Interim Decision #3163

Interim Decision #3163

MATTER OF

In Deportation Proceedings

A-29690266

Decided by Board November 5, 1991

The language of section 515(a)(2) of the Immigration Act of 1990, Pub. L. No. 101649, 104 Stat. 4978, 5053 (enacted Nov. 29, 1990), amending section 243(h)(2) of the

Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1988), expressly states that an

alien convicted of an aggravated felony shall be considered to have committed a

"particularly serious crime" for purposes of section 243(h)(2)(B), thereby obviating the

need for a case-by-case determination of this question, but does not alter the conclusion

in Matter of Carballe, 19 I&N Dec. 357 (BIA 1986), modified on other grounds, Matter of

Gonzalez, ig 1&N Dec_ 682 (BIA 1988), that under section 243(h)(2)(B) all aliens

convicted of "particularly serious crimes" necessarily constitute a "danger to the

community." Matter of U-M-, 20 I&N Dec. 327 (BIA 1991), affil, 989 F.2d 1085 (9th

Cir. 1993); Matter of Gonzalez, supra; Matter of Garcia Garrocho, 19 I&N Dec. 423 (BIA

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I Q86), modified on other grounds. Matter of Gonzalez. supra; and Matter of Carballe,

supra, clarified.

CHARGE:

Order: Act of 1952—Sec. 241(a)( I) [8 U.S.0 § 1251(a)(1)]—Excludable at entry under

section 212(a)(20) [8 U.S.C. § 1182(a)(20)]—No valid immigrant visa

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

substance violation

Sec. 241(a)(4)(B) [8 U.S.C. § 1251(a)(4)(B)]—Convicted of aggravated felony

ON BEHALF OF RESPONDENT:

Margaret Gleason, Esquire

Catholic Legal Immigration Network

1221 Massachusetts Avenue, N.W.

Washington, D.C. 20005

BY:

ON BEHALF OF SERVICE:

James Reynolds

Acting Appellate Counsel

Janice B. Podolny

District Counsel

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

On April 26, 1991, the immigratinn judge found that the respondent, an alien convicted of two aggravated felonies, was barred from

applying for asylum under section 208(a) of the Immigration and

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Interim Decision #3163

Nationality Act, 8 U.S.C. § 1158(a) (1988). The immigration judge

further concluded that although the respondent was deemed to have

committed a "particularly serious crime" for purposes of section

243(h)(2)(B) of the Act, 8 U.S.C. § 1253(h)(2)(B) (1988), as a result of

his convictions, he would nevertheless be eligible to pursue withholding of deportation under section 243(h) of the Act if he could show that

he does not "constitute[] a danger, to the community of the United

States" within the meaning of section 243(h)(2)(B) of the Act. The

immigration judge set a hearing for May 10, 1991, to determine

whether the respondent constitutes a danger to the community. On

May 3, 1991, the Board denied a request by the Immigration and

Naturalization Service for a stay of the proposed hearing, and the

evidentiary hearing was held as scheduled. On June 4, 1991, the

immigration judge issued a decision finding that the respondent was

no longer a danger to the community within the meaning of section

243(h)(2)(B) of the Act and therefore was entitled to be heard on his

application for withholding of deportation to Liberia. The immigration judge scheduled a hearing for July 2, 1991, for adjudication of the

merits of the persecution claim. On June 11, 1991, the Service filed

this interlocutory appeal of the immigration judge's decision and

sought a stay of the proceedings. The Service also filed a motion to

reconsider with the immigration judge and requested a stay of the

proceedings based on Matter of U-M-, 20 I&N Dec. 327 (BIA 1991),

Ord, 989 F.2d 1085 (9th Cir. 1993), which was issued by the Board on

June 5, 1991, the day after the immigration judge's decision. On June

14, 1991, the immigration judge denied the Service's motion for

reconsideration and a stay of proceedings. On June 18, 1991, the

respondent requested permission to "join" in the Service's interlocutory appeal. On June 28, 1991, the Board granted a stay of the

proceedings and subsequently heard oral argument on August 1, 1991.

The Service's interlocutory appeal will be considered and sustained,

and the record will be remanded to the immigration judge.

