AG Creates Per Se Rule That Drug Trafficking Convictions Are Particularly Serious Crimes

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

AG CREATES PER SE RULE THAT DRUG TRAFFICKING CONVICTIONS ARE PARTICULARLY SERIOUS CRIMES
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

After directing the Board of Immigration Appeals to refer three cases to him involving persons who had past drug trafficking convictions, U.S. Attorney General John Ashcroft has held that each of the three individuals had been convicted of a "particularly serious crime." In doing so, he held that, except in extraordinarily rare situations, drug trafficking convictions presumptively constitute particularly serious crimes. His decision expressly overrules the BIA's decision in Matter of S-S-, Int. Dec. 3374 (BIA 1999). Ashcroft also concluded that without conclusive evidence that a non-U.S. citizen who is removed from the U.S. would face torture at the hands of the government of his or her home country, the noncitizen's claims that he or she would face torture do not warrant the granting of deferral of removal pursuant to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture, or CAT).

The three respondents in the cases Ashcroft reviewed had sought withholding of removal under section 241(b)(3) of the Immigration and Nationality Act and under Article 3 of the CAT, 8 C.F.R. section 208.16, because their drug trafficking convictions constitute aggravated felonies, which bar most forms of relief from removal. Taken together, section 241(b)(3) and the CAT provide that noncitizens may not be removed to their home countries if it is more likely than not that there they will be threatened, harmed, or tortured. Although only one of the three respondents had been granted withholding by an immigration judge, the BIA held that all three were entitled to withholding relief.

Section 241(b)(3) bars withholding relief to individuals who have been convicted of a particularly serious crime. Although "particularly serious crime" is not defined in the statute, section 241(b)(3)(B) provides that an individual who has been sentenced to an aggregate term of imprisonment of at least five years shall be considered to have committed a particularly serious crime. However, subsection 241(b)(3)(B) also provides that the attorney general is not precluded from determining that, "notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime" (emphasis added).

In overturning the BIA's grants of withholding in the three cases, the attorney general relied on this latter provision in section 241(b)(3)(B) to impose a per se rule that drug trafficking crimes constitute particularly serious crimes. In doing so, he overruled Matter of S-S-, a case in which the BIA analyzed Congress's elimination, via the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), of a previous per se rule that all aggravated felonies are particularly serious crimes. In that case, the BIA held that Congress's elimination of the per se rule warranted individualized, case-by-case reviews to determine which crimes are "particularly serious." The BIA reasoned that Congress's elimination of the per se rule language, coupled with the fact that Congress added language tying the determination of whether a crime is "particularly serious" to the length of the sentence imposed, evidenced a congressional intent that such determinations should be based on the sentence length rather than the type of crime committed.

Disagreeing with the BIA's reasoning, Ashcroft concluded that the statute's provision that a crime for which a five-year imprisonment has been imposed is per se "particularly serious" does not indicate that Congress intended the nature of the crime to receive less consideration in the determination of whether it falls within that category. Moreover, he held that the statute grants him authority to issue a presumptive rule. He then cited a litany of cases and reports to prove that Congress is particularly concerned about drug trafficking and desires to treat it harshly as a particularly serious crime.

The attorney general nevertheless left room for exceptional cases in which a drug trafficking crime should not be considered a particularly serious crime under his per se rule. For a crime to be exempted under his rule, all of the following must apply: (1) the crime must have involved a very small quantity of controlled substances; (2) the amount of money paid for the drugs in the transaction must have been very modest; (3) the convicted person's involvement in the criminal activity must have been merely peripheral; (4) the crime must not have involved any threatened or express violence; (5) no organized crime or terrorist organization may have been involved in the crime; and (6) the criminal activity must have had no adverse or harmful effect on juveniles. He added that the following, commonplace factors do not justify deviation from the rule: cooperation with law enforcement, limited criminal history, a lowered sentence, or claims of contrition or innocence.

Holding that under the new per se rule the individuals in the three cases are statutorily ineligible for withholding of removal due to their convictions, the attorney general then analyzed their claims under the CAT. The CAT allows deferral of removal notwithstanding prior criminal offenses. In order to make out a claim for relief under the CAT, individuals must show that it is more likely than not that, if they were removed to their country of origin, there they would be tortured by, or with the acquiescence of, government officials acting under color of law. The regulations implementing the CAT allow for relief from removal only if the person applying for relief shows that torture would be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." According to the attorney general, applicants must show that current government officials in the country of origin acting in an official capacity would likely commit the abuse. The treaty does not provide protection against possible violence that might be committed by individuals over whom the government has no reasonable control. Applying these standards, Ashcroft found none of the individuals eligible for relief under the CAT.

In re Y-L-, In re A-G-, In re R-S-R-, Int. Dec. 3464 (A.G. 2002).