Ahmetovic v. I.N.S.

• Decision Date: 27 July 1995
• Docket Number: No. 1084,D,1084
• Citation: 62 F.3d 48
• Parties: Begija AHMETOVIC, also known as Begi Ahonetajic, also known as Begi Ahmetovic, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 94-4145.
• Court: U.S. Court of Appeals — Second Circuit

Page 48

62 F.3d 48

Begija AHMETOVIC, also known as Begi Ahonetajic, also known as Begi Ahmetovic, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 1084, Docket 94-4145.

United States Court of Appeals Second Circuit.

Argued March 2, 1995.

Decided July 27, 1995.

Pamela Goldberg, Cuny School of Law, Main Street Legal Services, Flushing, NY, for petitioner.

M. Chinta Gaston, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., S.D.N.Y., Diogenes P. Kekatos, Steven I. Froot, Asst. U.S. Attys., New York City, of counsel), for appellee.

Before: WINTER and LEVAL, Circuit Judges, and SAND, District Judge. ^*

WINTER, Circuit Judge:

Begija Ahmetovic, who now prefers to be known as Begije Mati, petitions for review of a decision of the Board of Immigration Appeals ("BIA"), which held that Mati is ineligible for political asylum under 8 C.F.R. Sec. 208.14(c)(1) (1994) or withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)(B). We deny the petition.

BACKGROUND

Mati is an Albanian Moslem from Serbia. She came to the United States on May 25, 1979, on a non-immigrant visitor's visa that authorized her to remain for two months. After her visa expired, Mati continued to live in the United States illegally.

On July 7, 1986, Mati shot and killed her first husband, Ali Ahmetovic, during a domestic dispute. In an affidavit, Mati asserts that Ali had physically abused her and that she shot him in self defense. Nevertheless, Mati pleaded guilty to first degree manslaughter and first degree criminal use of a firearm. She was sentenced to imprisonment for four to twelve years and was incarcerated from July 7, 1986 through November 13, 1990. Mati is now on probation and has re-married.

On November 9, 1990, the Immigration and Naturalization Service ("INS") served Mati with an Order to Show Cause and Notice of Hearing, charging that she was deportable as an overstay pursuant to the Immigration and Nationality Act (the "INA"), 8 U.S.C. Sec. 1251(a)(2). A five-day deportation hearing was conducted before Immigration Judge ("IJ") Sabri Kandah. Mati admitted the allegations in the Order to Show Cause and conceded her deportability. However, she applied for asylum ¹ and withholding of deportation ² based on evidence that her life would be endangered if she were deported to Serbia.

On May 23, 1991, the IJ issued an oral opinion denying Mati's application. The IJ determined that Mati is ineligible for withholding of deportation because she was convicted of a "particularly serious crime" under 8 U.S.C. Sec. 1253(h)(2)(B). The IJ also denied Mati's asylum application, holding that Mati failed to meet her burden of proof in establishing that she was a refugee under 8 U.S.C. Sec. 1101(a)(42). The IJ found that Mati would be endangered if she returned to Serbia, but that the source of danger--a blood feud between Mati and the family of her first husband--was not a legally cognizable basis for asylum. As an alternative ground, the IJ denied Mati's application for asylum in the exercise of discretion.

Mati appealed the IJ's decision to the BIA. The BIA affirmed the IJ's ruling that Mati was ineligible for withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)(B). The BIA further held that Mati's conviction for manslaughter rendered her ineligible for asylum under 8 C.F.R. Sec. 208.14(c)(1). This petition for review followed.

DISCUSSION

Mati argues that: (i) the relevant asylum regulation, 8 C.F.R. Sec. 208.14(c)(1), violates the INA because it exceeds the enabling statute and circumvents the exercise of discretion prescribed by the INA, (ii) the BIA erred in finding that Mati had been convicted of a "particularly serious crime" under both the asylum regulation, 8 C.F.R. Sec. 208.14(c)(1), and the withholding of deportation statute, 8 U.S.C. Sec. 1253(h)(2)(B), and further erred by failing to consider separately whether Mati was a "danger to the community," and (iii) the relevant statutes and regulation contravene the United States' obligations under international treaty law and constitute a denial of due process of law. Because we believe the challenged regulation to be valid and must defer to the interpretation of the INA adopted by the BIA, we deny the petition.

