Interim Decision #3180

Interim Decision #3180

MATTER OF C-

In Deportation Proceedings

A-27265741

Decided by Board May 28, 1992

(1) The analysis presented in Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), and

followed in Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990), among other cases,

for determining whether a conviction is for a "particularly serious crime" has been

superseded in part by Congress through amendment of section 243(h)(2) of the

Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1988), by section 515(a)(2)

Pub. L. No. 101-649, 104 Stat. 4978, 5053 (effective

of the Immigration Act of 1990,

Nov. 29, 1990).

(2) With respect to any application for withholding of deportation made on or after

November 29, 1990, where the conviction in question is for an aggravated felony

within the meaning of the Act, the conviction must be deemed to be for a particularly

serious crime without regard to the analysis set forth in Matter of Frentescu, supra.

Matter of U-.111-, 20 I&N Dec. 327 (BIA 1991), affd, 989 F.2d 1055 (9th Cir. 1993);

Matter of Gonzalez, 19 l&INT Dec. 682 (BIA 1988); Matter of Garcia-Garrocho, 19 I&N

191&N

Dec. 423 (BIA 1986), modified, Matter of Gonzalez, supra; Matter of Carballe,

Dec. 357 (BIA 1986), modified, Matter of Gonzalez, supra; and Matter of Frentescu,

supra, modified, Matter of Gonzalez, supra, modified.

CHARGE

Order: Act of 1952—Sec. 241 (aX4)[(A)1 [8 U.S.C. § 1251(a)(4)[(A)]]—Crime involving

moral turpitude

Sec. 241 (aX4)(B) [8 U.S.C. § 1251(a)(4XB)]—Convicted of aggravated felony

ON BEHALF OF SERVICE

William K. Zimmer

General Attorney

ON BEHALF OF RESPONDENT:

Peter Costea, Esquire

Bigham & Nettles, P.C.

600 Travis

3660 Texas Commerce Tower

Houston, Texas 77002

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

In a decision dated December 19, 1990, the immigration judge

found the respondent deportable under section 241(a)(4)[(A)] of the

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)[(A)] (1988),

529

Inr erim Decision #3180

as an alien convicted of a crime involving moral turpitude, and under

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

fe ony.' The immigration judge further determined that, based on his

conviction for an aggravated felony, the respondent was ineligible to

apply for asylum and was barred from eligibility for withholding of

deportation. The immigration judge ordered the respondent deported

to Austria, with an alternate order of deportation to Romania. The

respondent has .appealed.2 The appeal will be dismissed. The respondent's request for oral argument before this Board is denied. 8 C.F.R.

§ 3.1(e) (1992).

The respondent is a male native and citizen of Romania whose

stt tus was adjusted to that of a lawful permanent resident on

September 25, 1986. On September 19, 1989, the respondent was

convicted in the 182nd District Court of Harris County, Texas, of

murder committed on April 22, 1988. Based on the respondent's

admissions at the deportation hearing and the conviction records

submitted by the Immigration and Naturalization Service, the immigration judge found the respondent deportable on the charges set forth

above. The respondent raises no challenge on appeal to the immigratio n judge's findings of deportability.

At the hearing on October 17, 1990, the respondent requested and

given an application for asylum. This application was not filed

prior to November 29, 1990, the effective date of the Immigration Act

of 1990, Pub. L. No. 101-649, 104 Stat. 4978. We agree with the

iii migration judge that, as an alien convicted of an aggravated felony,

the respondent was no longer eligible for asylum beginning November

29, 1990. Section 208(d) of the Act, 8 U.S.C. § 1158(d) (Supp. II

1990), which was added by section 515(a)(1) of the Immigration Act of

1990, 104 Stat. at 5053, provides that an alien who has been convicted

of an aggravated felony "may not apply for or be granted asylum."

T1 is bar applies to convictions entered before, on, or after November

29, 1990, and to applications for asylum made on or after that date.

See section 515(b)(1) of the Immigration Act of 1990, 104 Stat. at

5Q53, as corrected by section 306(a)(13) of the Miscellaneous and

Wi,S

I These sections of the Act have been revised and redesignated as sections

24 (a)(2)(A)(i) and (iii) of the Act, 8 U.S.C. §§ 1251(a)(2)(A)(i) and (iii) (Supp. 11 1990),

by section 602(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,

50"9-80, but that amendment does not apply to deportation proceedings for which

not ice has been provided to the alien before March 1, 1991. See section 602(d) of the

Immigration Act of 1990, 104 Sta. at 5082.

