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Interim Decision #3588

In re N-A-M-, Respondent

Decided October 24, 2007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In order to be considered a particularly serious crime under section 241(b)(3)(B)(ii) of

the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (2000), an offense

need not be an aggravated felony under section 101(a)(43) of the Act, 8 U.S.C.

§ 1101(a)(43) (2000 & Supp. IV 2004).

(2) Once the elements of an offense are found to potentially bring it within the ambit of a

particularly serious crime, all reliable information may be considered in determining

whether the offense constitutes a particularly serious crime, including but not limited to

the record of conviction and sentencing information.

FOR RESPONDENT: Laura L. Lichter, Esquire, Denver, Colorado

FOR THE DEPARTMENT OF HOMELAND SECURITY: Weldon S. Caldbeck, Assistant

Chief Counsel

BEFORE: Board Panel: FILPPU and PAULEY, Board Members; M.C. GRANT,

Temporary Board Member

PAULEY, Board Member:

In a decision dated March 13, 2007, an Immigration Judge found the

respondent removable and denied the relief of withholding of removal under

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

§ 1231(b)(3)(B)(ii) (2000).1 The respondent has filed a timely appeal from

that decision.2 The appeal will be dismissed.

1

The respondent did not apply for asylum, conceding that an application would be

untimely. Likewise, the respondent did not apply for protection under the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted

and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at

197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United

States Apr. 18, 1988).

2

As noted in the Immigration Judge’s decision, the respondent’s counsel characterizes the

respondent as a preoperative transgendered person. We will therefore not refer to the

respondent’s gender in this order.

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Interim Decision #3588

I. FACTUAL AND PROCEDURAL HISTORY

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

June 7, 2005, of felony menacing in violation of sections 18-3-206(1)(a) and

(b) of the Colorado Revised Statutes and was sentenced to 4 years’ deferred

judgment. Under section 18-3-206(1) of the Colorado Revised Statutes, a

person “commits the crime of menacing if, by any threat or physical action, he

or she knowingly places or attempts to place another person in fear of

imminent serious bodily injury.” Furthermore, the offense of menacing under

section 18-3-206(1) is a felony if the crime was committed

(a) By the use of a deadly weapon or any article used or fashioned in a manner to

cause a person to reasonably believe that the article is a deadly weapon; or

(b) By the person representing verbally or otherwise that he or she is armed with a

deadly weapon.

According to a Statement in Support of Warrantless Arrest in the record, the

respondent was performing oral sex on a 20-year-old man against his will

when the victim awoke. Thereafter, an argument took place, which involved

two other persons who appeared to be the parents of the victim. The

respondent allegedly grabbed two knives and threatened to kill the victim and

one of the other members of the household.

The Immigration Judge found that the respondent had experienced past

persecution but was ineligible for withholding of removal as a result of the

conviction for a particularly serious crime.

II. ISSUES ON APPEAL

At issue in this case is whether the respondent’s offense of felony menacing

constitutes a particularly serious crime under the Act. The respondent

contends that the Immigration Judge erred in finding that the conviction is for

a particularly serious crime. In examining this question, we must address two

distinct issues. The first is whether a particularly serious crime must be an

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

(2000 & Supp. IV 2004), a matter on which there is a conflict among the

circuits. The second issue is whether, as one circuit has held, we are limited

to certain sources of evidence in determining whether an offense is particularly

serious.

We hold that a particularly serious crime need not be an aggravated felony.

Furthermore, once the elements of the offense are examined and found to

potentially bring the offense within the ambit of a particularly serious crime,

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all reliable information may be considered in making a particularly serious

crime determination, including but not limited to the record of conviction and

sentencing information.

III. ANALYSIS

A. Interplay Between Particularly Serious Crimes

and Aggravated Felonies

The Act provides that an alien is ineligible for withholding of removal if

“the Attorney General decides that . . . the alien, having been convicted by a

final judgment of a particularly serious crime, is a danger to the community of

the United States.” Section 241(b)(3)(B)(ii) of the Act. The Act further

provides as follows:

For purposes of clause (ii), an 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.

Section 241(b)(3)(B) of the Act.

The respondent suggests that the offense of felony menacing should not be

considered a particularly serious crime because it is not an aggravated felony.

