26 I. & N. Dec. 46
BIA2012Background
- Respondent, a Pakistani national, entered the U.S. on J-1 status in 2010 and pled guilty in 2011 to corruption of minors and indecent assault under Pennsylvania law.
- IJ held the indecent assault conviction involved a crime of moral turpitude and the corruption of minors conviction a crime of child abuse, rendering removal under §237(a)(2)(A)(i) and (a)(2)(E)(i).
- DHS argued that the respondent was barred from asylum and withholding due to a particularly serious crime under the Act, citing Matter of N-A-M-.
- Respondent argued, relying on Alaka v. Attorney General, that an offense must be an aggravated felony to be ‘particularly serious.’
- Board remanded to determine whether either conviction qualifies as a particularly serious crime under Matter of N-A-M- and related authorities.
- On appeal, the Board dismissed the respondent’s appeal, sustained DHS’s appeal in part, and remanded for further proceedings consistent with the decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N-A-M- governs the ‘particularly serious crime’ bar in the Third Circuit | DHS argues N-A-M- controls; Third Circuit did not hold unambiguous language. | Respondent argues Alaka binding in Third Circuit; N-A-M- should not govern here. | Apply Matter of N-A-M- for Third Circuit cases. |
| Whether the respondent’s convictions are ‘particularly serious crimes’ | Respondent’s crimes may bar asylum/withholding under N-A-M- analysis. | Respondent contends not necessarily ‘particularly serious’ under statute. | Remand to determine if either conviction is ‘particularly serious.’ |
| Adverse credibility determination | Credibility gaps undermine eligibility. | IJ’s credibility ruling supported by record discrepancies. | Adverse credibility finding upheld; not clearly erroneous. |
Key Cases Cited
- Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA 2007) (agency interpretation of ‘particularly serious crime’)
- Alaka v. Attorney General of U.S., 456 F.3d 88 (3d Cir. 2006) (aggravated felony required for ‘particularly serious’ in Third Circuit)
- Brand X Internet Servs. v. City of X, 545 U.S. 967 (S. Ct. 2005) (deference to agency interpretation when statute ambiguous)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (uniform application of withholding bar across circuits)
- Gao v. Holder, 595 F.3d 549 (4th Cir. 2010) (courts split on interpretation; uniformity concerns cited)
- Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008) (statutory ambiguity acknowledged across circuits)
- N-A-M- v. Holder, 587 F.3d 1082 (7th Cir. 2010) (defers to agency interpretation; not limited to aggravated felonies)