D-L-S, 28 I. & N. Dec. 568

Respondent is a Mexican national who pled nolo contendere in Florida (1999) to felony battery; adjudication was deferred and he received five years’ probation and restitution.
DHS initiated removal proceedings; respondent conceded removability and applied for withholding of removal and CAT protection; asylum claim was untimely.
The IJ pretermitted withholding after finding the deferred adjudication constituted a “conviction by a final judgment” for a particularly serious crime; CAT relief was denied on the merits.
The BIA initially dismissed the appeal; the Eleventh Circuit granted the Government’s unopposed motion to remand for further consideration of whether Florida deferred adjudication qualifies as a “conviction by a final judgment” and whether felony battery is a particularly serious crime.
On remand the BIA held that a deferred adjudication that satisfies INA §101(a)(48)(A)(i)–(ii) constitutes a “conviction by a final judgment” and that the respondent’s felony battery was a particularly serious crime based on the facts and circumstances, so withholding was barred.

Issue	Respondent's Argument	Government/BIA Argument	Held
Does the phrase “convicted by a final judgment” in INA §241(b)(3)(B)(ii) include state deferred adjudications that meet INA §101(a)(48)(A)(i)–(ii)?	Deferred adjudication is not a final judgment because guilt is not finally adjudicated under state procedure.	"Final judgment" includes cases where sentence (or probation) is imposed; where a deferred adjudication meets §101(a)(48)(A)(i)–(ii) it is a conviction by a final judgment.	BIA: Yes. A deferred adjudication satisfying §101(a)(48)(A)(i)–(ii) is a conviction “by a final judgment.”
Is Florida felony battery a “particularly serious crime” for withholding-bar purposes (elements alone or on the facts)?	The offense and facts do not meet the particularly serious crime bar; respondent claimed self-defense and lack of intent to cause serious injury.	The statute’s elements and the underlying facts (use of glass to cut chest, victim required stitches, probation and restitution) support a particularly serious crime finding.	BIA: The offense is a particularly serious crime based on the facts and circumstances; no need to decide elements-only question.
Does the particularly serious crime finding bar withholding of removal?	Respondent: withholding should be available.	Government/BIA: barred because respondent convicted by final judgment of a particularly serious crime and thus is a danger to the community.	BIA: Withholding was properly pretermitted; appeal dismissed.

Berman v. United States, 302 U.S. 211 (1937) (a criminal sentence is the judgment; final judgment exists when sentence is imposed)
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (statutory interpretation begins with text)
Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019) (identical statutory language in a statute should bear a consistent meaning)
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138 (11th Cir. 2010) (particularly serious crime analysis may consider facts and circumstances beyond statutory elements)
Pereida v. Wilkinson, 141 S. Ct. 754 (2021) (burden of proof and immigration statutory interpretation principles)