We disagree. A plain reading of the Act indicates that the statute does not

require an offense to be an aggravated felony in order for it to be considered

a particularly serious crime. See section 241(b)(3)(B)(ii) of the Act; see also

Ali v. Achim, 468 F.3d 462, 470 (7th Cir. 2006), cert. granted, 75 USLW 3557,

76 USLW 3018 (U.S. Sept. 25, 2007) (No. 06-1346) (noting that section 241

of the Act “does not state a general rule that only aggravated felonies can be

considered” particularly serious crimes). Contra Alaka v. Att’y Gen., 456 F.3d

88, 104-05 (3d Cir. 2006).

We agree with the United States Court of Appeals for the Seventh Circuit

that the “designation of aggravated felonies producing sentences of at

least five years’ imprisonment as per se ‘particularly serious’ creates no

presumption that the Attorney General may not exercise discretion on a

case-by-case basis to decide that other nonaggravated-felony crimes are also

‘particularly serious.’” Ali v. Achim, supra, at 470.3 Although we have issued

no precedent decision on this question, our consistent practice in numerous

3

We find the reasoning of the Seventh Circuit in Ali v. Achim, supra, to be persuasive, even

though it is not binding in this case, which arises in the Tenth Circuit.

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Interim Decision #3588

decisions over the course of the years has reflected an understanding that the

classification of an offense as a “particularly serious crime” is not limited to

offenses that are aggravated felonies.

Our reading of the Act is supported by the history and background of the

particularly serious crime provision, which is set forth in detail in Matter of

L-S-, 22 I&N Dec. 645, 648-53 (BIA 1999). When Congress enacted the

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

statutory provision for withholding of deportation to provide that such relief

should not be available 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.” Former section 243(h)(2)(B) of the Act, 8 U.S.C.

§ 1253(h)(2)(B) (Supp. IV 1980). The term aggravated felony had not been

incorporated into the Act at that time, and there were no statutory directives

regarding the types of crimes that would or would not fall within the

“particularly serious crime” category. See Anti-Drug Abuse Act of 1988,

Pub. L. No. 100-690, § 7342, 102 Stat. 4181, 4469-70 (adding the term

“aggravated felony” to the Immigration and Nationality Act). Even after the

enactment of the aggravated felony definition, the question whether an offense

was a particularly serious crime was not linked to the definition of an

aggravated felony, and for more than a year the Board and Immigration Judges

could examine any crimes to determine whether they were particularly serious

under the Act.

In 1990, Congress linked particularly serious crimes to aggravated felonies.

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 purposes of section

243(h)(2). See generally Matter of A-A-, 20 I&N Dec. 492 (BIA 1992). The

Immigration Act of 1990 rendered our decision in Matter of Frentescu, 18 I&N

Dec. 244 (BIA 1982), which set forth the analysis for determining whether a

crime was “particularly serious,” inapplicable to many cases because certain

offenses were automatically deemed to be particularly serious crimes as a

result of their classification as aggravated felonies. See Matter of C-, 20 I&N

Dec. 529 (BIA 1992). However, there was no suggestion that other crimes

could not be treated as “particularly serious.” As we noted in Matter of C-,

supra, at 535 n.3, there would continue to be situations requiring a particularly

serious crime determination under the analysis set forth in Matter of Frentescu,

supra, “where the crime falls outside the definition of aggravated felony.”

Congress first altered the link between particularly serious crimes and

aggravated felonies 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”). The AEDPA amended section

243(h) of the Act to give the Attorney General discretionary authority to

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override the categorical bar designating every aggravated felony a particularly

serious crime if the Attorney General determined it was “necessary to ensure

compliance with the 1967 United Nations Protocol Relating to the Status of

Refugees.” Id. (codified at former section 243(h)(3)(B) of the Act). In other

words, this change returned some of the authority taken away from the

Attorney General in the Immigration Act of 1990 and permitted the Attorney

General to find that certain aggravated felonies were not particularly serious

crimes.

Shortly thereafter, Congress significantly altered the relationship between

particularly serious crimes and aggravated felonies, as applied to withholding

of removal, with the passage of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, enacted as Division C of Pub. L. No. 104-208, 110

Stat. 3009-546 (“IIRIRA”). Section 305(a) of the IIRIRA, 110 Stat. at

3009-602, changed the definition of a “particularly serious crime” by adding

the following language to section 241(b)(3) of the Act:

For purposes of clause (ii) [setting forth the bar to withholding of removal for an alien

convicted of a particularly serious crime], an 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.

