8) (1994).

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the Act to provide that a conviction for an aggravated felony is a “particularly serious crime” if a sentence of 5 years or more has been imposed. IIRIRA § 305(a), 110 Stat. at 3009-602. Congress also provided that this did not

prohibit the Attorney General from designating other crimes not meeting

these criteria as particularly serious crimes.4 We have recently decided that

in exercising this discretionary authority, we will apply the analysis set forth

in Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), modified, Matter of

C-, 20 I&N Dec. 529 (BIA 1992), Matter of Gonzalez, 19 I&N Dec. 682

(BIA 1988). Matter of S-S-, supra. Applying those standards to the facts of

this case, we have determined that the respondent’s conviction is not a conviction for a particularly serious crime, and that the case should be remanded to give the respondent an opportunity to apply for relief under section

241(b)(3).

A. Previous Statutory Framework for Withholding of Deportation

The statutory provision for withholding of deportation was found at

section 243(h) of the Act, 8 U.S.C. § 1253(h) (1994).5 When Congress

enacted the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, it

amended this provision to provide that withholding should be denied to an

alien who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” See

section 243(h)(2)(B) of the Act.

The Board addressed the question of what would be a “particularly serious crime” in Matter of Frentescu, supra. See also Matter of Gonzalez,

supra, modified, Matter of C-, supra. In Matter of Frentescu, the Board held

that in 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 respondent is a danger

to the community. Matter of Frentescu, supra, at 247. Further, we stated that

crimes against persons are more likely to be categorized as particularly serious, but that there may be instances where crimes against property will be

considered to be particularly serious. Id. It was subsequently established

4

The final paragraph of section 241(b)(3)(B) states the following:

[A]n alien who has been convicted of an aggravated felony (or felonies) for which the

alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall

be considered to have committed a particularly serious crime. The previous sentence

shall not preclude the Attorney General from determining that, notwithstanding the

length of sentence imposed, an alien has been convicted of a particularly serious crime.

5

A more detailed history of withholding of deportation pursuant to section 243(h) of the

Act is set forth in Matter of Q-T-M-T-, 21 I&N Dec. 639, at 645-47 (BIA 1996).

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that once an alien is found to have committed a particularly serious crime,

there is no need for a separate determination to address whether the alien is

a danger to the community. See Matter of K-, 20 I&N Dec. 418 (BIA 1991),

aff’d, Kofa v. INS, 60 F.3d 1084 (4th Cir. 1995); see also Matter of Q-T-MT-, 21 I&N Dec. 639, at 646 (BIA 1996). The Board also determined that

certain crimes could be considered per se particularly serious, and therefore, once the conviction was established, there was no need to proceed to

an individualized examination of the crime. See Matter of Frentescu, supra,

at 247; see also Hamama v. INS, 78 F.3d 233, 240 (6th Cir. 1996) (recognizing the Board’s practice of finding that some crimes are inherently particularly serious); Ahmetovic v. INS, 62 F.3d 48, 52 (2d Cir. 1995) (upholding a Board decision which found that first degree manslaughter was an

inherently particularly serious crime).

Congress amended section 243(h)(2) of the Act through the

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

that aggravated felonies are to be considered particularly serious crimes for

the purpose of section 243(h)(2). See generally Matter of A-A-, 20 I&N

Dec. 492 (BIA 1992). This amendment eliminated the need for an individual analysis of the underlying facts and circumstances in any case in which

the conviction was for an aggravated felony. See Matter of C-, supra (modifying Matter of Frentescu and its progeny in light of statutory amendment).

The next major change in the withholding law occurred with the passage of section 413(f) of the Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1269 (enacted Apr. 24, 1996)

(“AEDPA”). Section 413(f) of the AEDPA amended section 243(h) of the

Act to provide the Attorney General discretionary authority to override the

categorical bar designating every aggravated felony a particularly serious

crime, if she determined it “is necessary to ensure compliance with the 1967

United Nations Protocol Relating to the Status of Refugees.” The Board

considered the effects of this provision on the aggravated felony bar in

Matter of Q-T-M-T-, supra. We concluded that an alien who has been convicted of an aggravated felony or felonies and sentenced to at least 5 years

of incarceration was conclusively barred from withholding of deportation.

