Al-Salehi v. I.N.S., AL-SALEH

• Decision Date: 08 February 1995
• Docket Number: P,No. 94-9527,AL-SALEH,94-9527
• Citation: 47 F.3d 390
• Parties: Nader Ghloumetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 390

47 F.3d 390

63 USLW 2514

Nader Ghloum AL-SALEHI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 94-9527.

United States Court of Appeals Tenth Circuit.

Feb. 8, 1995.

Philip M. Alterman, Beverly W. Oserow, Denver, CO, for petitioner.

Frank W. Hunger, Asst. Atty. Gen., Robert Kendall, Jr., Alison R. Drucker, Dept. of Justice, Civ. Div., Office of Immigration Litigation, Washington, DC, for respondent.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This petition for review raises a question of first impression in the circuit: whether an aggravated felony conviction constitutes an absolute bar to withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)(B), without the need for an additional, specific finding of danger to the community. For the reasons expressed below, we join several of our sister circuits and answer this question in the affirmative. ¹

ADMINISTRATIVE PROCEEDINGS AND JUDICIAL REVIEW

Petitioner entered the United States as a visitor in 1989, and adjusted his status to permanent resident in 1991 based on his marriage to a United States citizen. On June 29, 1992, petitioner was convicted, upon a guilty plea in the United States District Court for the District of Colorado, of possession with intent to distribute at least 500 grams of cocaine. Thereafter, the Immigration and Naturalization Service (INS) issued an order to show cause why petitioner should not be deported as a consequence of this conviction, which is deemed an "aggravated felony" for immigration purposes, see 8 U.S.C. Sec. 1101(a)(43). Petitioner did not contest deportability, but applied for asylum and withholding of deportation. He submitted statements from the prosecuting attorney and sentencing judge, both of whom strongly supported his request for relief from deportation. ² The Immigration Judge (IJ) denied the application, holding that petitioner's conviction conclusively foreclosed such relief, pursuant to 8 U.S.C. Sec. 1158(d) (asylum) and Sec. 1253(h)(2)(B) (withholding of deportation). On appeal to the Board of Immigration Appeals (BIA), petitioner challenged only the denial of withholding of deportation, arguing that the IJ had misinterpreted Sec. 1253(h)(2)(B). The BIA agreed with the IJ's interpretation and dismissed the appeal.

The statute under review provides in pertinent part:

(1) The Attorney General shall not deport or return any alien ... 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.

Section 1253(h) (emphasis added). The underscored passage, with its grammatically indeterminate connection between the prior criminal conviction and the requisite danger to the community, is the focus of the parties' dispute. Petitioner contends, for various reasons, that the conviction serves as a necessary but not sufficient condition for the denial of withholding of deportation, i.e., that the conviction is a threshold requirement triggering consideration of danger to the community, which also must be found before relief may be denied under Sec. 1253(h)(2)(B). Because no such finding was made in this case due to the contrary construction of the statute by the IJ and BIA, who deemed petitioner's conviction sufficient in itself to foreclose relief, petitioner asks us to reverse and remand for further proceedings on the merits of his application.

When "our task is to determine if the BIA correctly determined that [petitioner] was deportable under a particular statutory provision," we engage in a two-step inquiry reflecting obeisance to the will of the legislature that drafted the provision and deference to the judgment of the agency entrusted with its implementation:

If the statutory language makes the intent of Congress clear and unambiguous, we give full effect to that intent; if the statute is silent or ambiguous with respect to the specific issue, however, we do not simply impose our own construction on the statute, but give due deference to the BIA's interpretation of the INA [Immigration and Nationality Act] unless it is arbitrary, capricious, or manifestly contrary to the statute.

Solis-Muela v. INS, 13 F.3d 372, 375 (10th Cir.1993) (quoting Mosquera-Perez v. INS, 3 F.3d 553, 555 (1st Cir.1993)) (internal quotation omitted); see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). While we thus acknowledge the deference owed to "the agency primarily charged by Congress to implement the public policy underlying these [immigration] laws," INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982), we also recognize that "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent," Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9.

HISTORICAL BACKGROUND

A summary of the pertinent legislative and administrative background, culled from a recent and particularly thorough decision construing Sec. 1253(h)(2)(B), should help to frame our inquiry. We find the source of the provision in a qualified international obligation assumed by the United States with respect to refugees:

Prior to 1980, section 1253(h) conferred discretion upon the Attorney General to withhold the deportation of any alien who would be subject to persecution in the receiving nation on account of race, religion, or political opinion. The Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 107 (1980), amended section 1253(h) to comport with Article 33 of the United Nations Protocol Relating to the Status of Refugees ("Protocol"), Jan. 31, 1967, 19 U.S.T. 6223 (1968), to which the United States had acceded in 1968. The Protocol bound its parties to the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees ("Convention"), July 28, 1951, 189 U.N.T.S. 150. Article 33 of the Convention provides:

1. No Contracting State shall expel or return ("refouler") a refugee ... to ... territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee ... who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

19 U.S.T. at 6276.

Mosquera-Perez v. INS, 3 F.3d at 556-57 (footnotes omitted and emphasis added); see also Garcia v. INS, 7 F.3d 1320, 1324-25 (7th Cir.1993). Article 33(1) of the Convention is implemented by Sec. 1253(h)(1), which makes withholding of deportation mandatory upon satisfaction of the statutory criteria. See Nguyen v. INS, 991 F.2d 621, 626 (10th Cir.1993) ("the Attorney General has no discretion in withholding of deportation decisions"). Likewise, Sec. 1253(h)(2)(B) incorporates the conclusive bar to such relief set out in Article 33(2). Indeed, as highlighted above, the Convention employs the same indeterminate grammatical structure already noted in connection with the statute.

With the enactment of the Refugee Act in 1980, the BIA took up its task of interpreting and applying the provisions we have been considering. The following passage traces the development of the BIA's present position that conviction of a particularly serious crime, and specifically an aggravated felony, ipso facto establishes one's dangerousness to the community, thereby precluding relief under Sec. 1253(h)(2)(B) without the need for any additional consideration of the question of community danger:

Between 1980 and 1990, the operative standard for determining which crimes were "particularly serious" for section 1253(h)(2)(B) purposes was set forth by the BIA in In re Frentescu, 18 I. & N. Dec. 244 (1982):

While there are crimes which, on their face, are "particularly serious crimes" or are clearly not "particularly serious crimes," the record in most proceedings will have to be analyzed on a case-by-case basis. In judging the seriousness of a crime, we look to [various factors] ... and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.

Id. at 247. Once an alien's crime was deemed "particularly serious," however, the BIA interpreted section 1253(h) as not requiring a separate determination that the alien posed a danger to the community. In re Carballe, 19 I. & N. Dec. 357 (1986) ("The phrase 'danger to the community' is an aid to defining a 'particularly serious crime,' not a mandate that administrative agencies or the courts determine whether the alien will become a recidivist.") modified on other grounds, In re Gonzalez, 19 I. & N. Dec. 682 (1988).

The Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5053 (1990), obviated the Frentescu analysis for aggravated felonies by appending the following paragraph to section 1253(h):

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.

8 U.S.C. Sec. 1253(h) (1993). The BIA has continued to follow Carballe since the 1990 amendment to section 1253(h), by requiring no separate finding of dangerousness to the community in the case of an alien convicted of an aggravated felony.

Mosquera-Perez, 3...