Cite as 26 I&N Dec. 46 (BIA 2012) Interim Decision #3772
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Matter of M-H-, Respondent
Decided November 13, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not
be an aggravated felony to be considered a particularly serious crime for purposes of barring
asylum or withholding of removal, should be applied to cases within the jurisdiction of the
United States Court of Appeals for the Third Circuit.
FOR RESPONDENT: Matthew J. Lamberti, Esquire, York, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jeffrey T. Bubier, Senior
Attorney
BEFORE: Board Panel: MALPHRUS and CREPPY, Board Members; LIEBOWITZ,
Temporary Board Member.
LIEBOWITZ, Temporary Board Member:
In a decision dated March 8, 2012, an Immigration Judge denied the
respondent’s applications for asylum and withholding of removal under
sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2006). The Immigration
Judge also granted him withholding of removal under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered
into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention
Against Torture”). Both the respondent and the Department of Homeland
Security (“DHS”) have appealed. We will dismiss the respondent’s appeal,
sustain the DHS’s appeal in part, and remand the record for further
proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Pakistan who was admitted to the
United States as a J-1 nonimmigrant exchange visitor on June 12, 2010. On
April 21, 2011, he pled guilty to corruption of minors and indecent assault inCite as 26 I&N Dec. 46 (BIA 2012) Interim Decision #3772
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violation of sections 6301(a)(1) and 3126(a)(1) of title 18 of the Pennsylvania
Consolidated Statutes. The respondent received a 3- to 6-month sentence of
imprisonment for each conviction. The Immigration Judge found that the
respondent’s conviction for indecent assault was for a crime involving moral
turpitude, which rendered him removable under section 237(a)(2)(A)(i)
of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006). He further found that the
respondent’s conviction for corruption of minors was for a crime of child
abuse, which rendered him removable under section 237(a)(2)(E)(i) of the Act.
The respondent does not challenge these findings on appeal.
The respondent applied for asylum, withholding of removal, and protection
under the Convention Against Torture based on his activities in Pakistan
advocating for women, his sexual orientation, his ethnicity, and the nature of
his convictions. The DHS argued that the respondent was barred from
asylum and withholding of removal because he had been convicted of a
particularly serious crime, citing Matter of N-A-M-, 24 I&N Dec. 336 (BIA
2007), aff’d, 587 F.3d 1052 (10th Cir. 2009), cert. denied, 131 S. Ct. 898
(2011). The Immigration Judge found that the law of the United States Court
of Appeals for the Third Circuit dictated otherwise, relying on Alaka
v. Attorney General of U.S., 456 F.3d 88 (3d Cir. 2006), which held that an
offense must be an aggravated felony to be a particularly serious crime.
However, the Immigration Judge denied asylum in the exercise of discretion
based on his determination that the respondent was not a credible witness
and on the gravity of his crimes. The Immigration Judge also denied the
respondent’s application for withholding of removal under the Act on its
merits. However, he granted the respondent’s request for withholding of
removal under the Convention Against Torture.
On appeal, the DHS argues that the respondent should not have been found
eligible for asylum or withholding of removal under the Act or the Convention
Against Torture and that he did not otherwise establish eligibility for deferral
of removal under the Convention Against Torture. Specifically, the DHS
contests the Immigration Judge’s determination that the respondent was
not convicted of a particularly serious crime. The respondent appeals the
Immigration Judge’s finding that he was not a credible witness and the denial
of his other applications.
II. ANALYSIS
A. Particularly Serious Crime
The Act provides that an alien convicted of a particularly serious
crime is not eligible for asylum or withholding of removal. SeeCite as 26 I&N Dec. 46 (BIA 2012) Interim Decision #3772
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Section 208(b)(2)(A) of the Act provides in pertinent part as follows:
[The provisions of the Act relating to asylum] shall not apply to an alien if the
Attorney General determines that—
. . .
(ii) the alien, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of the United States . . . .
Section 208(b)(2)(B)(i) specifies that “an alien who has been convicted of an aggravated
felony shall be considered to have been convicted of a particularly serious crime.”
Section 241(b)(3)(B)(ii) of the Act contains language that is essentially identical to
section 208(b)(2)(A)(ii). The final paragraph of section 241(b)(3)(B) further provides in
relevant part:
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.
48
sections 208(b)(2)(A)(ii), 241(b)(3)(B)(ii) of the Act;1
8 C.F.R.
§§ 1208.13(c)(1), 1208.16(d)(2) (2012). In Alaka v. Attorney General of U.S.,
the Third Circuit found that an offense must be an aggravated felony to be
a particularly serious crime in order to render an alien ineligible for
withholding of removal. Subsequent to that decision, we issued Matter of
N-A-M-, which held that an offense need not be an aggravated felony to be
considered a particularly serious crime. The four Federal circuits that have
reviewed our decision found that the statutory language of the particularly
serious crime bar to withholding of removal is ambiguous, and they deferred
to our holding in that case. See Delgado v. Holder, 648 F.3d 1095, 1102-05
(9th Cir. 2011) (en banc); Gao v. Holder, 595 F.3d 549, 554-55 (4th Cir.
