A refugee from Laos who has been a lawful permanent resident of the United States since 1989 is ineligible for withholding of removal because in 1994 he was convicted in Washington State of an aggravated felony—first degree armed robbery—that the Board of Immigration Appeals has determined was a "particularly serious crime" within the meaning of Immigration and Nationality Act section 241(b)(3)(B).

Under that provision, a determination about whether a conviction for aggravated felony constitutes a conviction for a "particularly serious crime" is based primarily on the length of the sentence that the criminal court imposed.  If the sentence imposed is five years or more of imprisonment, the conviction is for a "particularly serious crime."  However, the provision also specifically states that the attorney general is "not precluded" from determining that an alien who has been convicted of an aggravated felony and sentenced to less than five years’ imprisonment has been convicted of a "particularly serious crime."

Under INA section 241(b)(3)(B)(ii), an alien who has been convicted of a "particularly serious crime" is "a danger to the community of the United States" and ineligible for withholding of removal.  Since, under INA sections 208(b)(2)(A)(ii) and (B)(i), a person convicted of an aggravated felony is ineligible for asylum in the U.S., the respondent in this case is ineligible for relief of any kind.

In arriving at its determination that the respondent’s crime was "particularly serious," the BIA considered "the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction."  In justifying its consideration of "circumstances and underlying facts," the BIA held:  "In the absence of a satisfactory showing that every robbery conviction, or even every armed robbery conviction, under [the Washington State criminal statute] or any other statute constitutes a ‘particularly serious crime’ in all cases, consideration of the individual facts and circumstances is appropriate."

Upon his conviction in 1994 for first degree armed robbery, the respondent had been sentenced to 55 months in prison, 5 months short of the five-years’-imprisonment threshold that would have automatically made his conviction one for a "particularly serious crime."  In addition, the court ordered him to serve an additional two years of "community placement."

With respect to the nature of his conviction, to be convicted of first degree armed robbery under the applicable Washington statute, the offender must either have been armed with a deadly weapon, displayed what appeared to be a deadly weapon, or injured a victim of the robbery.  In fact, the respondent and two partners invaded the victims’ home, used threats and actual force—which included displaying a handgun—to take jewelry and a purse from the victims, and pulled one of the victims out of a shower.

Based on these elements and facts, the BIA found that the respondent’s crime was particularly serious, agreed with the immigration judge’s finding that he was ineligible for any relief and the IJ’s order that he be removed from the U.S. to Laos, and dismissed his appeal.

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