However, an alien who was convicted of an aggravated felony or felonies

and sentenced to an aggregate of fewer than 5 years of incarceration would

be subject to a rebuttable presumption that he or she had been convicted of

a particularly serious crime, which would bar eligibility from withholding.

The holding in Matter of Q-T-M-T-, supra, continues to apply to cases initiated before April 1, 1997, which are not controlled by the IIRIRA.

B. Statutory and Analytic Framework for Withholding of Removal

Congress’s most recent revision of the “particularly serious crime”

clause in the IIRIRA accomplished what section 413(f) of the AEDPA had

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not: it eliminated the categorical exception to withholding of removal for

any alien convicted of an aggravated felony. Conviction of an aggravated

felony no longer renders the conviction a “particularly serious crime” per

se. See Matter of S-S-, supra.

In Matter of S-S-, we unanimously held that there is no statutory basis

to apply the “rebuttable presumption” analysis of Matter of Q-T-M-T in proceedings under the new section 240 of the Act. “Congress neither imposed

any presumption that an aggravated felony carrying a sentence of fewer

than 5 years is a particularly serious crime, nor called for any blanket exercise of the Attorney General’s authority to determine the applicability of

section 241(b)(3)(B)(ii) of the Act in such cases.” Matter of S-S-, supra, at

8. Furthermore, in the absence of a rule that every conviction under a certain category of crimes constitutes a particularly serious crime, consideration of the individual facts and circumstances is appropriate.6 In place of a

“per se” or “presumption” analysis, Matter of S-S- applied the analysis set

forth in Matter of Frentescu, supra, to evaluate whether a crime is “particularly serious.” We will therefore employ Frentescu in cases, such as this

one, where a determination must be made as to the nature of the crime for

the purpose of applying the exception in section 241(b)(3)(B)(ii) of the Act.7

This inquiry does not involve an examination of the respondent’s family or

community ties, or the risk of persecution in the alien’s native county. See

Ramirez-Ramos v. INS, 814 F.2d 1394, 1397-98 (9th Cir. 1987). To make

this determination, we look to the conviction records and sentencing information. See Matter of Q-T-M-T-, supra, at 20. Further, we do not engage in

a retrial of the alien’s criminal case or go behind the record of conviction to

redetermine the alien’s innocence or guilt. Id.; cf. Matter of Carballe, 19

I&N Dec. 357, 360-61 (BIA 1986) (noting that background information,

including the circumstances of the crime, need not be admitted where a

crime is designated as inherently particularly serious), modified, Matter of

C-, supra, clarified, Matter of K-, supra, modified on other grounds, Matter

of Gonzales, supra.

In determining that neither a “per se” nor a “presumption” rule is

appropriate in applying the particularly serious crime exception in section

241(b)(3)(B)(ii), we are guided both by clear statements of congressional

intent and by our own assessment of the balance between protecting those

who would be subject to persecution if removed to a particular country, and

protecting the safety of the American public.

We left for another day the question whether, and under what conditions, it might be

appropriate for the Attorney General to exercise discretion to designate certain offenses as

being particularly serious crimes per se.

7

This test would apply to aggravated felonies where the sentence is fewer than 5 years,

as well as to other crimes that do not fall within the aggravated felony definition.

6

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First, in designating those alien criminals excluded from the protection

of asylum and withholding of removal, Congress has drawn a critical distinction in its use of the term “particularly serious crime.” In the context of

asylum, the following per se rule applies: Any alien convicted of a “particularly serious crime” is barred from being granted asylum under section

208(b)(2)(A)(ii) of the Act, and any alien convicted of an aggravated felony

is considered to have been convicted of a “particularly serious crime.”

Section 208(b)(2)(B)(i) of the Act. In the context of relief under section

241(b)(3), however, a different per se rule applies: An alien convicted of an

aggravated felony is considered to have been convicted of a particularly

serious crime only if the alien was sentenced to a term of imprisonment of

5 years or more. Therefore, to adopt in this case a per se rule that any conviction for alien smuggling, regardless of the sentence and underlying circumstances, constitutes a conviction for a “particularly serious crime”

under section 241(b)(3)(B)(ii) would be to annul the deliberate distinction

made by Congress in the IIRIRA. To adopt a “presumption” that such

offenses are particularly serious crimes unless proven otherwise would

merely obscure the distinction and lead to results most often indistinguishable from the application of a flat-out per se rule—most aliens would not be

able to meet the high burden of proof to rebut the presumption that their

aggravated felony conviction is not for a “particularly serious crime.”