In order to avoid the piecemeal review of the many questions which

may arise in a deportation proceeding, this Board does not ordinarily

entertain interlocutory appeals. See Matter of Ruiz Campuzarto, 17

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I&N Dec. 108 (BIA 1979); Matter of Ku, 15 I&N Dec. 712 (BIA 1976);

Matter of Sacco, 15 I&N Dec. 109 (BIA 1974). We have on occasion

ruled on the merits of interlocutory appeals where we deemed it

necessary to address important jurisdictional questions regarding the

administration of the immigration laws, or to correct recurring

problems in the handling of cases by immigration judges. See Matter of

Guevara, 20 I&N Dec. 238 (BIA 1990, 1991); Matter of Garcia Reyes,

19 I&N Dec. 830 (BIA 1988); Matter of Rosales, 19 I&N Dec. 655

(BIA 1988); Matter of Amico, 19 I&N Dec. 652 (BIA 1988); Matter of

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Correa, 19 I8EN Dec. 130 (BIA 1984); Matter of Victorino, 18 I&N

Dec. 259 (BIA 1982); Matter of Alphonse, 18 I&N Dec. 178 (BIA

1981); Matter of Wadas, 17 I&N Dec. 346 (BIA 1980); Matter of Seren,

15 I&N Dec. 590 (BIA 1976); Matter of Fong, 14 I&N Dec. 670 (BIA

1974). We find the issues presented in this case appropriate for review

at this time.'

The respondent is a native and citizen of Liberia who entered the

United States at New York, New York, in June of 1980. On June 20,

1990, the respondent was convicted in the Circuit Court for Frederick

County, Maryland, of distribution of a controlled substance (cocaine)

in violation of Article 27, Section 286(a) of the Annotated Code of

Maryland. The respondent was also convicted in the Circuit Court for

Prince George's County, Maryland, on June 25, 1990, of possession

with intent to distribute a controlled substance (cocaine) in violation

of Article 27, Section 286(a)(1) of the Annotated Code of Maryland.

By an Order to Show Cause, Notice of Hearing, and Warrant for Arrest

of Alien filed on November 16, 1990, the respondent was charged with

deportability under section 241(a)(4)(B) of the Act, 8 U.S.C.

§ 1251(0(4)(B) (1988),2 for conviction of an aggravated felony, under

section 241(a)(11) of the Act' for conviction of a controlled substance

violation; and under section 241(a)(1) of the Ace as an alien

excludable at the time of entry as an immigrant not in possession of a

valid immigrant visa or other entry document. The respondent does

not contest that his convictions are aggravated felonies within the

meaning of section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43)

(1988). The only issue on appeal is whether the respondent's convictions render him ineligible for withholding of deportation to Liberia.'

Pursuant to section 515(a)(1) of the Immigration Act of 1990, Pub.

iThe Service's interlocutory appeal, joined by the respondent, is from the June 4,

1991, decision of the immigration judge. Upon being questioned by the Board at oral

argument, both parties requested that the immigration judge's June 14, 1991, decision

on the motion for reconsideration also be considered as part of the current joint appeal.

We have reviewed both of these orders in reaching our decision.

2 Revised and redesignated as section 241(a)(2)(A)(iii) of the Act by section 602 of the

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5080 (effective Nov. 29,

1990).

3 Revised and redesignated as section 241(a)(2)(B) of the Act by section 602 of the

Immigration Act of 1990, 104 Stat. at 5080.

4 Revised and redesignated as section 241(aX1XA) of the Act by section 602 of the

Immigration Act of 1990, 104 Stat. at 5077-78.

'Although the Attorney General has designated Liberia under the Temporary

Protected Statue Program pursuant to section 744A(b) of the Act, 8 U.S.C. § 1254a(b)

(Supp. II 199 0), the respondent, by virtue of his conviction for a drug-related aggravated

felony, is not eligible for temporary protected status under section 244A(c)(2) of the Act.

See 56 Fed. Reg. 12,746 (1991).

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L. No. 101-649, 104 Stat. 4978, 5053 (enacted November 29, 1990),

which amended 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." This bar applies to applications for

asylum made on or after November 29, 1990, and, therefore, as found

by the immigration judge, renders the respondent in this case ineligible

to apply for asylum.

Section 243(h)(2)(B) of the Act states that withholding of deportation "shall not apply to any alien if the Attorney General determines

that ... the alien, having been convicted by a final judgment of a

particularly serious crime, constitutes a danger to the community of

the United States."