A. Validity of 8 C.F.R. Sec. 208.14(c)(1)

The pertinent regulation concerning asylum, 8 C.F.R. Sec. 208.14(c)(1), states that, "An application for asylum shall be denied if ... [t]he alien, having been convicted by a final judgment of a particularly serious crime in the United States, constitutes a danger to the community." The regulation implements 8 U.S.C. Sec. 1158, which provides, in relevant part:

(a) Establishment by Attorney General; coverage

The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee....

* * * * * *

(d) Aliens convicted of aggravated felony

An alien who has been convicted of an aggravated felony, notwithstanding subsection (a) of this section, may not apply for or be granted asylum.

8 U.S.C. Sec. 1158(a), (d). Mati contends that the regulation's denial of asylum to aliens who have been convicted of a "particularly serious crime" exceeds the scope of 8 U.S.C. Sec. 1158(d), which bars asylum only for aliens who have been convicted of an "aggravated felony." Mati's conviction for manslaughter is not considered an "aggravated felony" ³ but was considered a "particularly serious crime" by the BIA. Mati contends also that the INS is obligated to exercise its discretion in considering each and every asylum application and that the regulation impermissibly permits the INS to circumvent this obligation.

We must give substantial deference to administrative tribunals in their interpretations of statutory law. Osorio v. INS, 18 F.3d 1017, 1022 (2d Cir.1994). However, Mati argues that the asylum regulation is contrary to congressional intent as expressed in the more limited language of the statute and therefore is not entitled to judicial deference. See Perales v. Thornburgh, 967 F.2d 798, 809 (2d Cir.1992), vacated on other grounds, --- U.S. ----, 113 S.Ct. 3027, 125 L.Ed.2d 716 (1993). In reviewing an agency's regulation,

[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue ... the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted).

We agree that the category of "particularly serious crimes" referred to in the regulation is broader than the class of "aggravated felon[ies]" defined in the statute. However, we do not believe that Congress's specific reference to "aggravated felon[ies]" in subsection (d) of the statute limits the agency's power under subsection (a) to impose a higher standard on asylum seekers. See Garcia v. INS, 7 F.3d 1320, 1326 (7th Cir.1993) (In amending the INA to add the provision concerning aggravated felons, "Congress' intention to increase the number of crimes that automatically bar eligibility for relief can scarcely be questioned.") (emphasis added). Subsection (a) of the statute confers broad discretion on the Attorney General to "establish a procedure" for an alien to apply for asylum. Thus, Congress "has explicitly left a gap for the agency to fill," and there was "an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation." Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2782. "Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Id. at 844, 104 S.Ct. at 2782. Applying this standard, we cannot conclude that the regulation inappropriately exceeds the scope of the statute or constitutes an impermissible interpretation of the statute.

B. Conviction of a "particularly serious crime" and "danger to the community"

Mati argues that the BIA erred in applying the regulation concerning asylum, 8 C.F.R. Sec. 208.14(c)(1), as well as the relevant statute concerning withholding of deportation, 8 U.S.C. Sec. 1253(h)(2)(B). At issue is the BIA's determination that Mati was convicted of a "particularly serious crime." The withholding of deportation statute, which is similar to the asylum regulation, 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." Id. Mati contends that the BIA erred by failing to consider the underlying circumstances of her conviction for manslaughter before finding that she had been convicted of a "particularly serious crime" and by failing to make a separate determination as to whether she constituted a "danger to the community."

The BIA determined that first degree manslaughter is a "particularly serious crime" per se and declined to examine the circumstances and events that led to Mati's guilty plea. Mati contends that the BIA should have conducted a broad inquiry into the facts underlying her conviction in order to determine whether the crime was "particularly serious." She cites In re Frentescu, 18 I. & N. Dec. 244 (BIA 1982), to support her contention. However, Frentescu plainly acknowledges that certain crimes are per se "particularly serious" and do not require in-depth analysis: "[T]here are crimes which, on their face, are 'particularly...