Lead Opinion
Petitioner N-A-M seeks review of a Board of Immigration Appeals’ (“BIA”) decision to remove her to her native El Salvador.
On appeal, N-A-M asserts three legal errors in the BIA’s decision: First, she argues that felony menacing does not constitute a “particularly serious offense” as contemplated by § 1231; second, she asserts that the BIA applied the wrong legal framework in adjudicating her case; and third, she contends that she was denied due process of law. Finding no error of law, we affirm.
BACKGROUND
Appellant, N-A-M, is a thirty-eight year old preoperative transsexual (male-to-female) from El Salvador. In El Salvador, N-A-M was subjected to multiple instances of persecution due to her transgendered status, and fled to the United States in 2004, entering without inspection.
In June 2005, N-A-M was convicted of felony menacing, in violation of Colo.Rev. Stat. § 18-3-206(l)(a), (b) and reckless endangerment, in violation of Colo.Rev.Stat. § 18-3-208. Upon conviction, N-A-M was sentenced to four years deferred judgment and four years of probation.
In November 2006, N-A-M was served with a Notice to Appear before an immigration judge to show why she should not be removed from the United States. She filed an application for asylum pursuant to 8 U.S.C. § 1158, an application for withholding of removal, pursuant to 8 U.S.C. § 1231(b)(3), and an application for withholding of removal under the regulations implementing the Convention Against Torture, at 8 C.F.R § 1208.16(c), 18. Of these, only N-AM’s withholding claim is before us.
Under 8 U.S.C. § 1231(b)(3)(A),
the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
However, § 1231(b)(3)(B)(ii) provides an exception to withholding of removal if:
(B) Exception.
Subparagraph (A) does not apply to an alien deportable under section
(ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the commimity of the United States; ...
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 imprisonment 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 determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime. For purposes of clause (iv), an alien who is described in section § 1227(a)(4)(B) shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States.
(emphasis added).
The Immigration Judge found that although N-A-M has suffered persecution as contemplated by § 1231(b)(3)(A), her conviction for felony menacing rendered her eligible for removal pursuant to § 1231 (b) (3) (b) (ii). The Immigration Judge stated that although N-A-M “has been persecuted in the past ... [She] has been convicted of a particularly serious crime and thereby constitutes a danger to the community---- And, therefore, even though the respondent has a viable persecution claim, [her] application is denied as a matter of law.” I. J. Dec. at 7-8.
In April 2007, N-A-M appealed the Immigration Judge’s decision to the BIA, contending that the Immigration Judge erred in his construction of § 1231, and violated her due process rights by considering evidence outside of the record of conviction. In a published decision, the Board affirmed the decision of the Immigration Judge. In re N-A-M, 24 I. & N. Dec. 336 (BIA 2007). Turning first to N-A-M’s particularly serious offense claim, the BIA concluded that “Congress did not intend to limit what offenses may be particularly serious crimes to those offenses classified as aggravated felonies.” Id. at 341. As to N-A-M’s danger to the community claim, the BIA observed that it “no longer engage[d] in a separate determination to address whether the alien is a danger to the community.” Id. at 341. And finally, in addressing N-A-M’s due process challenge, the BIA noted that it “may examine all reliable information and [is] not limited to reviewing the record of conviction and sentencing information.” Id. at 343.
The Board denied N-A-M’s petition for rehearing en banc on March 11, 2008. These petitions followed.
DISCUSSION
Under 8 U.S.C. § 1252(a)(2), we have jurisdiction to review constitutional challenges and questions of law raised in a petition for review from a BIA decision. Brue v. Gonzales,
1. Non-aggravated felonies may constitute “particularly serious” crimes for purposes of 8 U.S.C. § 1231.
N-A-M challenges the BIA’s statutory-construction of what constitutes a “particularly serious crime” under § 1231. See Aplt’s Br. at 43. She urges us to accept our sister circuit’s limitation of “particularly serious” offenses to aggravated felonies.