Second, Congress deliberately eliminated the statutory presumption

that all aggravated felonies are particularly serious crimes for purposes of

the withholding provision, and that provision only. This is particularly

notable in light of the numerous provisions found in the IIRIRA increasing

the severity of the consequences for aliens convicted of crimes. See, e.g.,

IIRIRA §§ 321(e), 110 Stat. at 3009-627 (codified as section 101(a)(43) of

the Act and expanding the definition of an aggravated felony); 304(b), 110

Stat. at 3009-597 (repealing a provision permitting waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994)); 303, 110

Stat. at 3009-585 (codified as section 236(c) of the Act, which relates to the

mandatory detention of criminal aliens); 301(b), 110 Stat. at 3009-576

(codified as section 212(a)(9)(A)(i) of the Act, which provides that aliens

convicted of an aggravated felony and previously removed under section

235(b)(1) of the Act, 8 U.S.C. § 1225(b)(1) (Supp. II 1996), or at the end of

proceedings under section 240 of the Act, 8 U.S.C. § 1229a (Supp. II 1996),

are permanently inadmissible). The reason for this different approach is

clear: Congress understood that in enacting revised section 241(b)(3), it was

carrying forth the statutory implementation, previously codified in former

section 243(h), of our international treaty obligations. See INS v. CardozaFonseca, 480 U.S. 421, 428-37 (1987).

In 1968, the United States acceded to the 1967 Protocol, agreeing to

apply Articles 2 through 34 of the 1951 Convention regarding the status of

refugees. See United Nations Protocol Relating to the Status of Refugees,

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opened for signature Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606

U.N.T.S. 267 (entered into force Oct. 4, 1967; for United States Nov. 1

1968) (“Protocol”); United Nations Convention Relating to the Status of

Refugees, adopted July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr.

22, 1954) (“Convention”). The Refugee Act of 1980 substituted the mandatory language of the former withholding statute for what was previously a

grant of discretionary authority to the Attorney General to withhold deportation. INS v. Stevic, 467 U.S. 407 (1984). By amending in the IIRIRA the

standards under which this relief may be made available, Congress has further clarified its understanding of our nation’s obligations under the

Protocol. Specifically, Congress has determined that the absolute bars to

many forms of relief now contained in the Act for aliens convicted of an

aggravated felony are not appropriate in the context of withholding relief

because if such bars were so applied, they could threaten our compliance

with the 1967 Protocol.

Third, as we did in Matter of Q-T-M-T-, supra, we take into account our

own analysis of these obligations, as weighed against the interests of protecting the American public. Id. at 19-22. Here, it is important to note that

Congress has left residuary authority with the Attorney General to designate

crimes other than those which meet the per se standard of section

241(b)(3)(B)(ii) as “particularly serious crimes.” The dissent argues that a

broad designation of crimes such as alien smuggling as “particularly serious crimes” is essential to protect the law-abiding public from the dangers

inherent in such crimes. In taking this position, however, the dissent gives

insufficient weight to our obligations under the Protocol, as well as the

other provisions of the Act that send an indisputable message that criminal

activity of this type is not tolerated.

The Act “protects” the public from those convicted of aggravated

felonies in myriad ways already noted in this decision: such aliens are ineligible for asylum, cancellation of removal, reentry after removal, and most

waivers of grounds for removal. A decision to allow such an alien to apply

for withholding of removal under section 241(b)(3) in no way ensures that

the alien will be permitted to remain in the United States; the alien’s burden

of proof for this relief is significantly higher than that for asylum. See INS

v. Cardoza-Fonseca, supra; INS v. Stevic, supra; Matter of Toboso-Alfonso,

20 I&N Dec. 819 (BIA 1990); Matter of Mogharrabi, 19 I&N Dec. 439

(BIA 1987). On a purely statistical basis, most such aliens will, in the end,

be ordered removed. More important, however, is that those who are granted this relief will be protected from the probability of being arrested, tortured, or even killed if returned to their country of origin.