2010), cert. denied sub nom. Zhan Gao v. Holder, 131 S. Ct. 898 (2011);
N-A-M- v. Holder, 587 F.3d at 1055-56; Nethagani v. Mukasey, 532 F.3d 150,
156-57 (2d Cir. 2008).
In Matter of N-A-M-, we respectfully disagreed with the Third Circuit’s
interpretation that section 241(b)(3)(B)(ii) of the Act defines the term
“particularly serious crime” as a subset of aggravated felony offenses, and we
declined to address whether we would follow Alaka in the Third Circuit.
Matter of N-A-M-, 24 I&N Dec. at 341 n.5. We will now address this issue.Cite as 26 I&N Dec. 46 (BIA 2012) Interim Decision #3772
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The United States Supreme Court has held that a circuit court must accord
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), to an agency’s interpretation of a statute, regardless
of the circuit court’s contrary precedent, unless the prior court decision holds
that the construction follows from the unambiguous terms of the statute and
thus leaves no room for agency discretion. See Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs. (“Brand X”), 545 U.S. 967, 982-85 (2005);
see also Holder v. Martinez-Gutierrez, 132 S. Ct. 2011 (2012).
The DHS argues that we should apply the interpretation of section
241(b)(3)(B) of the Act that we set forth in Matter of N-A-M-, rather than rely
on Alaka, because the Third Circuit did not hold that section 241(b)(3)(B) was
unambiguous. See Brand X, 545 U.S. 967. The respondent asserts that Alaka
is binding precedent for all cases arising in the Third Circuit.
The determinative issue in this case is whether the Third Circuit found the
statutory language in section 241(b)(3)(B) to be unambiguous. Considering
the totality of the Third Circuit’s analysis in Alaka, we respectfully conclude
that the court did not expressly determine that the language in question was
unambiguous. We acknowledge the statement in Alaka that “[t]he plain
language and structure (i.e., context) of the statute indicate that an offense
must be an aggravated felony to be sufficiently ‘serious.’” Alaka v. Att’y Gen.
of U.S., 456 F.3d at 104. However, the court also stated that “the text and
structure of the statute suggest that an offense must be an aggravated felony
to be ‘particularly serious.’” Id. When discussing the language of section
241(b)(3)(B), specifically the final paragraph and whether it requires that an
offense must be an aggravated felony to be a particularly serious crime, the
Third Circuit used words such as “suggest” and “implies.” Id. at 104-05. In
view of the breadth of this terminology and the absence of further guidance on
this matter from the Third Circuit since Matter of N-A-M-, we conclude that
the court did not expressly find the language of section 241(b)(3)(B) of the
Act to be unambiguous and thereby leave no room for agency discretion.
See Brand X, 545 U.S. at 982.
Accordingly, we will respectfully apply our ruling in Matter of N-A-M- to
cases arising in the Third Circuit. See Brand X, 545 U.S. 967. We point out
that this result will promote national uniformity in the application of the
particularly serious crime bar for withholding of removal. See Delgado
v. Holder, 648 F.3d 1095; Gao v. Holder, 595 F.3d 549; N-A-M- v. Holder,
587 F.3d 1082; Nethagani v. Mukasey, 532 F.3d 150; Ali v. Achim, 468 F.3d
462, 470 (7th Cir. 2006) (noting that section 241(b)(3)(B) of the Act “does not
state a general rule that only aggravated felonies can be considered”
particularly serious crimes).
Furthermore, our holding will provide consistency in the treatment of the
particularly serious crime bars for asylum and withholding of removal in casesCite as 26 I&N Dec. 46 (BIA 2012) Interim Decision #3772
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arising in the Third Circuit. In Alaka, the court did not address the asylum
bar, which contains different and less particular language than its withholding
counterpart. Compare sections 208(b)(2)(A)(ii) and (B) of the Act
with section 241(b)(3)(B) of the Act. Based on the language of section
208(b)(2)(A)(ii), as clarified by section 208(b)(2)(B)(i), we conclude that an
offense need not be an aggravated felony to bar asylum and therefore that the
nature of the crime and the circumstances underlying the conviction are
relevant considerations in the context of both asylum and withholding
of removal. Cf. Matter of R-A-M-, 25 I&N Dec. 657, 659 (BIA 2012) (citing
Matter of N-A-M-, 24 I&N Dec. at 342). Thus, if our holding in Matter
of N-A-M- is not applied in the Third Circuit, there is a potential for the
anomalous result that one of the respondent’s offenses could be considered a
particularly serious crime for purposes of barring his asylum application based
on the particular facts and circumstances of his criminal conduct, but that these
considerations would not be relevant to his application for withholding of
removal.
