Matter of U----M----

• Court: U.S. DOJ Board of Immigration Appeals
• Citation: Matter of U----M----, 20 I&N Dec. 327 (B.I.A. 1991)
• Decision Date: 05 June 1991
• Docket Number: Interim Decision Number 3152,A-29202816.
• Parties: MATTER OF U----M---- In Deportation Proceedings

20 I&N Dec. 327

MATTER OF U----M----

In Deportation Proceedings

Interim Decision Number 3152

A-29202816.

Board of Immigration Appeals.

Decided by Board June 5, 1991.

(1) By federal statute, aggravated felonies and, correspondingly, drug trafficking crimes, are per se particularly serious crimes.

(2) The respondent in deportation proceedings has been convicted of particularly serious crimes, i.e., convictions for the sale of marihuana and lysergic acid diethylamide (LSD) and, therefore, by operation of law, he is ineligible for asylum pursuant to 8 C.F.R. § 208.14(c)(1) (1991) and for withholding of deportation under section 243(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(h)(2)(B) (West Supp. 1991), and 8 C.F.R. § 208.16(c)(2)(ii) (1991).

(3) The asylum regulations found at 8 C.F.R. §§ 208.1-.24 (1991) are applicable to the respondent's applications for asylum and withholding of deportation received by the Office of the Immigration Judge on November 14, 1990, since these regulations apply to applications filed on or after October 1, 1990, as provided by 8 C.F.R. § 208.1(a) (1991).

(4) The statutory bar to asylum for an alien convicted of an aggravated felony, set forth in section 515(a)(1) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5053 (enacted November 29, 1990), amending section 208 of the Act, 8 U.S.C. § 1158 (1988), does not apply to the respondent's asylum application, where section 515(b)(1) of the 1990 Act, 104 Stat. at 5053, provides that this statutory bar "shall apply to applications for asylum made on or after the date of the enactment of this Act," and the respondent made his application for asylum with the immigration judge on November 14, 1990, approximately 2 weeks before the enactment date.

(5) The amendment to section 243(h)(2)(B) of the Act, providing that an alien convicted of an aggravated felony shall be considered to have committed a particularly serious crime, is effective on the date of enactment of the Immigration Act of 1990, 104 Stat. at 4978 (enacted November 29, 1990), where the 1990 Act is silent as to the effective date of the amendment, and in the absence of an express provision to the contrary, an act of Congress takes effect on its date of enactment.

(6) Where new statutory provisions affecting eligibility for relief from deportation come into effect during the pendency of a deportation hearing or an administrative appeal to this Board, and there exists no statutory directive to the contrary, the new statutory provisions shall be applied to the application for relief before us, and the application may be denied on the basis of the statutory amendment.

CHARGE:

Order: Act of 1952 — Sec. 241(a)(4)(B) [8 U.S.C. § 1251(a)(4)(B)] — Convicted of aggravated felony

Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)] — Convicted of controlled substance violation

Lodged: Act of 1952 — Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)] — Entered without inspection

ON BEHALF OF RESPONDENT: Pro se.

ON BEHALF OF SERVICE: Christopher Stender General Attorney.

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members.

In a decision dated January 18, 1991, an immigration judge found the respondent deportable as charged under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1988), as an alien who had entered the United States without inspection, under section 241(a)(4)(B) of the Act as an alien convicted of an aggravated felony, and under section 241(a)(11) of the Act as an alien convicted of a controlled substance violation. In his decision, the immigration judge also denied the respondent's applications for asylum and withholding of deportation under sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1988), respectively, and ordered the respondent deported from the United States to Uruguay, and alternatively to El Salvador if Uruguay would not accept him. The respondent has appealed from that decision. The appeal will be dismissed.

