In re Y---- L----
| Decision Date | 05 March 2002 |
| Docket Number | Interim Decision Number 3464 |
| Citation | 23 I&N Dec. 270 |
| Parties | In re Y---- L---- In re A---- G---- In re R---- S---- R---- |
| Court | U.S. DOJ Board of Immigration Appeals |
By previous Order, I directed the Board of Immigration Appeals ("BIA") to refer the above-captioned cases to me for review pursuant to 8 C.F.R. § 3.1(h)(1)(i) (2001). In three separate opinions, the BIA ordered that the respondents' removal from the United States be withheld under the provisions of section 241 of the Immigration and Nationality Act ("INA"). For the reasons set forth below, I now reverse the decisions of the BIA and hold that the respondents, having each been convicted of a "particularly serious crime" within the meaning of the INA, pose a danger to the community of the United States and are thus ineligible for withholding of removal.1 See INA § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii) (2000). I further conclude that the purported threats of torture claimed by the respondents if removed to their countries of origin do not satisfy the criteria for granting them deferral of removal.2 See 8 C.F.R. § 208.17.
The three respondents in this consolidated matter are foreign nationals who bear final judgments of conviction for felony drug trafficking offenses in the United States. Specifically, Y---- L---- was convicted in the Martin County, Florida Circuit Court of trafficking in cocaine and resisting an officer with violence, in violation of Fla. Stat. Ann. §§ 893.135, 843.01 (West 2000 & Supp. 2002). Although he was sentenced to just 25 months of incarceration, his drug offense was a first-degree felony under Florida law, punishable by up to 30 years' imprisonment. A---- G---- was convicted in the United States District Court for the District of Delaware on three felony counts involving large quantities of cocaine: two counts of distribution of cocaine, and one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841, 846. He received concurrent sentences of one year and a day on each count. R---- S---- R---- pled guilty in federal court in the District of Puerto Rico to one felony count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. The court sentenced him to 24 months of incarceration.
As a result of the respondents' aggravated felony convictions,3 the Immigration and Naturalization Service ("INS") commenced removal proceedings against them. See INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (). The respondents, claiming that their lives and/or freedom would be severely imperiled upon deportation to their countries of origin, petitioned for withholding of removal under both INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and Article 3 of the Convention Against Torture And Other Cruel, Inhuman, or Degrading Treatment or Punishment ("Convention Against Torture"),4 8 C.F.R. § 208.16 et seq. The INS opposed these requests, arguing that the respondents were statutorily ineligible for such withholding by virtue of their convictions for "particularly serious crimes." See INA § 241(b)(3)(B)(ii); 8 C.F.R. § 208.16(d)(2).
Although two of the three respondents were denied all relief by immigration judges,5 the BIA on appeal held that all three were entitled to withholding of removal under section 241 of the INA. Invoking its decision in In re S---- S----, Interim Decision 3374, 1999 WL 38822 (BIA Jan. 21, 1999), the BIA in each case held that the aggravated drug trafficking felonies committed by respondents did not constitute "particularly serious crimes" for purposes of INA § 241(b)(3)(B)(ii). In reaching this conclusion, the BIA emphasized such factors as the respondents' cooperation with federal authorities in collateral investigations, their limited criminal history records, and the fact that they were sentenced at the low-end of the applicable sentencing guideline ranges. The BIA also determined that the respondents had each demonstrated a probability of persecution or torture if returned to their countries of origin.
Section 241(b)(3)(A) of the INA dictates that "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." This restriction does not apply, however, 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." INA § 241(b)(3)(B)(ii) (emphasis added).6 The resolution of these cases turns on whether each of the respondents was convicted of a "particularly serious crime" within the meaning of section 241(b)(3)(B)(ii).
Although the INA itself does not define the term "particularly serious crime," pertinent textual guidance is found in the final clause of section 241(b)(3), which provides, in relevant part:
For purposes of [section 241(b)(3)(B)(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.
This provision establishes that aliens convicted of aggravated felonies and sentenced to at least five years of imprisonment are automatically deemed to have committed a "particularly serious crime." With respect to aggravated felony convictions for which a lesser sentence has been imposed, however, Congress explicitly empowered the Attorney General to make the relevant determination. Prior to today, the Attorney General has had no occasion to consider which aggravated felonies might amount to "particularly serious crimes" where the prison sentence imposed upon conviction is less than five years. Operating in this void, the BIA has seen fit to employ a case-by-case approach, applying an individualized, and often haphazard, assessment as to the "seriousness" of an alien defendant's crime. See In re S---- S----, supra. Not surprisingly, this methodology has led to results that are both inconsistent and, as plainly evident here, illogical.
According to the BIA, the 1996 INA amendments in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 — which eliminated a provision declaring that all aggravated felonies are "particularly serious crimes"7 — reflected Congress' desire to replace classifications based on the "category or type of crime that resulted in the conviction" with classifications "based on the length of sentence imposed." See In re S---- S----, supra. I do not concur. The BIA's interpretation of these amendments places far too much weight on the first sentence of section 241(b)(3)'s final clause (the mandatory designation) and far too little weight on the final clause's second sentence (the grant of discretionary authority to the Attorney General). The fact that Congress designated as per se "particularly serious" every aggravated felony resulting in a term of incarceration of at least five years hardly reflects an intent to subordinate the nefarious or harmful character of a crime to mere secondary consideration, let alone remove it from the equation. While the imposition of certain harsh sentences may obviate the need to probe the underlying circumstances of a particular crime, the discretionary authority reserved to the Attorney General with respect to offenses from which less severe sentences flow is clearly intended to enable him to emphasize factors other than length of sentence.8
Exercising that authority under the INA, it is my considered judgment that aggravated felonies involving unlawful trafficking in controlled substances presumptively constitute "particularly serious crimes" within the meaning of section 241(b)(3)(B)(ii). Only under the most extenuating circumstances that are both extraordinary and compelling would departure from this interpretation be warranted or permissible.9
Both the courts and the BIA have long recognized that drug trafficking felonies equate to "particularly serious crimes" in this context. In Mahini v. INS, 779 F.2d 1419 (9th Cir. 1986), for example, the Ninth Circuit upheld the BIA's determination that an alien's conviction for possession of heroin with intent to distribute, and aiding and abetting the distribution of heroin constituted a "particularly serious crime" within the meaning of...
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