We conclude that the respondent need not have been convicted of an
aggravated felony to be subject to the particularly serious crime bars for
asylum and withholding of removal. We will accordingly remand the record
for the Immigration Judge to analyze whether either of the respondent’s crimes
is “particularly serious.”
B. Adverse Credibility Determination
The respondent contests the Immigration Judge’s adverse credibility
finding. The adverse credibility determination is not clearly erroneous. See
section 240(c)(4)(C) of the Act, 8 U.S.C. § 1229a(c)(4)(C) (2006); Chukwu
v. Att’y Gen. of U.S., 484 F.3d 185, 189 (3d Cir. 2007) (“The REAL ID Act
substituted a new standard, according to which credibility determinations may
be made ‘without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim.’”); Matter of J-Y-C-, 24 I&N Dec.
260 (BIA 2007);see also Matter of R-S-H-, 23 I&N Dec. 629, 637 (BIA 2003)
(explaining the highly deferential nature of clear error review).
The Immigration Judge’s adverse credibility determination is based
primarily on discrepancies between the respondent’s testimony and other
evidence about the events underlying his convictions. The totality of
circumstances supports the Immigration Judge’s finding. See section
240(c)(4)(C) of the Act.
Significantly, the respondent’s account of events is not consistent with the
required elements of the crimes to which he pled guilty, especially indecent
assault. The respondent claims that he only pled guilty to bring his criminal
proceedings to a conclusion, but the Immigration Judge rejected thisCite as 26 I&N Dec. 46 (BIA 2012) Interim Decision #3772
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explanation. See Matter of D-R-, 25 I&N Dec. 445, 454 (BIA 2011)
(explaining that an Immigration Judge is not required to accept a respondent’s
assertions, even if plausible, where there are other permissible views of the
evidence based on the record).
Moreover, there is no clear error in the Immigration Judge’s determination
that the criminal complaint, bolstered by the testimony of the respondent’s
witness, is more reliable than the respondent’s testimony. The respondent
contends that the complaint is not reliable because there were inaccuracies
regarding his name and the time of the incident. However, as the Immigration
Judge pointed out, the respondent’s name was correctly identified on top of the
criminal complaint, even though it was listed incorrectly in the body of the
document itself. The Immigration Judge also found that the time listed for the
underlying event in the complaint was not necessarily a discrepancy, as the
respondent argued. We find the Immigration Judge’s interpretation of this
evidence to be reasonable. See Matter of D-R-, 25 I&N Dec. 445.
The Immigration Judge also based his determination on discrepant
evidence regarding a July 2006 incident in Pakistan, where the respondent said
he was confronted by village elders because he was teaching girls to speak
English. The Immigration Judge appropriately considered an omission from
the respondent’s written statement regarding what he was doing in the time
preceding this incident. More significantly, the Immigration Judge assessed
the evidence and concluded that the omission of the July 2006 event from
some of the supporting documentation undermined the respondent’s veracity.
We find no clear error here. Moreover, the Immigration Judge explained that
his adverse credibility determination primarily rested on the respondent’s
testimony regarding the events underlying his conviction. Thus, even without
considering the findings related to the 2006 incident, we would find no clear
error in the adverse credibility determination.
III. CONCLUSION
We conclude that Matter of N-A-M- should be applied in evaluating
whether either of the respondent’s convictions is for a particularly serious
crime, which would bar him from asylum and withholding of removal. We
will therefore remand the record for the Immigration Judge to address this
matter in the first instance.
In light of this holding, we decline to further address the merits of the
respondent’s applications for asylum and withholding of removal, and we
reserve any determination on whether he has established eligibility for
protection under the Convention Against Torture. On remand, both parties
should be afforded the opportunityto update the evidentiary record and present
additional legal arguments, and the Immigration Judge may revisit the issuesCite as 26 I&N Dec. 46 (BIA 2012) Interim Decision #3772
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of the respondent’s eligibility for relief and protection as appropriate. If the
respondent’s crimes are not deemed to be particularly serious, the Immigration
Judge should reassess his finding that the respondent did not establish a nexus
for purposes of withholding of removal. He should also examine whether this
determination conflicts with the factual findings made in support of his grant
of Convention Against Torture protection, which was based, at least in part,
on the respondent’s homosexuality.
ORDER: The respondent’s appeal is dismissed.
FURTHER ORDER: The appeal of the Department of Homeland
Security is sustained in part, and the record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for the
entry of a new decision.