BIA Has Authority to Expand List of “Particular Serious Crimes” Which Would Limit Asylum Claims

Delgado v. Holder (9th Cir. 8/19/2011)

Most folks with a passing understanding of immigration law know that certain crimes will lead to the denial of immigration benefits or removal.  For instance, you would be ineligible for asylum if you were convicted of an aggravated felony, regardless of how meritorious your claim of persecution may be.  Most crimes which would constitute an aggravated felony have been enumerated by the immigration statutes and regulations.  A lesser known provision of the same statutes provide that particularly serious crimes not enumerated can also serve as a bar to asylum benefits.  The meaning of “particularly serious crime” is not defined.  Instead, the statutes permit the U.S. Attorney General (really the BIA acting on behalf of the Attorney General), to designate by regulation offenses which would fall under the category of a “particularly serious crime.”  Such a crime must also constitute a danger to the community of the United States.

The Delgado case involves an asylum applicant who had been convicted of DUI three times.   The immigration judge denied his application because the judge determined that his DUI offenses were particularly serious crimes which constituted a threat to the community.  The applicant appealed, and the BIA affirmed the denial.  The case was further appealed to the 9th Circuit.  The issue on appeal was whether the BIA has the authority to designate offenses as a particular serious crime on a case by case basis.  The applicant argued that the BIA lacked the authority to treat his DUI offenses as particularly serious crimes for purposes of asylum because only statutorily defined aggravated felonies can be treated as such, only aggravated felonies and offenses designated by the Attorney General by regulation can constitute a particular serious crime, and even if the BIA had the authority to designate on a case by case basis an offense constitute a particularly serious crime, the applicant’s DUI convictions cannot be considered as such.

The court did not accept the applicant’s arguments and found, consistently with other appellate circuits, that the BIA does have the authority to make a determination of whether an offense is a particular serious crime through case by case adjudication.  The court did not find, however, that the BIA had sufficiently articulated a reasonable basis for finding that the applicant’s DUI conviction constituted a particularly serious crime.  In a forcefully argued concurrence, one justice made the case that a DUI conviction should not be considered a particular serious crime because such a category of offenses are generally reserved for crimes that are truly heinous, such as murder, rape, or sexual assault of a minor.

What this case means is that asylum applicants who have criminal convictions may be found to have a meritorious claim, yet be denied relief due to a finding that he or she committed a particularly serious crime.  Note that a particularly serious crime does not need to be an aggravated felony.  If the past is any indication (consider the history of the evolution of the definition of “crimes
involving moral turpitude”), the BIA will make its determinations with little regard for the original purpose of the statute, to keep the worst of the worst out of the country.


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