Garcia v. I.N.S.

• Decision Date: 21 October 1993
• Docket Number: 92-3439,Nos. 92-4107,s. 92-4107
• Citation: 7 F.3d 1320
• Parties: Carlos B. GARCIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Jamal BARGHOUTI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1320

7 F.3d 1320

Carlos B. GARCIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Jamal BARGHOUTI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 92-4107, 92-3439.

United States Court of Appeals, Seventh Circuit.

Argued April 27, 1993.

Decided Oct. 21, 1993.

Meredith J. Ross, David D. Cook, Christopher Burke (argued), Legal Assistance to Institutionalized Persons University of Wisconsin Law School, Madison, WI, for Carlos B. Garcia.

Richard M. Evans (argued), Department of Justice, Office of Immigration Litigation, William P. Barr, Office of U.S. Atty. Gen., Washington, DC, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, for I.N.S. in No. 92-4107.

Carlina Tapia-Ruano, Chicago, IL (argued), for Jamal F. Barghouti.

Fred Foreman, U.S. Atty., Office of U.S. Atty., Crim. Div., Chicago, IL, Richard M. Evans (argued), William J. Howard, David J. Kline, Robert Kendall, Jr., Dept. of Justice Office of Immigration Litigation, Washington, DC, A.D. Moyer, Roger Piper, I.N.S., Chicago, IL, Emily Radford, I.N.S., Washington, DC, for I.N.S. in No. 92-3439.

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

These cases pose the question whether an alien, found deportable as an aggravated felon, is automatically barred from the relief of withholding of deportation without a determination of whether he constitutes a danger to the community. We join the three other circuits that have addressed the issue and hold that the alien is so barred.

I.

The pertinent facts of the two cases are similar. Carlos Garcia is a citizen of El Salvador. He entered the United States on March 5, 1981, and became a lawful permanent resident alien on May 24, 1990. A year later, he was convicted in Wisconsin of five counts of conspiring to deliver cocaine. He was sentenced to 57 months on each count, the sentences to run concurrently.

The Immigration and Naturalization Service (INS) instituted deportation proceedings against Garcia in early 1992. At his July, 1992 deportation hearing at Waupun Correctional Institution, Garcia conceded deportability under sections 241(a)(2)(B)(i) (conviction relating to a controlled substance) and 241(a)(2)(A)(iii) (conviction of an aggravated felony) of the Immigration and Nationality Act (INA). He sought relief from deportation in the form of asylum and withholding of deportation. The Immigration Judge determined that because Garcia had been convicted of an "aggravated felony," he was ineligible to apply for asylum or withholding of deportation. The Board of Immigration Appeals (BIA) dismissed the appeal.

Jamal Barghouti is a native of Jordan who entered the United States in 1977. He claims that he is now stateless, having been found guilty and sentenced to death in absentia for killing a member of King Hussein's elite guard during a bar fight in Chicago. (In this country, he was tried for that crime and found not guilty by virtue of self-defense.) Barghouti was convicted in 1985 of possession of a controlled substance and in 1988 of delivery of cocaine. A deportation hearing was held in December, 1991. The Immigration Judge decided that he was not eligible for asylum or withholding of deportation because of those convictions, and the BIA dismissed the appeal.

II.

The Refugee Act of 1980 established the basic framework for current refugee law. Under the Act, there are two forms of relief whereby an otherwise deportable alien may avoid deportation to a country in which he will face persecution. The first is asylum. See INA § 208, 8 U.S.C. § 1158. An alien granted asylum is permitted to remain in the United States and may even become eligible for permanent residence one year later. To qualify for asylum, the alien must establish that he has a "well-founded fear of persecution" if he returns to his home country. See id.; INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 1211, 94 L.Ed.2d 434 (1987). Even upon that showing, however, the Attorney General may, in her discretion, deny relief. See id. at 428 n. 5, 107 S.Ct. at 1211 n. 5.

The second form of relief, withholding of deportation, is a narrower remedy. See INA § 243(h), 8 U.S.C. § 1253(h). It saves an alien from forced repatriation to a particular country, but it does not preclude deportation if he would not face persecution elsewhere. To qualify for withholding of deportation, the alien must establish that he faces a "clear probability of persecution" if returned to his home country, see INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984), a more demanding standard than asylum requires. When an alien is able to make that showing, relief must be granted, unless the alien falls within one of the statutory bars to relief. The most important of those bars, for our purposes, is that withholding of deportation is unavailable 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." 8 U.S.C. § 1253(h)(2)(B).

