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Matter of S-S-, 22 I&N Dec. 458 (BIA 1999)

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Matter of S-S-, 22 I&N Dec. 458 (BIA 1999) Interim Decision #3374 In re S-S-, Respondent Decided January 21, 1999 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals (1) Under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (Supp. II 1996), a determination of whether an alien convicted of an aggra- vated felony and sentenced to less than 5 years’ imprisonment has been convicted of a “par- ticularly serious crime,” thus barring the alien from withholding of removal, requires an indi- vidual examination of the nature of the conviction, the sentence imposed, and the circum- stances and underlying facts of the conviction. Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), followed. (2) Under section 241(b)(3)(B) of the Act, a determination of whether an aggravated felony con- viction constitutes a “particularly serious crime” per se is based on the length of sentence imposed, rather than on the category or type of aggravated felony conviction that resulted in the conviction. Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988), explained and distinguished. (3) Under section 241(b)(3)(B) of the Act, there no longer exists a rebuttable presumption that an alien convicted of an aggravated felony for which a sentence of less than 5 years was imposed has been convicted of a “particularly serious crime” rendering the alien ineligible for withholding of removal. Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996) (regarding with- holding of deportation), distinguished. (4) An alien who was convicted of first degree robbery of an occupied home while armed with a handgun and sentenced to 55 months’ imprisonment has been convicted of an aggra- vated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996), and, upon consideration of the nature of the conviction and the sentence imposed, as well as the underlying facts and circumstances of the conviction, has been convicted of a “par- ticularly serious crime” rendering the alien ineligible for withholding of removal under sec- tion 241(b)(3)(B)(ii) of the Act. Pro se Tammy L. Fitting, Assistant District Counsel, for the Immigration and Naturalization Service Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSEN- BERG, MATHON, GUENDELSBERGER, JONES, GRANT, and SCIALABBA, Board Members. ROSENBERG, Board Member: 458 Interim Decision #3374 In a decision dated July 16, 1997, an Immigration Judge found the respondent removable as charged and ineligible for any form of relief from removal, and ordered him removed from the United States to Laos. The respondent filed a timely appeal. We have reviewed the issue presented on appeal de novo. Matter of Burbano, 20 I&N Dec. 872 (BIA 1994); see also Matter of H-, 21 I&N Dec. 337 (BIA 1996). The appeal will be dismissed. The request for oral argument is denied. See 8 C.F.R. § 3.1(e) (1998). The respondent is a native and citizen of Laos who was admitted to the United States on November 5, 1985, as a refugee. On September 4, 1991, the respondent was accorded the status of lawful permanent resident as of March 24, 1989. The respondent admitted that on November 4, 1994, he was convicted in the Superior Court of Washington for King County of the offense of first degree robbery while armed with a handgun, in violation of section 9A.56.200(1)(a) of the Revised Code of Washington. He was sen- tenced to 55 months in prison for such offense. The record contains a prop- erly certified copy of a “Judgment and Sentence” consistent with the respondent’s admission. It also contains an “Amended Information” stating that the respondent “did unlawfully and with intent to commit theft take personal property” from the victim, “by the use or threatened use of imme- diate force, violence and fear of injury to such person or her property.” On appeal, the respondent expresses repentance for his misdeeds, con- cern for his family should he be removed, and fear of harm if returned to Laos. In response, the Immigration and Naturalization Service endorses the decision of the Immigration Judge. I. ISSUE PRESENTED ON APPEAL The issue on appeal presents a question of first impression concerning the authority presently accorded the Attorney General under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (Supp. II 1996): whether a determination that the respon- dent, “having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States,” shall be based on an individual examination of the nature of the respondent’s conviction for first degree robbery while armed with a handgun, the sentence imposed for that conviction, and the circumstances and underlying facts of the conviction. II. FINDINGS OF REMOVABILITY AND ANALYSIS OF PARTICULARLY SERIOUS CRIME EXCEPTION Upon review, we find that the respondent was properly placed in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (Supp. 459 Interim Decision #3374 II 1996), by the filing of a Notice to Appear (Form I-862) with the Immigration Court on June 18, 1997. See 8 C.F.R. § 239.1(a) (1998). The Notice to Appear charges, in pertinent part, that the respondent is removable under section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), for having been convicted of “an aggravated felony as defined in sec- tion 101(a)(43) of the Act, to wit: a crime of violence (as defined in section 16 of title 18, United States Code)” for which a term of imprisonment of more than 1 year was imposed. We find that the respondent’s admission to the allegations and charges, together with the certified copy of the “Judgment and Sentence” present in the record, establish that the respon- dent has been convicted of an aggravated felony and sentenced to 55 months’ imprisonment. See section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996). We agree with the Immigration Judge that, consequently, the respon- dent is not eligible for asylum. See sections 208(b)(2)(A)(ii), (B)(i) of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i) (Supp. II 1996). The remaining question that we must address, however, is whether the respondent, who was convicted of an aggravated felony and sentenced to less than 5 years’ incarceration, is barred from withholding of removal under section 241(b)(3)(B) of the Act. In removal proceedings, section 241(b)(3)(A) of the Act specifies that there shall be a restriction on removal to a country where an alien’s life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.1 Section 241(b)(3)(B) of the Act provides certain exceptions to the restriction. In the instant case, we are concerned with section 241(b)(3)(B)(ii) of the Act, which states that an alien is ineligible for withholding if “the alien, having been convicted by a final judgment of a particularly serious crime, is a dan- ger to the community of the United States.” The final paragraph of section 241(b)(3)(B) of the Act states the following: For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprison- ment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determin- ing that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime. We recognize that the “particularly serious crime” exception to our obligation to protect those who face or have suffered mistreatment on 1This provision was added by section 305(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009- 546, 3009-602 (enacted Sept. 30, 1996) (effective Apr. 1, 1997). 460 Interim Decision #3374 account of one of the bases contained in the refugee definition is appropri- ately invoked when extending such protection would threaten the safety and security of our own citizens. See Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria For Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees para. 154, at 36 (Geneva, 1992) (“Handbook”).2 According to the Handbook, while the United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for United States Nov. 1, 1968) (“Protocol”), does not require signatory states to tolerate nonnationals who represent a security risk or a danger to the community, it contemplates that a signatory state will make an individual assessment within the context of the state’s legal sys- tem, including the consideration of mitigating and aggravating circum- stances, in determining whether the individual refugee constitutes a danger to the community. Handbook, supra, paras. 155, 157, at 36-37. A. Applicable Legal Standard: Historical Background The text of the current withholding of removal provision is based on our accession to the 1967 Protocol Relating to the Status of Refugees, applying articles 2 through 34 of the 1951 United Nations Convention Relating to the Status of Refugees, adopted July 28, 1951, 189 U.N.T.S.
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