A determination that a crime is “particularly serious” cannot, therefore,

be made in a vacuum. It must take into account that an alien convicted of

such a crime, and therefore excluded from applying for relief under section

241(b)(3), could be an alien who would otherwise meet the burden of proof

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for this relief and thus would be subject to persecution when removed from

the United States. A grant of relief merely prevents removal to the country

where this threat exists; the alien may be removed to another country or, in

the case of changed conditions in the designated country, may see his relief

withdrawn. 8 C.F.R. § 208.22 (1998). Thus, allowing an alien whose

offense does not meet the per se rule of section 241(b)(3)(B)(ii) to merely

apply for withholding of removal will preserve the balance between upholding our international obligations under the Protocol and protecting the safety of the public. Denying that opportunity, on the other hand, poses a serious risk to that balance.

C. Analysis of the Respondent’s Offense as a Particularly

Serious Crime Under Section 241(b)(B)(ii) of the Act

The respondent was convicted, upon a plea of guilty, of bringing an illegal alien into the United States in violation of section 274(a)(2)(B)(iii) of

the Act. That section provides for a fine and imprisonment of not more than

10 years of any person who

knowing or in reckless disregard of the fact that an alien has not received prior official

authorization to come to, enter, or reside in the United States, brings to or attempts to

bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien . . . [if] the alien is not

upon arrival immediately brought and presented to an appropriate immigration officer

at a designated port of entry.

According to the sentence summary chart, the respondent did not have

any prior offenses and received a downward adjustment of his sentence for

acceptance of responsibility. The Government recommended that he receive

time served with 3 years of supervised release, and the sentencing judge

accepted the recommendation. At the time of sentencing on June 9, 1997,

the respondent had served approximately 31/2 months in prison.

The record reflects that on February 17, 1997, the respondent and a

codefendant were attempting to enter the United States through the San

Ysidro port of entry when an immigration officer discovered a hidden compartment built underneath the floor of their van. Upon inspection of the

compartment, the officer discovered a woman in the compartment. When

questioned, the woman stated that she was a Mexican citizen without lawful status to enter or live in the United States. The woman indicated that her

daughter had paid $1,000 to have her smuggled into the United States,

although it is not known whom she paid. According to plan, the Mexican

woman waited at the Tijuana airport until the respondent approached her

and asked for her name. The respondent then led the woman to his van and

instructed her to ride inside the hidden compartment.

Alien smuggling is a persistent and serious problem in the United

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States. The act of smuggling can put aliens in significant danger, and in certain circumstances evidently not present here, it can also endanger the lives

of United States residents. The Immigration and Nationality Act designates

alien smuggling as both an aggravated felony and a crime for which a first

offense can lead to 10 years of imprisonment. We consider that length of

imprisonment to be significant and indicative of the seriousness with which

Congress regards alien smuggling.

We note, however, that the provisions under which this respondent was

convicted and sentenced do not require proof of any endangerment, harm,

or intended harm. To be convicted under section 274(a)(2)(B)(iii), the

defendant only needs to bring an alien into the United States. The intent of

the defendant and whether his or her purpose is lawful or unlawful is not

relevant to the question of guilt. Had serious bodily injury, jeopardy to

human life, or an actual death been involved in this case however, the

respondent would have been subject to sentencing under the provisions of

sections 274(a)(1)(B)(iii) or (iv) of the Act, which provide for significantly

enhanced penalties.

We are aware that the respondent entered into the smuggling activity

for the purpose of commercial gain. Prior to the enactment of the IIRIRA,

the aggravated felony definition included only those smuggling offenses

under section 274(a)(1) that were committed “for the purpose of commercial advantage.” Section 101(a)(43)(N) of the Act, 8 U.S.C. §

1101(a)(43)(N) (1994). This component of the definition was removed by

the IIRIRA, however, so we do not find that the commercial gain aspect of

this case is dispositive. It is, rather, one of the factors to consider.