The BIA has developed administrative standards for determining what constitutes a particularly serious crime. See Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982) (“In judging the seriousness of a crime, we look to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.”). We agree that apart from the designation of certain aggravated felonies as “particularly serious” offenses, the statute contains no limiting language restricting the Attorney General’s discretion to label other crimes as “particularly serious.” And, “[t]he long history of case-by-case determination of ‘particularly serious’ crimes” counsels against N-A-M’s attempt to craft a bright-line rule. Delgado v. Holder,
Section 1231 (b)(3)(b)(ii) empowers the Attorney General to deny withholding to alien petitioners upon a determination that the petitioner “having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States.” The BIA construes this provision as requiring only an inquiry into whether the alien has committed a particularly serious crime. “[Ojnce an alien is found to have committed a particularly serious crime, we no longer engage in a separate determination to address whether an alien is a danger to the community.” 24 I. & N. Dec. at 342. N-A-M challenges the BIA’s construction of § 1231, contending that the BIA’s omission of an inquiry into whether the facts and circumstances of her felony menacing conviction warranted a finding that she is a danger to the community constitutes a misapplication of the legal standard articulated § 1231.
Although N-A-M and the distinguished amici make strong arguments that the BIA is not accurately interpreting the statute and its treaty-based under-pinnings, we are constrained by our precedent to hold otherwise. In Al-Salehi v. INS, as conceded by Amicus Curiae United Nations High Commissioner for Refugees, we affirmed the BIA’s interpretation of § 1231, holding that no separate danger-to-the-community assessment is required under the statute.
3. N-A-M suffered no denial of due process.
Following our precedent that the BIA reasonably construed 8 U.S.C. § 1231, we turn to N-A-M’s due process challenge. Under our cases, “when facing removal, aliens are entitled only to procedural due process, which provides the opportunity to be heard at a meaningful time and in a meaningful manner.” Schroeck v. Gonzales,
The evidentiary rules are not so strictly applied in immigration hearings. See Bauge v. INS,
CONCLUSION
The BIA’s reasonable construction of § 1231 is entitled to our deference, and N-A-M suffered no deprivation of her due process rights. Accordingly, we AFFIRM the decision of the BIA.
Notes
. N-A-M is a preoperative Iransgender person and wishes to be addressed as a female. In re N-A-M, 24 I & N Dec. 336 (BIA 2007). The Immigration Judge refers to N-A-M as a female, stating that N-A-M "testified that she came from a family of four boys and three girls and at the age of 11 she discovered that she had what we might call a discrepancy in her gender.” I.J. Dec. at 2-3. Accordingly, this court refers to N-A-M as a female.
. Although Respondents do not argue that we are without jurisdiction to examine the “particularly serious” crime challenge, to the extent that there is any dispute, we refer to our decision in Brue, which observed that "[wjhile we cannot reweigh evidence to determine if the crime was indeed particularly serious, we can determine [under 8 U.S.C. § 1252(a)(2)] whether the BIA applied the correct legal standard in making its determi
. Section 101(a)(43) of the INA defines “aggravated felony” to include, inter alia, “a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F) (footnote omitted). In the record before the BIA, N-A-M’s felony menacing conviction did not qualify as an "aggravated felony.” The parties have informed the court that N-A-M has been resentenced twice since the conviction. First, N-A-M was re-sentenced to a term of one year, with 365 days credit for time served. Then, N-A-M was resentenced again to a term of 364 days. This factual addition might alter the “particularly serious crime” analysis. We, however, are statutorily precluded from consideration of this development under 8 U.S.C. § 1252(b)(4)(A) ("[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based.”). We posit that even if we were to take the resentencing into account, we would reach the same conclusion.
