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Particularly serious crime

Particularly serious crime in the Immigration and Nationality Act (INA) of the United States is a predecessor of the current aggravated felony.[1][2][3] Both of these terms are synonymous in the INA. The term "particularly serious crime" was coined for the first time when the U.S. Congress enacted the Refugee Act in 1980.[4] As of September 30, 1996, every aggravated felony conviction for which a sentence of at least 1 year of imprisonment was actually imposed (or more than 2 years of imprisonment could actually have been imposed[5]) by a court of law may qualify as a particularly serious crime.[6][7] This requires a case-by-case analysis. An offense that involves murder or torture is considered a particularly serious crime even if the possible term of imprisonment is 2 years or less.[8]

HistoryEdit

The term "particularly serious crime" was created in 1980 during the enactment of Refugee Act,[4] which allowed 50,000 international refugees to be firmly resettled in the United States each year.[9] In the same Act, Congress provided permanent protection to these refugees against removability from the United States.[10] In 1996, Congress reaffirmed the refugee protection but made clear that such protection must not be granted to any other class of aliens.[11]

Aliens who have been convicted of particularly serious crimes (and found by the U.S. Attorney General to be dangers to the community of the United States) are statutorily precluded from receiving asylum or a grant of withholding of removal under 8 U.S.C. § 1231(b)(3)(B).[12][1][13] But this restriction only applies to those aliens who have been convicted by a court of law of a felony that is indisputably punishable by two years or more of imprisonment, or any state misdemeanor punishable by a term of imprisonment exceeding two years,[7][5] and said "term of imprisonment was completed within the previous 15 years."[6][14]

The above legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant."[15] In this regard, the INA provides the following important provision that must be applied to every person convicted of an aggravated felony:

The term [aggravated felony] applies to an offense described in this paragraph ... and applies to such an offense ... for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term [aggravated felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996.[6][14]

"The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.'"[16] Congress is clearly and unambiguously saying that 8 U.S.C. §§ 1101(f)(8), 1158(b)(2)(B)(i), 1182(a)(9)(A), 1227(a)(2)(A)(iii), 1229b(a), etc., must be overridden by the above quoted penultimate provision of § 1101(a)(43). "In statutes, the [notwithstanding any other provision of law] 'shows which provision prevails in the event of a clash.'"[16] Moreover, courts have repeatedly explained that "the phrase 'notwithstanding any other provision of law' expresses the legislative intent to override all contrary statutory and decisional law."[17] This means that no kind of precedent can be invoked to challenge the above quoted commanding statement of Congress.

Aliens convicted of particularly serious crimes (and found by the Attorney General as dangers to the community of the United States) are also precluded from receiving a grant of withholding of removal under the United Nations Convention against Torture (CAT).[13][3] Such aliens, however, may receive deferral of removal under the CAT only.[18] It is well-established that relief under the CAT is not discretionary but statutory and mandatory.[19][3] It is believed that protection under the CAT is generally more difficult to obtain than a grant of asylum.

Comparison of a particularly serious crime to an aggravated felonyEdit

For purposes of the INA, any criminal conviction that does not qualify as an aggravated felony or a crime involving moral turpitude (CIMT) indisputably cannot qualify as a particularly serious crime. The following is an incomplete list of particularly serious crimes:

ReferencesEdit

This article in most part is based on law of the United States, including statutory and latest published case law.