Section 515(a)(2) of the Immigration Act of 1990, 104 Stat. at 5053,

amended section 243(h)(2) to add the following at the end: "For

purposes of subparagraph (B), an alien who has been convicted of an

aggravated felony shall be considered to have committed a particularly

serious crime." The 1990 Act is silent as to the effective date of section

515(a)(2). In Matter of U M , this Board found that in the absence of

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any statutory instruction to the contrary, the effective date of the

amendment was the date of enactment of the 1990 Act, which was

November 29, 1990. Matter of u-m., supra, at 332. We therefore apply

the amended version of section 243(h)(2) of the Act in reviewing the

respondent's eligibility for withholding of deportation. Id.

In Matter of Carballe, 19 I&N Dec. 357 (BIA 1986), modified on

other grounds, Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988), we

rejected the contention that section 243(h)(2)(B) requires two separate

and distinct findings as to the seriousness of the crime and the danger

to the community because we found that the proper focus in section

243(h)(2)(B) of the Act is on the serious nature of the crime and not on

the likelihood of future serious misconduct on the part of the alien. As

stated in Car/vile

If it is determined that the crime was a "particularly serious" one, the question of

whether the alien is a danger to the community of the United States is answered in

the affirmative We do not find that there is a statutory requirement for a separate

determination of dangerousness focusing on the likelihood of future serious

misconduct on the part of the alien.

Matter of Carballe, supra, at 360 (citing Crespo-Gomez v. Richard, 780

F.2d 932 (11th Cir. 1986); Zardui-Quintana v. Richard, 768 F.2d 1213

(11th Cir. 1985) (Vance, J., concurring)); see also Ramirez-Ramos v.

INS, 814 F.2d 1394 (9th Cir. 1987); Matter of Gnnzalez, supra; Matter

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

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grounds, Matter of Gonzalez, supra; cf. Matter of Rodriguez-Coto,

I&N Dec. 208 (BIA 1985), modified on other grounds, Matter of

Interim Decision #3163

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

modified on other grounds, Matter of Gonzalez, supra.

In Matter of U-M-, supra, while not addressing the specific

arguments raised in the present appeal, the Board followed the holding

of Carballe in applying section 243(h)(2)(B), as amended by the

Immigration Act of 1990, in the case of an alien convicted of an

aggravated felony. We found there that an alien convicted of an

aggravated felony 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, as no separate finding of danger to the

community is required under Matter of Carballe, the alien is ineligible

for withholding of deportation. Matter of U M , supra, at 5, 8.6

The immigration judge in the instant case reasoned that, based on

the amendments of the Immigration Act of 1990, the Board's decision

in Matter of Carballe, supra, is no longer applicable. He determined

that while an alien convicted of an aggravated felony is considered to

have committed a particularly serious crime, he might not constitute a

danger to the community and therefore would not be barred from

withholding of deportation under section 243(h)(2)(B). The immigration judge found that if Congress, in enacting the Immigration Act of

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1990, intended to render all aggravated felons ineligible for withholding of deportation, it would have done so in clear, unambiguous

language as it did for asylum. The immigration judge relied on

representations from Carl W. Hampe, Minority Counsel to the Senate

Subcommittee on Immigration & Refugee Affairs, to the effect that an

alien convicted of an aggravated felony is barred from applying for

asylum but may still request withholding of deportation. Hampe,

Immigration Enforcement, Exclusions and Deportation Provisions of

the Immigration Act of 1990, in The Immigration Act of 1990 212, 216-

17 (1990). Alternatively, the immigration judge found that even after

Matter of U-M the Board "continues" to apply only a "presumption"

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that an alien convicted of a particularly serious crime constitutes a

danger to the community. The immigration judge stated that the

Board "has neither stated nor implied that this presumption is an

irrebuttable presumption; that is, that an individual having been

convicted of a particularly serious crime, to now include an aggravated

felon, is and always will be a danger to the community of the United

States." The immigration judge stressed that it is not logical to find

6 The regulatory bar to asylum found in S C.F.R. § 208.14(c)(1) (1991) for

commission of a particularly serious crime is, of course, not at issue in this case, as the

respondent is ineligible to apply for asylum, and, absent an application for asylum, the

regulation is not called into play. See section 515(a)(1) of the Immigration Act of 1990,

104 Stat. at 5053.

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that an aggravated felon "will always" pose a danger to the community

and should "forever" be barred from withholding of deportation.

