Matter of Frentescu
| Decision Date | 23 June 1982 |
| Docket Number | Interim Decision Number 2906,A-23364219 |
| Citation | 18 I&N Dec. 244 |
| Parties | MATTER OF FRENTESCU In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In an oral decision on June 9, 1981, the immigration judge found the applicant excludable under section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9), as an alien who had been convicted of a crime involving moral turpitude, denied his applications for asylum and withholding of deportation, and ordered that he be excluded and deported from the United States. The applicant has appealed from the denial of asylum and withholding of deportation. The record will be remanded.
The applicant, a 27-year-old single male alien, is a native and citizen of Romania. He was indefinitely paroled into the United States on April 9 1980, pursuant to section 212(d)(5) of the Act. On November 20, 1980, he was convicted in the Circuit Court of Cook County, Illinois, of burglary, in violation of Chapter 38, section 19-1 of the Illinois Revised Statutes.1 He was sentenced to time served (3 months) and was placed on probation for one year.
At his hearing, the applicant, through counsel, admitted that he had been convicted of the crime of burglary in Illinois. Burglary with intent to commit theft is a crime involving moral turpitude. See Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981); Matter of Leyva, 16 I&N Dec. 118 (BIA 1977); Matter of Scarpulla, 15 I&N Dec. 139 (BIA 1974). Thus, the applicant was properly found excludable under section 212(a)(9) of the Act.
Because the applicant submitted an application for asylum at the initial hearing, the hearing was adjourned in order to obtain the Department of State's advisory opinion. This opinion, in pertinent part, advises as follows:
In our view, the likelihood of persecution upon return to Romania was established when Mr. Frentescu was granted refugee status and paroled into the United States in 1980. Since that time, conditions have not changed in Romania and the forcible return of Mr. Frentescu to that country would most likely entail serious consequences, such as imprisonment, for him.
The immigration judge considered the Department of State's letter but found that the applicant was ineligible for asylum because he had been convicted of burglary, a serious crime involving moral turpitude. The immigration judge added that he would deny asylum, as a matter of discretion, because the applicant had committed a crime involving moral turpitude while in the country that gave him refuge.
The only issue on appeal is whether the immigration judge properly denied the applicant's request for asylum and withholding of deportation. The applicant contends that his conviction for burglary does not bar him from eligibility for asylum inasmuch as burglary is not a "particularly serious crime" and, even if it is, he is not a danger to the community.
Withholding of deportation as well as asylum is not 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." Section 243(h)(2)(B) of the Act; 8 C.F.R. 208.8(f)(iv).
In order to determine whether the applicant in this proceeding is eligible for relief, we first must ascertain the meaning of "particularly serious crime" as used in the Immigration and Nationality Act. Although the specific language chosen by Congress reflects that a "particularly serious crime" is more serious than a "serious nonpolitical crime," neither the Act nor the pertinent legislative history,2 the 1967 Protocol Relating to the Status of Refugees,3 or the Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) specifically defines a "particularly serious crime." In fact, the only definition of crime, found in the Handbook, is the definition of a "serious nonpolitical crime," which is as follows:
What constitutes a "serious" non-political crime for the purposes of this exclusion clause is difficult to define, especially since the term "crime" has different connotations in different legal systems. In some countries the word "crime" denotes only offences of a serious character. In other countries it may comprise anything from petty larceny to murder. In the present context, however, a "serious" crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1 F (b)4 even if technically referred to as "crimes" in the penal law of the country concerned.5
A refugee committing a serious crime in the country of refuge is subject to due process of law in that country. In extreme cases, Article 33 paragraph 2 of the Convention permits a refugee's expulsion or return to his former home country if, having been convicted by a final judgement of a "particularly serious" common crime, he constitutes a danger to the community of his country of refuge.6
The concept of a "particularly serious crime" is one that is of first impression before this Board. No definition or interpretation of a "particularly serious crime" is contained in the Act, the Protocol, or the Handbook. The term is not analogous to any of the crimes specified in the Act.7 We note that when Congress classified crimes within sections 212 and 242 of the Act, no reference was made to a "particularly serious crime." No administrative history or case law has been presented before this Board defining or otherwise interpreting "particularly serious crime." Thus, we cannot set forth an exact definition of a "particularly serious crime" at this time. However, there are certain attributes of this concept which can be characterized in general terms. At the outset, it should be clear that a "particularly serious crime" is not...
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