Matter of C----

Decision Date28 May 1992
Docket NumberInterim Decision Number 3180,A-27265741.
Citation20 I&N Dec. 529
PartiesMATTER OF C----. In Deportation Proceedings.
CourtU.S. DOJ Board of Immigration Appeals

In a decision dated December 19, 1990, the immigration judge found the respondent deportable under section 241(a)(4)[(A)] of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)[(A)] (1988) as an alien convicted of a crime involving moral turpitude, and under section 241(a)(4)(B) of the Act as an alien convicted of an aggravated felony.1 The immigration judge further determined that, based on his conviction for an aggravated felony, the respondent was ineligible to apply for asylum and was barred from eligibility for withholding of deportation. The immigration judge ordered the respondent deported to Austria, with an alternate order of deportation to Romania. The respondent has appealed.2 The appeal will be dismissed. The respondent's request for oral argument before this Board is denied. 8 C.F.R. § 3.1(e) (1992).

The respondent is a male native and citizen of Romania whose status was adjusted to that of a lawful permanent resident on September 25, 1986. On September 19, 1989, the respondent was convicted in the 182nd District Court of Harris County, Texas, of murder committed on April 22, 1988. Based on the respondent's admissions at the deportation hearing and the conviction records submitted by the Immigration and Naturalization Service, the immigration judge found the respondent deportable on the charges set forth above. The respondent raises no challenge on appeal to the immigration judge's findings of deportability.

At the hearing on October 17, 1990, the respondent requested and was given an application for asylum. This application was not filed prior to November 29, 1990, the effective date of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. We agree with the immigration judge that, as an alien convicted of an aggravated felony, the respondent was no longer eligible for asylum beginning November 29, 1990. Section 208(d) of the Act, 8 U.S.C. § 1158(d) (Supp. II 1990), which was added by section 515(a)(1) of the Immigration Act of 1990, 104 Stat. at 5053, provides that an alien who has been convicted of an aggravated felony "may not apply for or be granted asylum." This bar applies to convictions entered before, on, or after November 29, 1990, and to applications for asylum made on or after that date. See section 515(b)(1) of the Immigration Act of 1990, 104 Stat. at 5053, as corrected by section 306(a)(13) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1752 (enacted Dec. 12, 1991). Furthermore, as an alien convicted of an aggravated felony, the respondent is considered to have committed a "particularly serious crime" for purposes of section 243(h)(2)(B) of the Act, 8 U.S.C. § 1253(h)(2)(B) (Supp. II 1990), and is therefore not eligible for withholding of deportation. Section 243(h)(2) of the Act, as amended by section 515(a)(2) of the Immigration Act of 1990, 104 Stat. at 5053; see also Matter of K----, 20 I&N Dec. 418 (BIA 1991); Matter of U---- M----, 20 I&N Dec. 327 (BIA 1991), aff'd, 989 F.2d 1085 (9th Cir. 1993). Section 515(a)(2) of the Immigration Act of 1990 applies to convictions entered before, on, or after November 29, 1990, and to applications for withholding of deportation made on or after that date. See section 515(b)(2) of the Immigration Act of 1990, 104 Stat. at 5053, as corrected by section 306(a)(13) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, 105 Stat. at 1752.

The respondent contends that he was unable to file his asylum application prior to November 29, 1990, because he was unable to understand some of the questions, he was not represented by counsel at that time, and no interpreter qualified to speak his native tongue was present at his October 17, 1990, hearing. He therefore asserts that his asylum application should be deemed constructively filed prior to November 29, 1990. The respondent's assertions are without merit. He did not request an asylum application until October 17, 1990, nor would it be the responsibility of the court interpreter to assist him in filing his application. There is no indication that the respondent was denied his right to counsel in deportation proceedings. See sections 242(b)(2), 292 of the Act, 8 U.S.C. §§ 1252(b), 1362 (1988); 8 C.F.R. §§ 3.15(b) (1992) (to be redesignated as 8 C.F.R. § 3.16(b), see 57 Fed. Reg. 11,571 (Apr. 6, 1992)); 3.36(d) (1992) (to be redesignated as 8 C.F.R. § 3.38(d), see 57 Fed. Reg. 11,571 (Apr. 6, 1992)); 242.2(c)(2); 242.2(d) (as revised at 57 Fed. Reg. 11,573 (Apr. 6, 1992)); 242.10; 242.16(a), (d); 292 (1992). Moreover, the respondent has not shown how he would ultimately benefit even if his application were to be deemed constructively filed on October 17, 1990. Under the regulations effective for asylum applications filed after October 1, 1990, the respondent, as an alien convicted of a particularly serious crime, is ineligible for asylum or withholding of deportation. 8 C.F.R. §§ 208.14(c)(1), 208.16(c)(2)(ii) (1992); cf. Matter of B----, 20 I&N Dec. 427 (BIA 1991).

The respondent contends that the "statutory equation" under section 243(h)(2) of the Act, as amended, between "aggravated felony" and "particularly serious crime" does not apply to this case because his conviction occurred before November 29, 1990. However, the technical amendments to the Immigration Act of 1990 made clear that the amendment of section 243(h)(2) by section 515(a)(2) of the Immigration Act of 1990 applies to convictions entered before, on, or after November 29, 1990, and to applications for withholding of deportation made on or after that date. See section 306(a)(13) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, 105 Stat. at 1752. The respondent's argument that application of this provision to his case contravenes the ex post facto clause of the Constitution is also without merit. Deportation proceedings are civil proceedings which are not considered punishment or a criminal process and, therefore, the ex post facto clause is not implicated. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982). Moreover, it is settled that the immigration judge and this Board lack jurisdiction to rule upon the constitutionality of the Act and the regulations. See section 103 of the Act, 8 U.S.C. § 1103 (1988); 8 C.F.R. § 3.1 (1992); Bagues-Valles v. INS, 779 F.2d 483 (9th Cir. 1985); Dastmalchi v. INS, 660 F.2d 880 (3d Cir. 1981); Matter of Valdovinos, supra; Matter of Cortez, 16 I&N Dec. 289 (BIA 1977).

The respondent contends that the immigration judge should have made an inquiry into whether the respondent pleaded guilty to murder voluntarily and with the proper advice and assistance of counsel. The immigration judge and this Board cannot entertain a collateral attack on a judgment of conviction unless that judgment is void on its face and cannot go behind the judicial record to determine the guilt or innocence of the alien. Matter of Fortis, 14 I&N Dec. 576, 577 (BIA 1974); see also Trench v. INS, 783 F.2d 181 (10th Cir.), cert. denied, 479 U.S. 961 (1986); Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir. 1985); Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981) (per curiam); Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. 1980) (foreign conviction); Longoria-Castenada v. INS, 548 F.2d 233 (8th Cir.), cert. denied, 434 U.S. 853 (1977); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); Matter of Danesh, 19 I&N Dec. 669 (BIA 1988); Matter of Khalik, 17 I&N Dec. 518 (BIA 1980). In addition, a majority of the circuit courts, including the United States Court of Appeals for the Fifth Circuit in which this case arises, have held that the fact that a defendant is not advised of the collateral immigration consequences of his plea does not amount to a denial of due process which would vitiate the plea. Santos v. Kolb, 880 F.2d 941 (7th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); United States v. Nino, 878 F.2d 101 (3d Cir. 1989); United States v. Yearwood, 863 F.2d 6 ...

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