2 We have not considered the new evidence submitted by the respondent on appeal.

TILL =coal we Levicw uu appeal is the let:And haute the imatiguttiou judge. Mutier of

Haim, 19 I&N Dec. 641 (BIA 1988). The respondent has not filed a motion to reopen

bated on new evidence.

530

Interim Decision #3180

Technical Immigration and Naturalization Amendments of 1991, Pub.

L. No. 102-232, 105 Stat. 1733, 1752 (enacted Dec. 12, 1991).

Furthermore, as an alien convicted of an aggravated felony, the

respondent is considered to have committed a "particularly serious

crime" for purposes of section 243(h)(2)(B) of the Act, 8 U.S.0

1253(h)(2)(B) (Supp. II 1990), and is therefore not eligible for

withholding of deportation. Section 243(hX2) of the Act, as amended

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

see also Matter ofK-, 20 I&N Dec. 418 (BIA 1991); Matter of El-M-, 20

I&N Dec. 327 (BIA 1991), affd, 989 F.2d 1085 (9th Cir. 1993).

Section 515(a)(2) of the Immigration Act of 1990 applies to convictions entered before, on, or after November 29, 1990, and to

applications for withholding of deportation made on or after that date.

See section 515(b)(2) of the Immigration Act of 1990, 104 Stat. at

5053, as corrected by section 306(a)(13) of the Miscellaneous and

Technical Immigration and Naturalization Amendments of 1991, 105

Stat. at 1752:

The respondent contends that he was unable to file his asylum

application prior to November 29, 1990, because he was unable to

understand some of the questions, he was not represented by counsel

at that time, and no interpreter qualified to speak his native tongue

was present at his October 17, 1990, hearing. He therefore asserts that

his asylum application should be deemed constructively filed prior to

November 29, 1990. The respondent's assertions are without merit.

He did not request an asylum application until October 17, 1990, nor

would it be the responsibility of the court interpreter to assist him in

filing his application. There is no indication that the respondent was

denied his right to counsel in deportation proceedings. See sections

242(b)(2), 292 of the Act, 8 U.S.C. §§ 1252(b), 1362 (1988); 8 C.F.R.

§§ 3.15(b) (1992) (to be redesignated as 8 C.F.R. § 3.16(b), see 57 Fed.

Reg. 11,571 (Apr. 6, 1992)); 3.36(d) (1992) (to be redesignated as 8

C.F.R. § 3.38(d), see 57 Fed. Reg. 11,571 (Apr. 6, 1992)); 242.2(c)(2);

242.2(d) (as revised at 57 Fed. Reg. 11,573 (Apr. 6, 1992)); 242.10;

242.16(a), (d); 292 (1992). Moreover, the respondent has not shown

how he would ultimately benefit even if his application were to be

deemed constructively filed on October 17, 1990. Under the regulations effective for asylum applications filed after October 1, 1990, the

respondent, as an alien convicted of a particularly serious crime, is

ineligible for asylum or withholding of deportation. 8 C.F.R.

§§ 208.14(c)(1), 208.16(c)(2)(ii) (1992); cf. Matter of , 20 I&N Dec.

427 (BIA 1991).

The respondent contends that the "statutory equation" under

section 243(h)(2) of the Act, as amended, between "aggravated felony"

and "particularly serious crime" does not apply to this case because his

-

531

Interim Decision #3180

conviction occurred before November 29, 1990. However, the technical amendments to the Immigration Act of 1990 made clear that the

amendment of section 243(h)(2) by section 515(a)(2) of the Immigration Act of 1990 applies to convictions entered before, on, or after

November 29, 1990, and to applications for withholding of deportation made on or after that date. See section 306(a)(13) of the

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, 105 Stat. at 1752. The respondent's argument that

application of this provision to his case contravenes the ex post facto

clause of the Constitution is also without merit. Deportation proceedings are civil proceedings, which are not considered punishment or a

criminal process and, therefore, the ex post facto clause is not

implicated. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Matter of

Valdovinos, 18 I&N Dec. 343 (BIA. 1982). Moreover, it is settled that

the immigration judge and this Board lack jurisdiction to rule upon the

constitutionality of the Act and the regulations. See section 103 of the

Act, 8 U.S.C. § 1103 (1988); 8 C.F.R. § 3.1 (1992); Bagues-Valles v.