Concurrence Opinion
concurring:
Although I concur in the outcome of this case, I write separately to address two issues. Turning first to N-A-M’s claim that only aggravated felonies constitute “particularly serious crimes,” although Chevron deference directs us to affirm the Bureau of Immigration Appeals’ (BIA) rejection of this argument and this provision presents no Chevron exception, it is worth noting that our immigration statutory framework is notoriously complex and the meaning of the statutory language has been a moving target since its inception.
Second, I think that the gravamen of this case involves whether the Refugee Act’s withholding of removal provision, 8 U.S.C. § 1231(b)(3)(b)(ii), which incorporates our obligations under the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951), requires an inquiry into both whether N-A-M has been convicted of a “particularly serious” offense and constitutes a “danger to the community.” Stare decisis binds us to the language of Al-Salehi v. INS,
I find, however, N-A-M and amici’s arguments persuasive that the interpretation from Al-Salehi is at odds with the language of § 1231, with some basic principles of statutory construction, the purpose and intent behind the Refugee Act, and the international legal principles embodied in the Refugee Act. I urge the Attorney General and the Secretary of State to consider the arguments of amici here, the treaty underlying this provision, and the jurisprudence of fellow signatories to the underlying international commitments. Perhaps the BIA should consider reverting to its previous standards.
I. Section 1231’s “particularly serious’’ offense inquiry is a moving target and fickle standard.
In light of the absence of explanatory statutory language defining “particularly serious” for purposes of § 1231, we give the BIA’s construction Chevron deference. Brue v. Gonzales,
Originally, Congress enacted 8 U.S.C. § 1253(h), now § 1231, in response to our ratification of Protocol 33 to the United Nations’ Refugee Convention. Under § 1253(h), withholding was denied to those aliens who “having been convicted by a final judgment of a particularly serious crime, constitute[] a danger to the community of the United States ” (emphasis added). Under this amendment, the BIA determined on a case-by-case basis which crimes were particularly serious, applying
The statutory provision barring “particularly serious” criminals from eligibility from withholding of removal has been subjected to three amendments. With the Immigration Act of 1990, Pub.L. No. 101— 649, 104 Stat. 4978, Congress established a per se category of “particularly serious” criminals comprised of aliens convicted of aggravated felonies.
In 1996, with the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, 1269 (1996), Congress, in order to comply with agreed to international obligations, relaxed its categorical bar on aggravated felons. Delgado v. Holder,
Congress addressed this provision again in 1996 with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Division C of Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-602. The IIRIRA Amendments create the statute’s current form and categorically apply a bar from withholding those aggravated felons sentenced to five years’ or more imprisonment. Id.
Our resolution of the issue presented in this case turns on the meaning behind Congress’s post-1990 statutory enactments. Congress’s seeming relaxation of the categorical aggravated felony bar suggests an effort to avoid the inclusion of minor crimes in the class of per se “particularly serious” offenses. The extent of that relaxation, however, is subject to debate — or, at least, has been subject to debate both within the administrative agency, as discussed in Section II, and among the courts. Compare Ali v. Achim,
The BIA has developed administrative standards for determining what constitutes a particularly serious crime. These standards, however, appear to be somewhat in flux. With Frentescu in 1982, the BIA articulated four factors relevant to the § 1231 (at that time, the § 1253(h)) inquiry. Specifically (and logically for that matter), the BIA noted that, “[i]n judging the seriousness of a crime, we look to such factors as [1] the nature of the conviction, [2] the circumstances and underlying facts of the conviction, [3] the type of sentence imposed, and, most importantly, [4] whether the type and circumstances of the crime indicate that the alien will be a
But over time, however, the BIA retreated substantially from Frentescu’s danger-to-the-community prong. In the BIA’s 1992 decision, Matter of C-, the BIA suggested that, except in the ease of the aggravated felony, Frentescu remained the administrative standard in terms of defining “particularly serious” offenses. See Matter of C-, 20 I. & N. Dec. 529, 534 n. 3 (BIA 1992) (“There will of course continue to be situations requiring a determination whether a ‘particularly serious crime’ exists under Frentescu; such is the case, for example, where the crime does not technically qualify as an aggravated felony under the Act based on the conviction date.”). Despite the clear presence of the phrase in the statute and the logical pronouncement in Frentescu that the phrase is the most important factor, the “danger to the community” prong is now absent from the BIA’s reiteration of the relevant factors in this case. See In re N-A-M, 24 I. & N. Dec. 336, at 342 (BIA 2007) (“[W]e examine the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction.” (citing Matter of Q-T-M-T- 21 I. & N. Dec. 639 (BIA 1996))). In fact, it appears that the BIA may now disregard Frentescu altogether. Id. (“On some occasions, we have focused exclusively on the elements of the offense, i.e., the nature of the crime.”); but see Brue,
Our precedent requires us to defer to the BIA’s reasonable construction of § 1231, and we abide by it here. I note, however, that the BIA’s continually competing and definitionally inconsistent constructions of § 1231 frustrate our function as a reviewing court and threaten the reasonableness of its interpretations.