  1. ^ a b 8 U.S.C. § 1158(b)(2)(A)(ii) ("Paragraph (1) shall not apply to an alien if the Attorney General determines that— ... the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States") (emphasis added).
  2. ^ a b Diego v. Sessions, 857 F.3d 1005, 1015-16 (9th Cir. 2017).
  3. ^ a b c Gomez-Sanchez v. Sessions, 892 F.3d 985, 990 (9th Cir. 2018) ("The grant of withholding of removal is mandatory if an individual proves that his 'life or freedom would be threatened in [the] country [to which he or she would be removed] because of [his or her] race, religion, nationality, membership in a particular social group, or political opinion.'") (quoting INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A)) (emphasis added); see also Ramos-Rodriguez v. Whitaker, No. 16-73256 (9th Cir. Nov. 15, 2018) (unpublished).
  4. ^ a b c See generally Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007).
  5. ^ a b 8 U.S.C. § 1101(a)(43)(T) ("an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed"); accord 18 U.S.C. § 921(a)(20) ("The term 'crime punishable by imprisonment for a term exceeding one year' does not include—(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.").
  6. ^ a b c 8 U.S.C. § 1101(a)(43) (emphasis added); Matter of Vasquez-Muniz, 23 I&N Dec. 207, 211 (BIA 2002) (en banc) ("This penultimate sentence, governing the enumeration of crimes in section 101(a)(43) of the Act, refers the reader to all of the crimes 'described in' the aggravated felony provision."); Luna Torres v. Lynch, 578 U.S. ___, ___, 136 S.Ct. 1623, 1627 (2016) ("The whole point of § 1101(a)(43)'s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law."); see also 8 C.F.R. 1001.1(t) ("The term aggravated felony means a crime ... described in section 101(a)(43) of the Act. This definition is applicable to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996, but shall apply under section 276(b) of the Act only to violations of section 276(a) of the Act occurring on or after that date.") (emphasis added).
  7. ^ a b United States v. Valencia-Mendoza, ___ F.3d ___, ___, No. 17-30158, p.20-21 & n.4 (9th Cir. Jan. 10, 2019) (stating that courts of appeals "have held that, when determining whether a [state] offense is 'punishable' by more than one year in prison, the Supreme Court's recent cases require an examination of the maximum sentence possible under the state's mandatory sentencing guidelines."); see also United States v. Pray, 373 F.3d 358, 362 (3d Cir. 2004) (explaining that the period of probation, parole, or supervised release does not constitute term of imprisonment); Commonwealth v. Conahan, 589 A.2d 1107, 1110 (Pa. 1991) (same); Young v. Pa. Board of Probation and Parole, 409 A.2d 843, 846-47 (Pa. 1979) (same); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (same).
  8. ^ a b 8 U.S.C. § 1182(h) ("No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture."); see also Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).
  9. ^ 8 U.S.C. § 1101(a)(42) ("The term 'refugee' means ... any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable ... to return to, and is unable ... to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....") (emphasis added); see also Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) ("Persecution may be emotional or psychological, as well as physical."); Matter of B-R-, 26 I&N Dec. 119, 112 (BIA 2013) ("The core regulatory purpose of asylum . . . is . . . to protect refugees with nowhere else to turn.") (brackets and internal quotation marks omitted).
  10. ^ Matter of H-N-, 22 I&N Dec. 1039, 1040-45 (BIA 1999) (en banc) (case of a female Cambodian-American who was convicted of a particularly serious crime but "the Immigration Judge found [her] eligible for a waiver of inadmissibility, as well as for adjustment of status, and he granted her this relief from removal."); INA § 209(c), 8 U.S.C. § 1159(c) ("The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of [section 1182] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.") (emphasis added); see also Nguyen v. Chertoff, 501 F.3d 107, 109-10 (2d Cir. 2007) (petition granted of a Vietnamese-American convicted of a particularly serious crime); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) ("The Equal Protection Clause of the Fourteenth Amendment commands that ... all persons similarly situated should be treated alike.").