Furthermore, we have previously discussed the nature of the crime of

smuggling aliens for gain in the context of deciding whether that offense is

a crime involving moral turpitude. Matter of Tiwari, 19 I&N Dec. 875 (BIA

1989). In Matter of Tiwari, we considered whether alien smuggling for gain

is committed with “fraud or evil intent.” A review of precedent cases

revealed that persons convicted under former section 274(a) for bringing

aliens into the United States or for transporting them within the country had

been motivated by love, charity, or kindness or by religious principles. Id.

(citing United States v. Merkt, 794 F.2d 950 (5th Cir. 1986), cert. denied,

480 U.S. 946 (1987); Gallegos v. Hoy, 262 F.2d 665 (9th Cir. 1958), cert.

denied, 360 U.S. 935 (1959)). We could not conclude that the entire class

of persons convicted under former section 274(a) acted with evil intent or

fraud. Our decision in Tiwari that a conviction under section 274(a) is not

necessarily a conviction for a crime involving moral turpitude should lead

us to exercise great caution in designating such an offense as a particularly

serious crime for purposes of section 241(b)(3)(B)(ii).

The sentence imposed in this case—time served, amounting to 31/2

months in prison—further influences our decision that the conviction in the

respondent’s case is not a particularly serious crime. We also find it signif655

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icant that there is no indication the respondent intended to harm the smuggled alien. Although the use of the hidden compartment did pose a risk to

the alien, particularly in the event of a vehicular accident, the respondent

did not, in fact, cause her harm. Furthermore, the lone alien smuggled in

this case was neither kidnaped nor brought into the United States as part of

an organized criminal enterprise to work illegally in substandard conditions. Rather, she made the arrangements with her family and willingly

undertook the trip for purposes of family unification. While the owner of the

van may have intended to bring other aliens into the country through the use

of his “hidden compartment,” the respondent did not own the van and only

was hired to drive it on this one occasion. The record demonstrates that this

was his first offense.

In sum, we find that the nature of the offense, the length of the sentence

imposed on the respondent, and the circumstances under which this particular crime occurred do not support the conclusion that the respondent was

convicted under section 274(a)(2)(B)(iii) of the Act of a particularly serious

crime within the meaning of section 241(b)(3)(B)(ii). See Matter of

Frentescu, supra. The respondent is therefore eligible to present evidence

that he has a clear probability of future persecution pursuant to section

241(b)(3). We emphasize that we reach this conclusion based on the nature

and circumstances of this respondent’s conviction. We also note that this

decision does not confer any form of relief on the respondent; it merely permits him to apply for relief.

V. CONCLUSION

The respondent’s alien smuggling offense is not a particularly serious

crime within the meaning of section 241(b)(3)(B)(ii) of the Act.

Accordingly, his appeal will be sustained and the record will be remanded

to the Immigration Judge to permit the respondent to apply for withholding

of removal.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with this opinion and for the entry

of a new decision.

Board Member Anthony C. Moscato did not participate in the decision in

this case.

DISSENTING OPINION: Patricia A. Cole, Board Member, in which Fred

W. Vacca, Michael J. Heilman, Gerald S. Hurwitz, Lauren R. Mathon, and

Philemina M. Jones, Board Members, joined

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I respectfully dissent. I dissent only from the majority’s finding that the

crime of which the respondent was convicted, bringing an illegal alien into

the United States in violation of section 274(a)(2)(B)(iii) of the

Immigration and Nationality Act, 8 U.S.C. § 1324(a)(2)(B)(iii) (1994 &

Supp. II 1996), does not constitute a particularly serious crime pursuant to

section 241(b)(3)(B)(ii) of the Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (Supp. II

1996). I would find the nature and circumstances of this crime to constitute

a particularly serious crime within the meaning of section 241(b)(3)(B)(ii)

of the Act.

I would apply the same analytical framework as the majority and look

to the nature of the conviction, the circumstances and underlying facts of

the conviction, the type of sentence imposed, and whether the type and

circumstances of the crime indicate that the respondent is a danger to the

community. See Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), modified, Matter of C-, 20 I&N Dec. 529 (BIA 1992), Matter of Gonzalez, 19

I&N Dec. 682 (BIA 1988); see also Matter of S-S-, 22 I&N Dec. 3374

(BIA 1999). I also emphasize that I am not making a finding that all convictions for bringing illegal aliens into the United States are per se particularly serious crimes. I dissent only from the result reached by the majority in this case.