As we noted in Matter of L-S-, supra, at 650-52, this most recent revision

of the “particularly serious crime” provision accomplished what section 413(f)

of the AEDPA had not: it eliminated the categorical exception to withholding

of removal for any alien convicted of an aggravated felony. At the same time,

while Congress eliminated the statutory presumption that all aggravated

felonies are particularly serious crimes for purposes of the withholding

provision, it expanded the definition of an aggravated felony. See, e.g., IIRIRA

§ 321(a), 110 Stat. at 3009-627 (codified at section 101(a)(43) of the Act).4

Particularly serious crimes and aggravated felonies are no longer automatically

linked for purposes of withholding of removal except for aggravated felonies

for which the alien has been sentenced to an aggregate term of imprisonment

of at least 5 years.

This brief historical review indicates that Congress intentionally withdrew

much of its prior equation of particularly serious crimes with aggravated

4

We noted in Matter of L-S-, supra, at 651 n.7, that we apply the relevant factors “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.” (Emphasis added.)

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felonies in the withholding of removal context in order to allow a more flexible

analysis in determining whether an offense is a particularly serious crime. At

no time in our history, however, has the concept of a particularly serious

crime been confined to the changing categories of aggravated felonies,

notwithstanding the tendency toward expansion of the latter.

We recognize that the Third Circuit has held, within the context of

precluding an alien from withholding of removal, that an offense must be an

aggravated felony to be a particularly serious crime. Alaka v. Att’y Gen.,

supra. However, we respectfully disagree with the Third Circuit’s

interpretation that section 241(b)(3)(B)(ii) of the Act defines the term

“particularly serious crime” as a subset of aggravated felony offenses. That

interpretation is not in accord with our original interpretation of the term, which

has been in effect for more than a quarter of a century. Nor do we agree with

the Third Circuit that such a result is dictated or suggested by the second

sentence of section 305(a) of the IIRIRA quoted above. That sentence means

only that aggravated felonies for which sentences of less than 5 years’

imprisonment were imposed may be found to be “particularly serious crimes,”

not that only aggravated felonies may be found to be such crimes. See Matter

of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989) (stating that “[w]here we disagree

with a court’s position on a given issue, we decline to follow it outside the

court’s circuit”).5

Furthermore, we find that Congress did not intend to limit what offenses

may be particularly serious crimes to those offenses classified as aggravated

felonies. When Congress established categories of aggravated felonies, it

frequently referenced other provisions that contain technical requirements, such

as crimes of violence under 18 U.S.C. § 16 (2000). Not all very serious

offenses will meet all of the technical requirements that go along with

classification as an aggravated felony under the Immigration and Nationality

Act. Moreover, there may well be offenses that are particularly serious, yet fall

totally outside the aggravated felony enumeration in section 101(a)(43) of the

Act.6 We do not read the statute, or the history leading up to the current

language, as creating a gap or loophole for particularly serious crimes that

happen to escape classification as aggravated felonies. To do so would be

inconsistent with the goal of protecting the public, which is at the heart of the

“particularly serious crime” bar.

5

We need not decide here whether to follow Alaka v. Attorney General, supra, in the Third

Circuit. See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967 (2005).

6

See, e.g., 18 U.S.C. § 175 (2000 & Supp. IV 2004) (relating to biological weapons);

18 U.S.C. § 1365 (2000 & Supp. IV 2004) (relating to tampering with consumer products).

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B. Evidence That May Be Used in a

Particularly Serious Crime Determination

Where, as in the instant case, a conviction is not for an aggravated felony

for which the alien has been sentenced to an aggregate term of imprisonment

of at least 5 years, we examine the nature of the conviction, the type of

sentence imposed, and the circumstances and underlying facts of the

conviction. See Matter of L-S-, supra; Matter of Q-T-M-T-, 21 I&N Dec. 639

(BIA 1996). On some occasions, we have focused exclusively on the

elements of the offense, i.e., the nature of the crime. See, e.g., Matter of

Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986) (looking at the elements of the

offense of burglary in the first degree and finding that, on its face, such a crime

is a particularly serious one); see also Hamama v. INS, 78 F.3d 233 (6th Cir.

1996) (noting that the Board may find some crimes to be per se particularly

serious, without needing to examine the individual circumstances of the crime).