In Matter of Carballe, 18 I. & N. Dec. 357 (BIA 1986), the BIA considered the question whether the latter exception requires two separate and distinct factual determinations--one to decide whether the alien has been convicted of a particularly serious crime, and another to determine whether he constitutes a danger to the community of the United States. Rejecting that interpretation, the BIA held that the two clauses are "inextricably related": a single finding that the alien has been convicted of a particularly serious crime is sufficient. "If it is determined that the crime was a 'particularly serious' one, the question of whether the alien is a danger to the community is answered in the affirmative." Id. at 360. Even before Carballe was decided, the Eleventh Circuit had reached the same conclusion. See Crespo-Gomez v. Richard, 780 F.2d 932, 934-35 (11th Cir.1986); see also Zardui-Quintana v. Richard, 768 F.2d 1213, 1222 (11th Cir.1985) (Vance, J., concurring in the result).

The Immigration Act of 1990, Pub.L. 101-649, 104 Stat. 4978 (1990) (IMMACT), created new restrictions on the availability of asylum and withholding of deportation for certain classes of aliens. In particular, these changes affected aliens convicted of "aggravated felonies," a category encompassing an assortment of crimes that include "any illicit trafficking in any controlled substance ..., including any drug trafficking crime as defined in section 924(c)(2) of Title 18 ... or any attempt or conspiracy to commit any such Act." 8 U.S.C. § 1101(a)(43) (1988 & Supp. II 1990). In the context of asylum, section 515 of IMMACT added a new subsection (d) to section 208 which provides that "[a]n alien who has been convicted of an aggravated felony, notwithstanding [any other provision], may not apply for or be granted asylum." Id. § 1158(d). Section 515 of IMMACT also amended the withholding of deportation provisions. Referring back to subparagraph (B) of section 243(h)(2), which precluded relief if "the alien, having been convicted of a particularly serious crime, constitutes a danger to the community of the United States," a new sentence was added stating:

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.

Id. § 1253(h)(2).

In light of the previous holding of Matter of Carballe, this last amendment raised the natural question whether the determination that an alien was convicted of an aggravated felony precluded that alien's eligibility for withholding of deportation without a further determination of dangerousness. In Matter of K--, Int.Dec. 3163 (BIA Nov. 5, 1991), the BIA answered in the affirmative. It began by presuming that Congress was aware of its prior construction of section 243(h)(2)(B) in Carballe. The BIA noted that IMMACT left the grammar of section 243(h)(2)(B) intact; it merely clarified or elaborated on the meaning of "particularly serious crime." It was also unpersuaded by the argument that Congress would have used the same unambiguous language from the asylum amendment if it had intended absolutely to preclude aggravated felons from receiving withholding of deportation. Given the existing Carballe interpretation of section 243(h)(2)(B), the BIA observed that it was far easier for Congress simply to build on that structure by providing that aggravated felonies are themselves particularly serious crimes, rather than creating a new independent bar based on conviction for an aggravated felony.

The BIA also rebuffed the argument that two separate factual determinations were necessary because it is unreasonable to believe that all aggravated felons will pose, indefinitely, a danger to the community. Matter of Carballe had indicated that the proper focus of section 243(h)(2)(B) is on "the serious nature of the crime and not on the likelihood of future serious misconduct on the part of the alien." Id. at 10. Matter of K-- also pointed out that consideration of an alien's rehabilitative potential seemed inconsistent with Congress' goal of streamlining procedures for the prompt deportation of aggravated felons. See, e.g., 8 U.S.C. § 1252(a)(2) (1988) (mandatory detention for aliens convicted of aggravated felonies who are not lawful permanent residents); id. § 1252(a)(3) (investigative resources for identifying and tracking alien aggravated felons); id. § 1252a(a) (expedited procedures for deportation of incarcerated criminal aliens). It concluded that Congress had taken a strong stand against aliens who commit aggravated felonies, and removal of eligibility for asylum and withholding of deportation were key elements of that approach. See also Matter of C--, Int.Dec. 3180 (BIA May 28, 1992).

III.

In each of the cases before us, the BIA followed its previous decision in Matter of K--. We must defer to the BIA's interpretation so long as...