The majority’s analysis recognizes the serious nature of the crime. The

respondent was convicted of bringing an alien into the United States “knowing or in reckless disregard of the fact that an alien has not received prior

official authorization to come to, enter, or reside in the United States.”

Section 274(a)(2) of the Act. The majority also acknowledges the immigration consequences that Congress mandates for an aggravated felony conviction. The respondent is removable from the United States and the respondent’s conviction is a statutory bar to most forms of relief from removal,

i.e., cancellation of removal, asylum, and voluntary departure, and the

respondent is ineligible for readmission to the United States and for a waiver of inadmissibility. I agree with the majority that alien smuggling is a persistent and serious problem faced by the United States. The United States

expends tremendous resources to combat alien smuggling. Smuggling operations cause untold misery to the population in the form of high-speed chases, high-risk crossings that lead to injury and in extreme cases death, and

high crime along the border areas.

The nature of this smuggling crime requires the specific intent that

the defendant knew the alien being smuggled had not received prior official authorization to enter the United States. The statute authorizes

imprisonment for a violation of this section of up to 10 years. This is a

significant period of time; it signals Congress’ intent to treat alien smuggling as a serious crime. I note further that Congress designated this

offense an aggravated felony regardless of the sentence imposed. See sec657

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tion 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996).

The majority’s reliance on Matter of Tiwari, 19 I&N Dec. 875 (BIA

1989), is misplaced. In that decision we found only that we could not conclude that the entire class of persons convicted under former section 274(a)

acted with evil intent or fraud. Therefore, a conviction for alien smuggling

would not render the alien deportable under section 241(a)(4) of the Act, 8

U.S.C. § 1251(a)(4) (1988), as an alien convicted of a crime involving

moral turpitude. However, we noted that aliens who have smuggled other

aliens “for gain” would arguably be deportable as aliens “convicted of

crimes involving moral turpitude.” Our analysis under Matter of Frentescu

permits scrutiny of each crime and would permit consideration of whether

an alien is motivated by commercial gain and fraud, as here, or by love,

charity, kindness, or religious principles, as distinguished in Tiwari.

The circumstances of this crime highlight some of the troubling aspects

of alien smuggling. The respondent’s testimony demonstrates that he was

part of an organized smuggling operation. This respondent was paid to

bring the undocumented woman into the United States. He did not know the

woman in the van. He brought the alien in using a van especially outfitted

for the journey. The woman was kept in a small, confined compartment

slung underneath the van. She was shut in that dark, confined space with no

idea of how long she would have to stay there without fresh air, water, or

food. Due to the makeshift aspect of the compartment and its location on

the floor of the van, this woman was at a heightened risk of asphyxiation or

injury in the event of an accident brought about by a traffic collision or by

a flight from authorities.

I am not swayed by the argument that the driver did not intend to harm

the alien and she was not harmed. If bodily injury, jeopardy to life, or actual death occurred, the respondent would have been subject to enhanced sentencing penalties. In fact, had actual harm occurred, the respondent likely

would have been charged with another offense. While I agree that the provision under which the respondent was convicted does not require proof of

any endangerment, harm, or intended harm, the nature and circumstances of

this crime that the respondent committed placed the smuggled woman’s life

in danger. Although the respondent testified that this was his first time

engaging in smuggling activity, we agree with the Immigration Judge that

the respondent’s credibility in this regard was called into question when he

equivocated about whether he knew that his actions were illegal at the time

he performed them.8

While the sentence actually imposed, 31/2 months, time served, was not

The respondent conceded that the act was very serious and said that he did not know

what the term “smuggling” meant until he got caught. He said that he knew the smuggling

was illegal when he did it.

8

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significant, the commercial aspect, the ties to an organized group, and the

inherent dangers raise this crime to the level of a particularly serious crime.

In revising section 243(h)(2) of the Act, 8 U.S.C. § 1253(h) (1994),

Congress specifically reserved authority for the Attorney General to designate crimes with an aggregate term of imprisonment of less than 5 years to

be particularly serious crimes. I would find that this is one instance where

that authority should be exercised.

659