Ramirez-Ramos v. I.N.S.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before TANG, SCHROEDER and NORRIS; TANG
• Citation: Ramirez-Ramos v. I.N.S., 814 F.2d 1394 (9th Cir. 1987)
• Decision Date: 15 April 1987
• Docket Number: RAMIREZ-RAMO,No. 86-7163,P,86-7163
• Parties: Santos Higinioetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Page 1394

814 F.2d 1394

87 A.L.R.Fed. 639

Santos Higinio RAMIREZ-RAMOS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 86-7163.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 13, 1986.

Decided April 15, 1987.

David F. Mainland, San Francisco, Cal., for petitioner.

Joe Ciolino, Washington, D.C., for respondent.

Petition for Review of Decision of the Board of Immigration Appeals.

Before TANG, SCHROEDER and NORRIS, Circuit Judges.

TANG, Circuit Judge:

Ramirez-Ramos petitions for review of the Bureau of Immigration Appeals' (BIA or Board) dismissal of his appeal from the Immigration Judge's (IJ) denial of his application for withholding of deportation pursuant to 8 U.S.C. Sec. 1253(h). As an ex-union leader and activist in anti-government organizations in El Salvador, Ramirez argues he has shown a clear probability of persecution on account of his political opinions and affiliations. The BIA denied his application because his California state court conviction of selling heroin rendered him statutorily ineligible for the relief sought. 8 U.S.C. Sec. 1253(h)(2)(B). We deny the petition for review.

BACKGROUND

Ramirez, a native and citizen of El Salvador, entered the United States without inspection on September 19, 1983. On January 9, 1985, he was convicted in the Superior Court of the State of California for the County of San Francisco on a charge of selling heroin in violation of Cal. Health & Safety Code Sec. 11352. He was sentenced to one year of probation on the condition that he serve one year in the county jail. Ramirez served eight months of that term of incarceration. The California Court of Appeals affirmed his conviction on January 9, 1986, and on March 18, 1986, the California Supreme Court denied his petition for review.

The Immigration and Naturalization Service (INS) commenced deportation proceedings against Ramirez by the issuance of an order to show cause dated June 17, 1985, charging that he was deportable pursuant to 8 U.S.C. Sec. 1251(a)(11), in light of his conviction for selling heroin. On August 21, 1985, INS lodged an additional charge of deportability, alleging that Ramirez was deportable pursuant to 8 U.S.C. Sec. 1251(a)(2), for entering the United States without inspection. At his August 28, 1985 deportation hearing, Ramirez admitted the allegations in the order to show cause relative to the charge of entry without inspection and conceded his deportability on that ground. He declined to designate the country of deportation, whereupon the IJ designated El Salvador. The IJ continued the case for a hearing on the merits of Ramirez's applications for asylum, withholding of deportation and voluntary departure and held that hearing on November 26, 1985.

In a decision dated December 6, 1985, the IJ found Ramirez to be deportable on the ground of entry without inspection, and denied his applications for asylum, withholding of deportation and voluntary departure. The IJ rejected Ramirez's asylum and withholding applications because he did not believe Ramirez had established a well-founded fear or a clear probability of persecution. The IJ found Ramirez to be statutorily ineligible for voluntary departure because he could not as a matter of law establish the good moral character required by 8 U.S.C. Sec. 1254(e) since he had served more than 180 days in jail as the result of a conviction. See 8 U.S.C. Sec. 1101(f)(7). The IJ further stated that he would, in any event, deny voluntary departure as a matter of discretion due to the serious nature of petitioner's conviction.

The BIA dismissed Ramirez's appeal in a decision dated March 20, 1986. The Board upheld the IJ's finding of deportability, and then turned to consideration of Ramirez's various requests for relief. As to voluntary departure, the Board, citing 8 U.S.C. Secs. 1101(f)(3), (8) and 1182(a)(23), found that Ramirez was statutorily barred from establishing good moral character because of his narcotics conviction and subsequent confinement.

As to asylum and withholding, the Board noted that pending the appeal, Ramirez's conviction for selling heroin had been affirmed by the California Court of Appeals and was thus final for immigration purposes. The Board found that the alien's heroin trafficking conviction made him statutorily ineligible for withholding of deportation under section 243(h)(2)(B) of the Refugee Act of 1980, 8 U.S.C. Sec. 1253(h)(2)(B), and warranted a determination that he would not merit a discretionary grant of asylum, even if eligible. The Board rejected Ramirez's arguments that: (1) section 243(h)(2)(B) requires two separate and distinct findings that he had committed a particularly serious crime and that he constituted a danger to the community of the United States; and (2) in determining the seriousness of a crime under section 243(h)(2)(B), the degree of persecution threatened must be considered.

ANALYSIS

Ramirez's petition does not require that we consider the merits of his applications for asylum, withholding of deportation or voluntary departure. We must determine only whether the BIA's interpretation of section 243(h)(2)(B) of the Refugee Act of 1980, 8 U.S.C. Sec. 1253(h)(2)(B), is reasonable, and whether that provision has been properly applied to deny Ramirez relief from deportation. We review these questions of law de novo but with deference to the BIA's interpretation of the statute. Mahini v. INS, 779 F.2d 1419, 1420 (9th Cir.1986). Ramirez argues that the BIA erred in failing to see that the statute requires a two step determination of (1) conviction of a particularly serious crime and (2) future dangerousness to the community. Ramirez also contends that section 243(h)(2)(B) requires the BIA to weigh the seriousness of the crime of which an alien is convicted against the degree of persecution he is likely to suffer in determining his eligibility for relief. We address each argument in turn. ¹

A. Two Step Finding

Section 243(h)(2)(B) enumerates one of the exceptions to withholding of deportation relief. While withholding is available to an alien whose life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, 8 U.S.C. Sec. 1253(h)(1), the relief is not available:

(2) ... 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.

8 U.S.C. Sec. 1253(h)(2)(B).

There is no question that this circuit has ratified the BIA's consistent view that convictions for drug possession and trafficking are particularly serious within the meaning of section 243(h)(2)(B). Mahini, 779 F.2d at 1421. Ramirez argues that the BIA must make an additional, separate finding that the alien with such a drug conviction constitutes a danger to the community. He argues that two findings are mandated by the language of the statute and by our decision in Mahini.

The BIA found that there is no "statutory requirement for a separate determination of dangerousness focusing on the likelihood of future serious misconduct on the part of the alien." The BIA then held "[w]e have little difficulty concluding that the applicant herein has been convicted of a particularly serious crime and, therefore, constitutes a danger to the community of the United States within the meaning of section 243(h)(2)(B) of the Act."

A close reading of the language of the statute leads us to the conclusion that the BIA's interpretation is reasonable. The participial phrase, "having been convicted by a final judgment of a particularly serious crime," modifies the word "alien" and thus limits those aliens who may be determined to constitute a danger to the community to those who...