However, we have generally examined a variety of factors and found that the

“consideration of the individual facts and circumstances is appropriate.”

Matter of L-S, supra, at 651.

If the elements of the offense do not potentially bring the crime into a

category of particularly serious crimes, the individual facts and circumstances

of the offense are of no consequence, and the alien would not be barred from

a grant of withholding of removal. On the other hand, once the elements of the

offense are examined and found to potentially bring the offense within the

ambit of a particularly serious crime, all reliable information may be considered

in making a particularly serious crime determination, including the conviction

records and sentencing information, as well as other information outside the

confines of a record of conviction. Matter of L-S, supra, at 654-56 (examining

in detail the actual circumstances of the crime, well beyond what was disclosed

by the elements of the crime, including information from other participants in

the crime).

We note that our approach to determining whether a crime is particularly

serious has evolved since the issuance of our decision in Matter of Frentescu,

supra, which is cited in the respondent’s brief. For example, once an alien is

found to have committed a particularly serious crime, we no longer engage in

a separate determination to address whether the alien is a danger to the

community. As set forth in Matter of Carballe, 19 I&N Dec. 357 (BIA 1986),

the proper focus for determining whether a crime is particularly serious is on

the nature of the crime and not the likelihood of future serious misconduct. See

also Al-Salehi v. INS 47 F.3d 390 (10th Cir. 1995) (upholding Matter of

Carballe, supra); Alaka v. Att’y Gen., supra, at 95 (same, citing unanimous

court of appeals authority to this effect); Matter of Q-T-M-T-, supra, at 645-46.

Consequently, we are not persuaded by the argument that the respondent

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allegedly does not pose any future danger to members of the community and

therefore was not convicted of a particularly serious crime.7

Likewise, in Matter of Y-L-, A-G-, & R-S-R-, 23 I&N Dec. 270, 273-74,

277-78 (A.G. 2002), the Attorney General found that the sentence imposed is

not a dominant factor in determining whether a conviction is for a particularly

serious crime. Factors that are subsequent and unrelated to the commission of

the offense, such as cooperation with law enforcement authorities, bear only on

sentencing. Similarly, offender characteristics may operate to reduce a

sentence but do not diminish the gravity of a crime. Therefore, the sentence

imposed is not the most accurate or salient factor to consider in determining the

seriousness of an offense. For these reasons, we find no merit to the

respondent’s argument that the offense is not a particularly serious crime

because a sentence to a term of imprisonment was not imposed.

We find that the respondent’s offense is a particularly serious crime based

solely on its elements, i.e., that the offense by its “nature” is a particularly

serious one. In order to be convicted under sections 18-3-206(1)(a) and (b) of

the Colorado Revised Statutes, a person must use, or represent that he or she

is armed with, a deadly weapon and must knowingly place or attempt to place

another person in fear of imminent serious bodily injury. Because the statutory

provisions under which the respondent was convicted clearly require a serious

threat to others, the offense is a crime against a person. We have held that

crimes against persons are more likely to be categorized as particularly serious.

See Matter of L-S-, supra, at 649. We therefore find that the respondent was

convicted of a particularly serious crime.

Moreover, the evidence in the record relating to the respondent’s offense

supports our finding that the conviction is for a particularly serious crime. We

note that the conviction record indicates that the respondent was required

to register as a sex offender. Furthermore, the Statement in Support of

Warrantless Arrest indicates that the respondent was performing a

nonconsensual sexual act and subsequently threatened the victim with two

knives. The respondent contends that the Immigration Judge erred in relying

on the Statement in Support of Warrantless Arrest. We disagree. We find that

we may examine all reliable information and are not limited to reviewing the

record of conviction and sentencing information.

The respondent cites Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007), in

which the Ninth Circuit found that an Immigration Judge erred in relying on the

7

The respondent contends that there is no danger to the community because “the context of

the crime indicates that [the respondent’s] threats were primarily an aggressive defensive

response to being physically attacked while being interrupted during a sex act.” We note,

however, that the sex act was not consensual on the victim’s part.