The respondent, a native and citizen of El Salvador, was convicted in a California court on November 14, 1986, of the crime of sale or transportation of marihuana, a felony, in violation of section 11360(a) of the California Health and Safety Code. For this crime he was granted a 3-year period of probation, the conditions of which required him to serve 90 days in jail and pay $100 to a restitution fund. He was also convicted in a California court on December 13, 1988, of the crime of sale of a controlled substance, namely lysergic acid diethylamide ("LSD"), a felony, in violation of section 11379 of the California Health and Safety Code. He was granted probation for a period of 3 years, the conditions of which included serving 180 days in jail, paying a fine of $100, and paying restitution of $100. On July 19, 1989, probation for these two crimes was revoked on the basis that the respondent was in violation of probation. He was sentenced to 3 years' imprisonment for the 1988 conviction and 2 years' imprisonment for the 1986 conviction, with the sentences to run concurrently. During the deportation proceedings, the respondent testified that his probation was revoked in lieu of filing charges after he was arrested in June 1989 for sale of marihuana. The respondent also admitted having entered the United States without inspection in July 1981. The Board of Immigration Appeals finds that the respondent's deportability has been established by clear, unequivocal, and convincing evidence, as required by Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R. § 242.14(a) (1991).

The immigration judge denied the respondent's applications for asylum and withholding of deportation on the basis that he had been convicted of a particularly serious crime and was thus ineligible for either asylum or withholding of deportation under the new asylum regulations. See 8 C.F.R. §§ 208.1-.24 (1991). These regulations apply to asylum applications filed on or after October 1, 1990. 8 C.F.R. § 208.1(a) (1991). The respondent's application was received by the Office of the Immigration Judge on November 14, 1990. Under these regulations, an application for withholding of deportation shall be denied if "the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." 8 C.F.R. § 208.16(c)(2)(ii) (1991). This language parrots the statutory bar to withholding of deportation found in section 243(h)(2)(B) of the Act. Thus, by statute and by the regulation, the respondent is ineligible for withholding of deportation if convicted of a particularly serious crime. Additionally, the respondent's application for asylum shall be denied if "the alien, having been convicted of a final judgment of a particularly serious crime in the United States, constitutes a danger to the community." 8 C.F.R. § 208.14(c)(1) (1991).¹

In the case before us, the respondent has been convicted of sale or transportation of marihuana in 1986, and sale of a controlled substance, namely LSD, in 1988. This Board has previously held that an alien convicted of trafficking in drugs has been convicted of a particularly serious crime, representing criminal behavior which constitutes a danger to the community. Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988) (convicted of possession of a controlled substance, to wit: heroin, with intent to deliver). The case now before us arose within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, which itself noted that it had ratified the Board's consistent view that convictions for drug possession and trafficking are particularly serious within the meaning of section 243(h)(2)(B). Ramirez-Ramos v. INS, 814 F.2d 1394 (9th Cir. 1987); see also Mahini v. INS, 779 F.2d 1419 (9th Cir. 1986) (possession with intent to distribute heroin constitutes a particularly serious crime). If an alien has been convicted of a particularly serious crime, it is not required that there be a separate and distinct finding that he constitutes a danger to the community, because once a finding of a particularly serious crime is made, it necessarily follows that the alien is a danger to the community. Ramirez-Ramos v. INS, supra; Matter of Carballe, 19 I&N Dec. 357 (1986), modified on other grounds, Matter of Gonzalez, supra.

The record in most proceedings will have to be analyzed on a case-by-case basis to determine whether the conviction is for a particularly serious crime. This analysis involves such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and most importantly, whether the type and circumstances of the crime indicate that an alien will be a danger to the community. Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), modified on other grounds, Matter of Gonzalez, supra. However, some crimes are inherently particularly serious, requiring no further inquiry into the nature and circumstances of the underlying conviction. Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986), modified on other grounds, Matter of Gonzalez, supra; Matter of Carballe, supra; Matter of Frentescu, supra.

We find that the crime of trafficking in drugs is inherently a particularly serious crime. The harmful effect to society from drug offenses has consistently been recognized by Congress in the clear distinctions and disparate statutory treatment it has drawn between drug offenses and other crimes. Matter of Gonzalez, supra. Illicit narcotic drugs sold in the United States ruin or destroy the lives of many American citizens each year. Apart from the considerable number of people in this country who die of overdoses of narcotics or who become the victims of homicides related to the unlawful traffic of drugs, many others become disabled by addiction to heroin, cocaine, and other drugs. There are also many in this country who suffer crimes against...