In re L-S-: Alien Convicted of Alien Smuggling May Apply for Withholding

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

IN RE L–S–: ALIEN CONVICTED OF ALIEN SMUGGLING MAY APPLY FOR WITHHOLDING
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999

In the case of a former Laotian refugee convicted of illegally bringing an alien into the United States, the Board of Immigration Appeals has ruled that the conviction does not automatically bar the respondent from eligibility to apply for withholding of removal. The en banc panel held that a conviction for an aggravated felony resulting in less than five years’ imprisonment can be considered a "particularly serious crime" only if an individual examination of the circumstances surrounding the conviction warrants such a conclusion. After undertaking such a review of the respondent’s felony conviction, the BIA held that he is eligible to apply for withholding relief.

Under section 241(b)(3)(B) of the Immigration and Nationality Act, an individual convicted of a "particularly serious crime" is barred from eligibility for withholding relief and loses the chance to establish that removal to his or her home country would more likely than not endanger his or her life or freedom on account of race, religion, nationality, political opinion, or membership in a particular social group. Following the respondent’s conviction, the immigration judge agreed with the Immigration and Naturalization Service’s charges and found him inadmissible and ineligible for all forms of relief.

In reversing the IJ’s ruling, the BIA noted that under the INA provisions governing withholding relief, an alien convicted of an aggravated felony is considered to have committed a "particularly serious crime" only if the alien was sentenced to five years or more in prison. However, because Congress also granted the attorney general discretionary authority to designate other crimes as "particularly serious," irrespective of length of sentence imposed, the BIA chose to follow the reasoning it had set forth in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982), a prior matter involving the BIA’s evaluation of a crime’s seriousness.

After considering the specifics of the respondent’s conviction (i.e., time served, absence of evidence that he intended to harm the smuggled alien, no prior record of criminal convictions), the BIA sustained the respondent’s appeal and remanded the matter to the IJ to permit the respondent to apply for withholding relief.

In re L–S–, Int. Dec. 3386 (BIA Apr. 16, 1999).