Based on Immigration and Nationality Act section 241(b)(3), which renders individuals convicted of "particularly serious crimes" ineligible for withholding relief, the immigration judge had ordered the respondent removed.  Under that section, aggravated felonies are considered "particularly serious" if the aggregate of the resulting term of imprisonment is at least five years.  The two concurrent one- to three-year sentences imposed on the respondent amounted, the IJ held, to a six-year aggregate sentence.

Citing Matter of Fernandez, 14 I. & N. Dec. 24 (BIA 1972), a prior case in which it addressed the issue of aggregate sentences, the BIA disagreed and found that "where a judge in criminal proceedings imposes concurrent sentences, the defendant’s ‘aggregate sentence’ is equal to the length of the longest concurrent sentence."  Based on that method of calculation, the BIA concluded that the respondent had been sentenced to less than five years’ imprisonment.  Pursuant to its recent ruling in Matter of S–S– (holding that a felony conviction resulting in less than five years’ imprisonment constitutes a "particularly serious crime" only if an individual examination of the conviction’s circumstances warrants such a conclusion), the BIA remanded the matter and ordered the IJ to develop further the record and properly determine whether the respondent’s offenses were particularly serious.