In re N-a-M-

• Decision Date: 24 October 2007
• Docket Number: Interim Decision No. 3588.
• Citation: 24 I&N Dec. 336
• Parties: In re N-A-M-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

24 I&N Dec. 336

In re N-A-M-, Respondent.

Interim Decision No. 3588.

Board of Immigration Appeals.

Decided October 24, 2007.

(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.

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 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 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 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...