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facts recited in a Washington State appellate court opinion that were not

admitted or established as the circumstances and underlying facts of the

conviction. However, the Ninth Circuit’s opinion is based entirely on

purported deference to our precedent decisions, which we respectfully find that

the court misread. The Ninth Circuit quoted our decision in Matter of L-S-,

supra, stating that according to the Board, “it is permissible to ‘look to the

conviction records and sentencing information . . . [but] . . . not [to] 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.’” Morales v. Gonzales, supra, at

981 (quoting Matter of L-S-, supra, at 651). However, our decision in Matter

of L-S-, did not prohibit the examination of other evidence or indicate that only

conviction records and sentencing information could be used. In fact, as

previously noted, we examined in detail the actual circumstances of the crime,

well beyond what is disclosed by the elements of the crime, including

sentencing information and information from other participants in the crime.

Matter of L-S-, supra, at 654-56.

It has been our practice to allow both parties to explain and introduce

evidence as to why a crime is particularly serious or not. We see no reason to

exclude otherwise reliable information from consideration in an analysis of a

particularly serious crime once the nature of the crime, as measured by its

elements, brings it within the range of a “particularly serious” offense. See

Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007). Our consistent practice

in this regard has also been followed by the Attorney General. See Matter of

Y-L-, A-G-, & R-S-R-, supra.8 Furthermore, we point out that neither Morales

v. Gonzales, supra, nor any other decision of which we are aware, has ever

suggested that the categorical approach, used primarily in determining

removability, is applicable to the inherently discretionary determination of

whether a conviction is for a particularly serious crime.9 Nor does the

8

Insofar as Matter of L-S-, supra, at 651, referenced only “conviction records and

sentencing information,” its phraseology was less than comprehensive. We do not retry the

question of guilt as to the elements of an offense. See section 101(a)(48)(A) of the Act

(defining “conviction” in significant part to require a determination of guilt). However, we

do look beyond evidence that identifies only the elements in cases where the elements fit a

category of a potentially particularly serious crime. This is most notable, perhaps, as to

aggravated felonies that carry imposed sentences of less than 5 years. The elements do not

change depending on the length of sentence, but the severity of the crime is not always

reflected in the length of the sentence.

9

The Supreme Court has applied the categorical approach in the aggravated felony context,

where the determination has both criminal and immigration law application. Furthermore,

while both we and the courts of appeals have applied the categorical approach to other

convictions having only immigration consequences, e.g., the question whether an offense is

(continued...)

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respondent raise such a claim. Thus, the formulation wrongly attributed to the

Board in Morales v. Gonzales, supra, makes no sense because there is no

reason to restrict the use of reliable information to that used in sentencing once

the strictures of the categorical approach are deemed not to apply.10

Lastly, the respondent contends that the Immigration Judge erred in

comparing the conviction to that in Matter of B-, 20 I&N Dec. 427 (BIA 1991).

However, the Immigration Judge only cited Matter of B- to set forth the

standards for determining what constitutes a particularly serious crime.

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

(...continued)

a crime involving moral turpitude, such categories of crimes may affect both removability

and eligibility for relief. In contrast, the “particularly serious crime” determination affects

solely eligibility for asylum and withholding of removal, on which the alien has the burden

of proof, and represents the sort of inherently judgmental calculus, once the elements of the

offense have been found to potentially bring it within the parameters of a particularly serious

crime, that the categorical approach is unsuited to the determination. See Navarro-Lopez v.

Gonzales, No. 04-70345, 2007 WL 2713211, at *18 (9th Cir. Sept. 19, 2007) (en banc) (Bea,

J., dissenting) (contending that the categorical approach should have no application even to

the crime involving moral turpitude question).

10

The respondent also argues that the Statement in Support of Warrantless Arrest was

improperly utilized because the Immigration Judge deprived the respondent of an

opportunity to testify as to the circumstances of the crime and to cross-examine the author

of the Statement. The argument is without merit. The Immigration Judge admitted the

Statement in Support of Warrantless Arrest but stated that he would later deal with its

contents “if the respondent denies the truthfulness of any of those statements.” The

respondent, who testified, never did so. Moreover, the Immigration Judge accepted an offer

of proof that the respondent’s brother would testify that when the respondent lived in his

home there were no incidents of violence or improper sexual contact. The Immigration

Judge did not err in admitting the Statement in Support of Warrantless Arrest. See

Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823-24 (9th Cir. 2003); Bustos-Torres v. INS, 898

F.2d 1053 (5th Cir. 1990); Matter of Gomez-Gomez, 23 I&N Dec. 522 (BIA 2002); see also

Matter of Thomas, 21 I&N Dec. 20 (BIA 1995).

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