Particular Serious Crime And Withholding Of Removal
Author: New York Deportation Lawyer Alena Shautsova
Withholding of removal often is the only form of relief for those who either missed their one year deadline to file an application for asylum, or those with previous immigration problems and in particular, previous removal. See 8 C.F.R. § 208.31(e) (describing “withholding-only” proceedings).
The burden of proof for withholding of removal relief is higher than for asylum, and the benefits of the status are less attractive than those that an asylum beneficiary can receive. However, withholding remains an option for somebody with no option to return back...
Just like with asylum, there are certain crimes that would disqualify an applicant from this status. A "particularly serious crime," under the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3)(B), and under the United Nations Convention Against Torture (CAT), see 8 C.F.R. § 1208.16(d)(2), renders a person ineligible for withholding of removal.
Which convictions fall under the "serious crime" category?
The Board of Immigration Appeals outlined the criteria in Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982). However, there is a whole line of cases that also discusses the standard and analysis that the court should follow in determining if a particular offense is particularly serious.
Any non-citizen who has been convicted of an "aggravated felony . . . for which he/she has been sentenced to an aggregate term of imprisonment of at least 5 years” automatically is deemed to have committed a "particularly serious crime." 8 U.S.C. § 1231(b)(3)(B); In re Y-L-, 23 I. & N. Dec. at 273. The INA defines the term "aggravated felony" to include "a drug trafficking crime." 8 U.S.C. § 1101(a)(43)(B). A drug trafficking offense committed in violation of state law automatically qualifies as a "drug trafficking crime" under this section if the defendant was convicted under a state statute that proscribes conduct necessarily punishable as a felony under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. See 18 U.S.C. § 924(c)(2); Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). Therefore, if a person is convicted of a state crime that necessarily would constitute a felony under the CSA, the crime of conviction qualifies as an "aggravated felony..."
Each case is different as facts of each case are different. It is virtually impossible for a person without an attorney to be able to overcome a finding of particular serious offense. Whenever a non-citizen is faced with criminal charges, he/she should contact an Immigration attorney immediately.