II. N-A-M and amici make persuasive arguments that Al-Salehi is contrary to 8 U.S.C. § mi.
The Immigration Judge summarily stated that N-A-M constituted a danger to the community that statutorily barred the withholding of removal, a finding that may indeed be factually true as well as legally affirmable. The Immigration Judge, however, did not engage in an analysis as to whether N-A-M actually constituted a danger to the community either under Frentescu or any other model. Presumably, the absence of such an analysis is because, as the BIA has now construed § 1231, “this [inquiry] is subsumed within the determination that the crime is a particularly serious one.” Aple’s Br. at 30; see In Matter of Carballe, 19 I. & N. Dec. 357, 360 (1986) (“The phrase ‘danger to the community’ is an aid to defining a ‘particularly serious crime.... ’ ”).
Although the circuit consensus, including that of our own, see Al-Salehi v. INS,
It is important that the facts in AlSalehi were different: Mr. Al-Salehi was convicted of an aggravated felony. Further, both the Seventh Circuit’s decision in Garcia v. INS,
Furthermore, I see some unnerving textual impediments to the BIA’s construction. Notably, a statute must be ambiguous or unclear before Chevron comes into play, see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
For the reasons above, arguments made by the amicus, United Nations High Commissioner for Refugees (UNHCR) (to whom our Supreme Court has consistently turned for assistance in interpreting our obligations under the Refugee Convention), are noteworthy. See, e.g., Negusie v. Holder, — U.S. -,
As UNHCR notes, our Refugee Act, which implements the Refugee Convention, and specifically, § 1231, embodies a Congressional commitment to the international legal principle of nonrefoulement, as it appears in Refugee Convention Article 33. See INS v. Stevic,
We can also benefit from reference to international law, as it reveals how other tribunals have interpreted the exact same text. Although citing foreign law is at times controversial, the broad consensus, even among opponents of its use in constitutional law cases, supports its use when determining how other signatories on a treaty interpret that treaty. As Justice Sealia wrote in dissent in Olympic Airways v. Husain:
[The] decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us....
The Court’s new abstemiousness with regard to foreign fare is not without consequence: Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today’s holding. Because the Court offers no convincing explanation why these cases should not be followed, I respectfully dissent.
As pointed out by the Amicus brief from legal scholars, Deborah Anker, Guy S. Goodwin-Gill, and James Hathaway, the interpretation of the international convention by courts in Canada and the United Kingdom differs from our analysis. In interpreting the underlying international convention, the Supreme Court of Canada noted that a government must “make the added determination that the person poses a danger to the safety of the public or to the security of the country ... to justify refoulment.” Pushpanathan, v. Minister of Citizenship & Immigration, [1998]
In conclusion, although the meaning of § 1231’s “particularly serious” offense provision is not crystal clear, the BIA’s construction of the provision to include non-aggravated felonies is reasonable. Furthermore, in light of our decision in Alr-Salehi,