  11. ^ Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) (collecting court cases) ("An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction.") (emphasis added); see also De Leon v. Lynch, 808 F.3d 1224, 1232 (10th Cir. 2015) ("[Petitioner] next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA's recent decision in Matter of J–H–J–, he is correct.") (emphasis added).
  12. ^ a b Melgoza Guerrero v. Whitaker, ___ F.3d ___, ___, No. 15-72080, p.9 (9th Cir. Nov. 9, 2018) ("The term 'particularly serious crime' requires the agency to place the alien's conviction along a spectrum of seriousness."); Anwari v. Attorney General of the U.S., Nos. 18-1505 & 18-2291, p.6 (3rd Cir. Nov. 6, 2018) ("To qualify for deferral of removal under the CAT, an applicant must show that he is 'more likely than not' to be tortured. 8 C.F.R. 1208.16(c)(2). Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.") (internal quotation marks omitted).
  13. ^ a b 8 U.S.C. § 1231(b)(3)(B)("Restriction on removal to a country where alien's life or freedom would be threatened"); 8 C.F.R. 208.16(d)(2)("Mandatory denials").
  14. ^ a b Zivkovic v. Holder, 724 F.3d 894, 911 (7th Cir. 2013) ("Because [Petitioner]'s aggravated felony convictions were more than a decade old before the 1988 statute took effect, they cannot be used as a ground for removal...."); Ledezma-Galicia v. Holder, 636 F.3d 1059, 1080 (9th Cir. 2010) ("[Petitioner] is not removable by reason of being an aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions, like [Petitioner]'s, that occurred prior to November 18, 1988."); but see Canto v. Holder, 593 F.3d 638, 640-42 (7th Cir. 2010) (good example of absurdity and violation of the U.S. Constitution).
  15. ^ Rubin v. Islamic Republic of Iran, 583 U.S. ___ (2018) (Slip Opinion at 10) (internal quotation marks and brackets omitted); see also Matter of Song, 27 I&N Dec. 488, 492 (BIA 2018) ("Because the language of both the statute and the regulations is plain and unambiguous, we are bound to follow it."); Matter of Figueroa, 25 I&N Dec. 596, 598 (BIA 2011) ("When interpreting statutes and regulations, we look first to the plain meaning of the language and are required to give effect to unambiguously expressed intent. Executive intent is presumed to be expressed by the ordinary meaning of the words used. We also construe a statute or regulation to give effect to all of its provisions.") (citations omitted); Lamie v. United States Trustee, 540 U.S. 526, 534 (2004); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.") (internal quotation marks omitted); United States v. Menasche, 348 U.S. 528, 538-539 (1955) ("It is our duty to give effect, if possible, to every clause and word of a statute." (internal quotation marks omitted); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) ("The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.").
  16. ^ a b NLRB v. SW General, Inc., 580 U.S. ___, ___, 137 S.Ct. 929, 939 (2017).
  17. ^ In re JMC Telecom LLC, 416 B.R. 738, 743 (C.D. Cal. 2009) (internal quotation marks and brackets omitted) (emphasis added) (A. Howard Matz, District Judge); see also In re Partida, 862 F.3d 909, 912 (9th Cir. 2017) ("That is the function and purpose of the 'notwithstanding' clause."); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1083 (9th Cir. 2014) ("As a general matter, 'notwithstanding' clauses nullify conflicting provisions of law."); Jones v. United States, No. 08-645C, p.4-5 (Fed. Cl. Sep. 14, 2009); Kucana v. Holder, 558 U.S. 233, 238-39 n.1 (2010); Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc) (the court clarified "that § 1252(f)(2)'s standard for granting injunctive relief in removal proceedings trumps any contrary provision elsewhere in the law."); Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (collecting cases).
  18. ^ Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 279 (A.G. 2002) ("Although the respondents are statutorily ineligible for withholding of removal by virtue of their convictions for 'particularly serious crimes,' the regulations implementing the Convention Against Torture allow them to obtain a deferral of removal notwithstanding the prior criminal offenses if they can establish that they are 'entitled to protection' under the Convention."); see also 8 U.S.C. § 1252(a)(4) ("Claims under the United Nations Convention").
  19. ^ 8 U.S.C. § 1252(a)(2)(B)(ii) (stating that "the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a)....") (emphasis added); see also Bamaca-Cifuentes v. Att'y Gen., 870 F.3d 108, 111 (3d Cir. 2017).

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