On appeal the Service contends that Matter of Carballe and Matter

of U-M- are controlling, and that the immigration judge's decision

must therefore be reversed. In his reply brief and at oral argument, the

respondent, through counsel, reiterated the arguments noted by the

immigration judge in support of the conclusion that, subsequent to the

amendments of the Immigration Act of 1990, a finding that an alien

"constitutes a danger to the community of the United States" is

separate and distinct from a finding that he has been convicted of a

"particularly serious crime." The respondent contends that barring an

alien convicted of an aggravated felony from asylum but permitting

him to apply for withholding of deportation is not inconsistent with

the Act in that asylum is a more generous form of relief than

withholding. The respondent further emphasizes the strength of the

underlying merits of his claim for withholding of deportation and that

his trafficking convictions involved only.small amounts of a controlled

substance.

We find that the plain language of section 243(h)(2) as amended

does not indicate the result reached by the immigration judge. See INS

v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Flunpathya, 464

U.S. 183, 189 (1984) (the starting point in cases involving statutory

construction must be the language employed by Congress, and it is

assumed that the legislative purpose is expressed by the ordinary

meaning of the words used). Congress is presumed to know the prior

construction of a statute. 1 A N. Singer, Sutherland Statutory Construction §§ 22.33, 22.35 (4th ed. 1985): Matter of Castro, 19 MN Dec.

692, 695 (BIA 1988). Congress did not change the statutory language

of section 243(h)(2)(B) in any way to suggest disapproval of the

Board's construction of this provision in Matter of Carballe, supra.

Through section 515(a)(2) of the Immigration Act of 1990 Congress

clarified that all aggravated felonies are to be considered particularly

serious crimes for the purpose of section 243(h)(2)(B),/ but left section

243(h)(2)(B) and our analysis of it undisturbed. While the language of

section 515(a)(2) expressly states that an alien convicted of an

aggravated felony shall be considered to have committed a particularly

serious crime, thereby obviating the need for a case-by-case determina7 The parties and the immigration judge did not address the question whether only

aggravated felonies are to be considered particularly serious crimes for the purpose of

section 243(h)(2)(13) of the Act as clarified by section 313(a)(2) of the Immigration Act of

1990, or whether certain crimes which are not aggravated felonies may be particularly

serious crimes within the meaning of that provision. We find it unnecessary to decide

this issue for disposition of this interlocutory appeal.

Interim Decision #3163

tion of this question, see Matter of U-M-, supra, at 331-32 (citing

Beltran-Zavala v. INS, 912 F.2d 1 027 (9th Cir. 1990)), it does not alter

the conclusion in Carballe that under section 243(h)(2)(B) all aliens

convicted of particularly serious crimes necessarily constitute a danger

to the community.8 For Congress to repeat the language concerning

"danger to the community" in section 515(a)(2), knowing how the

language of section 243(h)(2)(B) has been interpreted, would only have

been redundant.

We are not persuaded by the argument that if Congress had

intended to absolutely preclude aggravated felons from withholding of

deportation, it would have used the same unambiguous language that

it did for the asylum preclusion added by section 515(a)(1) of the

Immigration Act of 1990. Considering the existing framework of

statutory bars in section 243(h)(2) and the fact that there is no formal

application for withholding as for asylum, it seems a much simpler

answer that Congress did intend to preclude aggravated felons from

withholding of deportation and, knowing how section 243(h)(2)(B) has

been interpreted, achieved that result by simply clarifying the existing

bar to eligibility in section 243(h)(2)(B), rather than adding a wholly

independent bar based on conviction for an aggravated felony.

Because we find no ambiguity in the language of section 243(h)(2) as

amended, there is no reason to consult legislative history. Moreover,

with respect to the comments of Carl W. Hampe, Minority Counsel to

the Senate Subcommittee on Immigration & Refugee Affairs, the

respondent has advanced no arguments that the comments of a staff

member are properly considered legislative history or that any

comments which postdate the act to which they refer, as did Mr.

Hampe's, are properly considered legislative history of that act.