INS, 779 F.2d 483 (9th Cir. 1985); Dastmalchi v. INS, 660 F.2d 880

(3d Cir. 1981); Matter of Valdovinos, supra; Matter of Cortez, 16 I&N

Dec. 289 (BIA 1977).

The respondent contends that the immigration judge should have

made an inquiry into whether the respondent pleaded guilty to murder

voluntarily and with the proper advice and assistance of counsel. The

immigration judge and this Board cannot entertain a collateral attack

on a judgment of conviction unless that judgment is void on its face

and cannot go behind the judicial record to determine the guilt or

innocence of the alien. Matter of Fortis, 14 I&N Dec. 576, 577 (BIA

1974); see also Trench v. INS, 783 F.2d 181 (10th Cir.), cert. denied,

479 U.S. 961 (1986); Avila Murrieta v. .INS, 762 F.2d 733 (9th Cir.

1985); Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981) (per curiam);

Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. 1980) (foreign conviction); Longoria Castenada v. INS, 548 F.2d 233 (8th Cir.), cert. denied,

434 U.S. 853 (1977); Aguilera Enriquez v. INS, 516 F.2d 565 (6th Cir.

1975), cert. denied, 423 U.S 1050 (1976); Matter of Danesh, 19 I&N

Dec. 669 (BIA 1988); Matter of Khalik, 17 I&N Dec. 518 (BIA 1980).

In addition, a majority of the circuit courts, including the United

States Court of Appeals for the Fifth Circuit in which this case arises,

have held that the fact that a defendant is not advised of the collateral

immigration consequences of his plea does not amount to a denial of

due process which would vitiate the plea. Santos v. Kolb, 880 F.2d 941

(7th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); United States v.

Nino, 878 F.2d 101 (3d Cir. 1989); United States v. Yearwood, 863

F.2d 6 (4th Cir. 1988); United States v. Quin, 836 F.2d 654 (1st Cir.

1988); United States v. Campbell, 778 F.2d 764 (11th Cir. 1985);

-

-

-

532

Interim Decision #3180

United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985); Fruchtman v.

Kenton, 531 F.2d 946 (9th Cir.), cert. denied, 429 U.S. 895 (1976);

United States v. Santelises, 476 F2d 787 (2d Cir. 1973); United States

v. Sambro, 454 F.2d 918 (D.C. Cir. 1971) (per curiam); United States

v. Nagaro-Uarbin, 653 F. Supp. 586 (E.D. Mich.), afj'd, 831 F.2d 296

(6th Cir.. 1987); see also United States v. Cabrera-Quintero, 650 F.2d

942 (8th Cir. 1981).

The respondent further contends that the Board's decision in Matter

of supra, which held that under section 243(h)(2) of the Act, as

amended, an alien convicted of an "aggravated felony" is deemed to

have committed a "particularly serious crime" and therefore necessarily constitutes a "danger to the community," is "exceedingly harsh,"

"legally defective," and "improper," citing Beltran-Zavala v. INS, 912

F.2d 1027 (9th Cir. 1990), and Matter of rentescu, 18 I&N Dec. 244

(BIA 1982), modified, Matter of Gonzalez, 19 I&N Dec. 682 (BIA

1988).

The respondent has raised no argument that persuades us to

reconsider our decision in Matter of K -, supra. If being barred from

withholding of deportation based on conviction of an aggravated

felony is an "exceedingly harsh" result, it is nonetheless the result

required by the language of Congress in amending section 243(h)(2) of

the Act. Matter of K-, supra; Matter of U-M-, supra. Furthermore, the

reasoning in Matter of Frentescu, supra, and in Beltran-Zavala v. INS,

supra, cited by the respondent, has been superseded by the amendment

of section 243(h)(2).

At the time the Board decided Frentescu in 1982, "particularly

serious crime" was a new term with no statutory guidance as to its

meaning. In Frentescu the Board did not set forth an exact definition

of "particularly serious crime" and concluded that while some crimes

on their face are or are not particularly serious, "the record in most

proceedings will have to be analyzed on a case by case basis," looking

to the nature and circumstances of the alien's crime. Matter of

Frentescu, supra, at 246. The Court of Appeals for the Ninth Circuit in

Beltran-Zavala v. INS, supra, reapproved the formulation in Frentescu,

but remanded the case before it, finding that the Board had gone

beyond looking at the particular conviction of record and its circumstances to erecting a "class" of "per se" particularly serious crimes.

