In re Q-T-M-T-

• Decision Date: 23 December 1996
• Docket Number: Interim Decision No. 3300.
• Citation: 21 I&N Dec. 639
• Parties: In re Q-T-M-T-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

21 I&N Dec. 639

In re Q-T-M-T-, Respondent.

Interim Decision No. 3300.

Board of Immigration Appeals.

Decided December 23, 1996.

(1) Under section 243(h)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1994), an alien convicted of an aggravated felony is considered to have committed a particularly serious crime, which bars the alien from applying for withholding of deportation under section 243(h)(1) of the Act ("aggravated felony bar").

(2) Under section 243(h)(3) of the Act (to be codified at 8 U.S.C. § 1253(h)(3)), as enacted by section 413(f) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (enacted Apr. 24, 1996) ("AEDPA"), the Attorney General may apply section 243(h)(1) of the Act to any alien, notwithstanding any other provision of law, if she determines in her discretion that it is necessary to do so "to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees," Jan. 31, 1967, 1968 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268 ("Protocol").

(3) Section 243(h)(3) of the Act did not repeal the aggravated felony bar directly or by implication, but amended it to the limited extent necessary to ensure that refoulement of a particular criminal alien would not place compliance with the Protocol in jeopardy.

(4) Under the provisions of section 305(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-597 (effective Apr. 1, 1997) ("IIRIRA"), an alien convicted of one or more aggravated felonies for which the aggregate sentence is at least 5 years is considered to have committed a particularly serious crime, which bars the alien from eligibility for withholding of removal.

(5) In cases governed by the provisions of section 243(h) of the Act, the standards for determining whether the deportation of an alien convicted of an aggravated felony, as defined in the AEDPA, must be withheld under section 243(h)(1) in order to ensure compliance with the Protocol should not be inconsistent with the relevant provisions of the IIRIRA.

(6) For purposes of applying section 243(h) of the Act, an alien who has been convicted of an aggravated felony, as defined in the AEDPA, and sentenced to an aggregate of at least 5 years' imprisonment, is deemed conclusively barred from relief under section 243(h)(1), and such ineligibility is in compliance with the Protocol.

(7) For purposes of applying section 243(h) of the Act, an alien convicted of an aggravated felony, as defined in the AEDPA, who has been sentenced to less than 5 years' imprisonment, is subject to a rebuttable presumption that he or she has been convicted of a particularly serious crime, which bars eligibility for relief under section 243(h)(1) of the Act.

(8) For purposes of applying section 243(h) of the Act, in determining whether or not a particular aggravated felon, as defined in the AEDPA, who has not been sentenced to at least 5 years' imprisonment, has overcome the presumption that he or she has committed a

particularly serious crime, consistent with the meaning of that term in the Protocol, the appropriate standard is whether there is any unusual aspect of the alien's particular aggravated felony conviction that convincingly evidences that the crime cannot rationally be deemed "particularly serious" in light of treaty obligations under the Protocol.

(9) Although the respondent's convictions for "illicit trafficking in firearms" fall within the aggravated felony definition of the AEDPA and he has been sentenced to less than 5 years' imprisonment, the nature and circumstances of the convictions are such that overriding the aggravated felony bar in this case is not necessary to ensure the United States' compliance with the Protocol.

FOR RESPONDENT: R. Travis Douglas, Esquire, Fort Smith, Arkansas.

AMICUS CURIAE FOR AILA: Amy Marmer Nice, Esquire, Washington, D.C.¹

AMICUS CURIAE FOR FAIR: Timothy J. Cooney, Esquire, Washington, D.C.¹

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Richard J. Averwater, Assistant District Counsel.

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring and Dissenting Opinion: ROSENBERG, Board Member.

HOLMES, Board Member.

In a decision issued on March 6, 1996, an Immigration Judge found the respondent deportable and statutorily ineligible for asylum and withholding of deportation. The respondent, through counsel, has timely appealed from that decision, challenging only the Immigration Judge's determination that his "aggravated felony" conviction necessarily constitutes a conviction for a "particularly serious crime," thus barring the respondent from establishing eligibility for withholding of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 243(h) (1994). We find that the respondent has been finally convicted of a "particularly serious crime" and is ineligible for withholding of deportation. Accordingly, the appeal will be dismissed.

I. BACKGROUND

The respondent is a 23-year-old native and citizen of Vietnam who entered the United States as an immigrant on or about March 13, 1991. On September 27, 1994, the respondent was convicted, in the United States District Court for the Northern District of Georgia, of, inter alia, conspiracy to deal in firearms without a license in violation of 18 U.S.C. §§ 371 and 922(a)(1)(A) (1994) and 26 U.S.C. §§ 5812 and 5861(e) (1994). He was sentenced to a term of imprisonment of 36 months for this offense.

A. Proceedings Below

Following the March 6, 1996, deportation hearing, the Immigration Judge concluded that the respondent was deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien who at any time after entry into the United States has been convicted of an "aggravated felony," as defined in section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1994).² The respondent thereupon applied for asylum and withholding of deportation under sections 208(a) and 243(h)(1) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h)(1) (1994).

The Immigration Judge properly held that the respondent, by virtue of his final conviction in the United States of an "aggravated felony," was statutorily ineligible for asylum. See section 208(d) of the Act ("An alien who has been convicted of an aggravated felony . . . may not apply for or be granted asylum."). Further, and more importantly for purposes of this appeal, the Immigration Judge held that under section 243(h)(2) of the Act, the respondent's aggravated felony conviction constituted a conviction for a "particularly serious crime," barring the respondent from establishing eligibility for withholding of deportation.

B. Statutory Provisions

At the time of the March 1996 hearing before the Immigration Judge, section 243(h) of the Act provided in pertinent part:

(1) The Attorney General shall not deport or return any alien (other than an alien described in section 241(a)(4)(D)) to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that —

...

(B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States....

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.

On April 24, 1996, however, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (enacted Apr. 24, 1996) ("AEDPA"), which contained an array of provisions pertaining to alien terrorists and criminal aliens. Section 413(f) of the AEDPA, 110 Stat. at 1269, amended section 243(h) of the Act to include the following provision (3) Notwithstanding any other provision of law, paragraph (1) shall apply to any alien if the Attorney General determines, in the discretion of the Attorney General, that—

(A) such alien's life or freedom would be threatened, in the country to which such alien would be deported or returned, on account of race, religion, nationality, membership in a particular social group, or political opinion; and

(B) the application of paragraph (1) to such alien is necessary to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees.

(Emphasis added.) In section 413(g) of the AEDPA, 110 Stat. at 1269-70, Congress specified, "The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to applications filed before, on, or after such date if final action has not been taken on them before such date." (Emphasis added.)

Inasmuch as the respondent's application for withholding of deportation has not been finally adjudicated, section 243(h) of the Act, as amended to include section 243(h)(3), applies to his application.

We note that subsequent to the filing of the appeal in this case, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). This more recent statute provides that the restrictions on the removal of an alien to a country where the alien's life or freedom would be threatened do not apply to an alien who "having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." IIRIRA § 305(a), 110 Stat. at 3009-597 (to be codified as section 241(b)(3)(B)(ii) of the Act at 8 U.S.C. § 1251(b)(3)(B)(ii)). It further provides:

For the purposes of clause (ii), an alien who...