We are also not convinced by the immigration judge's emphasis that

it is not logical to find that an aggravated felon "will always" pose a

danger to the community and should "forever" be barred from

withholding of deportation. In Matter of Carballe, supra, the Board

found that the proper focus of section 243(h)(2)(B) of the Act is on the

8 We do not agree with the immigration judge's conclusion that the decision in Matter

of Carballe indicates that a finding of particularly serious crime creates only a rebuttable

presumption of danger to the community. At one point in Carballe, in noting that the

statutory key to determining whether an alien constitutes a danger to the community is

whether he has been convicted of a particularly serious crime, we stated that "those

aliens who have been fmally convicted of particularly serious crimes are presumptively

dangers to this country's community." Matter of Carballe, supra, at 360. However, the

unqualified conclusion in Carballe Is that "Mr it is determined that the crime was a

'particularly serious' one, the question of whether the alien is a danger to the community

of the United States is answered in the affirmative." Id.; see also Ramirez-Ramos v. INS,

supra; Matter of Gonzalez, supra; Matter of Garcia-Garrocho, supra.

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serious nature of the crime and not on the likelihood of future serious

misconduct on the part of the alien. Accordingly, the Board in Carballe

rejected the contention that section 243(h)(2)(B) requires two separate

and distinct findings as to the seriousness of the crime and the danger

to the community. Furthermore, the emphasis of the immigration

judge on rehabilitation potential seems even less appropriate in the

context of aliens convicted of an aggravated felony, considering the

priority given in the Act to streamlined procedures directed at the

prompt deportation of such aliens. See, e.g., section 242(a)(2) of the

Act, 8 U.S.C. § 1252(a)(2) (1988) (mandatory detention for aliens

convicted of an aggravated felony who are not lawful permanent

residents); section 242(a)(3)(A) of the Act (investigative resources for

identifying and tracking alien aggravated felons); section 242A(a) of

the Act, 8 U.S.C. § 1252a(a) (1988) (special deportation proceedings

for incarcerated criminal aliens); section 242A(c) of the Act (presumption of deportability for aliens convicted of an aggravated felony).

We note the policy argument raised by the respondent that it would

not necessarily be inconsistent for Congress to make "danger to the

community" a separate and distinct test in section 243(h)(2)(B), and

thereby allow for the possibility of an alien convicted of an aggravated

felony to qualify for withholding of deportation, even if asylum is

categorically denied to aggravated felons, because a grant of asylum

contemplates the adjustment of the alien to lawful permanent resident

status in this country and withholding only requires that the alien not

be deported to the country of persecution. However, based on the

language of section 515 of the Immigration Act of 1990, we find that

Congress did not choose to do so. There is no dispute that Congress

has taken a strong stance in the Immigration and Nationality Act

against aliens who commit aggravated felonies. Removing eligibility

for both asylum and withholding of deportation is consistent with this

stance and creates a strong incentive for aliens coming to this country

not to commit aggravated felonies. For aliens who are established in

this country as longtime lawful permanent residents, relief from

deportation under section 212(c) of the Act, 8 U.S.C. § 1182(c), may

be available notwithstanding the conviction of an aggravated felony.

We conclude that the respondent, as an alien who has been

convicted of an aggravated felony, has been convicted of a particularly

serious crime, and therefore, constitutes a danger to the community of

the United States within the meaning of section 243(h)(2)(B) of the

Act. He is ineligible for withholding of deportation. Section 243(h)(2)

of the Act; see also 8 C.F.R. § 208.16(c)(2)(ii) (1991); Matter of U-M-,

supra; Matter of Carballe, supra. The respondent's emphasis on appeal

concerning the underlying merits of his persecution claim and the

allegedly small amount of controlled substance involved in his

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convictions is therefore not relevant. The statutory bar to withholding

of deportation based on conviction of a particularly serious crime

relates only to the nature of the crime and does not vary with the

nature of the evidence of persecution. Ramirez-Ramos v. INS, supra, at

1397-98; Matter of Garcia-Garrocho, supra, at 424 25; Matter of

Rodriguez-Coto, supra, at 209-10. Furthermore, the language of section

515(a)(2) of the Immigration Act of 1990, amending section 243(h)(2)

of the Act, reflects no distinction based on the relative severity of an

aggravated felony.

Accordingly, the interlocutory appeal of the Immigration and

Naturalization Service will be sustained.

The appeal is sustained, and the record is remanded

ORDER:

to the immigration judge for further proceedings consistent with the

foregoing decision.

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