The court stated that section 243(h)(2)(B) of the Act did not erect

classes of crimes that are per se particularly serious, observing that if

Congress wanted to erect per se classifications of crimes precluding

immigration and nationality benefits, it knew how to do so. BeltranZavala v. INS, supra, at 1032.

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

both provided guidance lacking at the time of Frentescu and erected a

-

533

-

Interim Decision #3180

class of per se particularly serious crimes, that is, aggravated felonies,

as the court in Beltran-Zavala said it knew how to do. That section

amended section 243(h)(2) of the Act to provide that "an alien who

has been convicted of an aggravated felony shall be considered to have

committed a particularly serious crime." Section 515(a)(2) of the

Immigration Act of 1990, 104 Stat. at 5053. This amendment applies

to convictions entered before, on, or after November 29, 1990, and to

applications for withholding of deportation made on or after that date.

See section 515(b)(2) of the Immigration Act of 1990, 104 Stat. at

5053, as corrected by section 306(a)(13) of the Miscellaneous and

Technical Immigration and Naturalization Amendments of 1991, 105

Stat. at 1752. Thus, in any request for withholding of deportation

made on or after November 29, 1990, if the conviction in question

qualifies as an aggravated felony, it qualifies as a particularly serious

crime for purposes of section 243(h)(2)(B) of the Act without regard to

the case-by-case analysis set forth in Matter of Frentescu, supra. See

Matter of K-, supra, at 423-24; Matter of U-M-, supra, at 331-32 (citing

Beltran Zavala V. INS, .supra). Indeed, pursuant to the plain language

-

of the amendment to section 243(h)(2), this Board cannot find that a

conviction which qualifies as an aggravated felony is not for a

particularly serious crime in any request for withholding of deportation made on or after November 29, 1990.

In addition, the definition of "aggravated felony" at section

101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. II 1990), which,

as we have discussed before, is itself made up of certain classes or

categories of crimes, see, e.g., Matter of Meza, 20 I&N Dec. 257 (BIA

1991), covers the vast majority of crimes we would have previously

determined to be particularly serious crimes. Thus, while "most" of

the crimes in cases 10 years ago when Frentescu was decided had to be

analyzed on a case-by-case basis to determine if they were "particularly serious crimes," the opposite is now true. By far, most of the

convictions in cases received by the Board today in 1992, which

involve the types of crimes we have in the past considered to be

particularly serious crimes, qualify as convictions for aggravated

felonies.

In sum, the analysis presented in Matter of Frentescu, and followed

and expanded in several precedent decisions since then, for determining whether a conviction is for a "particularly serious crime" has been

superseded by Congress through amendment of section 243(h)(2) of

the Act by section 515(a)(2) of the Immigration Act of 1990. With

respect to any application for withholding of deportation made on or

after November 29, 1990, where the conviction in question is for an

aggravated felony within the meaning of the Act, the conviction must

be deemed to be for a particularly serious crime without regard to the

534

Interim Decision #3180

analysis set forth in Matter of Frentescu, supra.; An alien, having been

convicted by a final judgment of a particularly serious crime,

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

ineligible for withholding of deportation. Section 243(h)(2)(B) of the

Act; Matter of K-, supra. To the extent they are inconsistent with the

foregoing decision, Matter of Frentescu and the following cases are

hereby modified: Matter of U-M-, supra; Matter of Gonzalez, supra;

Matter of Garcia.Garrocho, 19 I&N Dec. 423 (81A 1986), modified,

Matter of Gonzalez, supra; Matter of Carballe, 19 I&N Dec. 357 (BIA

1986), modified, Matter of Gonzalez, supra.

The appeal is dismissed.

ORDER:

;There will of course continue to be situations requiring a determination whether a

"particularly serious crime" exists under Frentescu; such is the case, for example, where

the crime does not technically qualify as an aggravated felony under the Act based on the

conviction date, see Matter of B-, supra, at 430-31; the withholding request precedes

November 29, 1990; or, perhaps, where the crime falls outside the definition of

aggravated felonry but should, under the analysis of Frentescu, be deemed a particularly

serious crime. Even under certain of these cases, however, and including cases

construing the term "particularly serious crime" for purposes of 8 C.F.R.

§§ 208.14(c)(1) and 208.16(0(2)(1i) (1992) (regarding asylum and withholding applications filed on or after October 1, 1990), the 1990 amendment to section 243(h)(2) of the

Act may appropriately provide guidance. Cf. Mailer of B-, supra, at 430-31; Matter of UM., supra, at 332.

41<