Under the Immigration and Nationality Act (“INA”), asylum and withholding of removal are unavailable to a non-citizen who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” We have previously discussed Asylum and Withholding cases here.
The INA specifies that aggravated felony convictions are per se or automatically considered to be particularly serious crimes for purposes of asylum, and that aggravated felonies are per se particularly serious crimes for purposes of withholding of removal if the respondent was sentenced to an aggregate term of imprisonment of at least five years. We have previously discussed aggravated felonies here.
Crimes that are not considered Aggravated Felonies
For all other offenses, the INA does not specify when a crime qualifies as particularly serious. The Board has filled that statutory gap by holding that, where the statute’s per se rules do not apply, adjudicators must determine on a case-by-case b9/asis whether a conviction is for a particularly serious crime.
The Immigration Courts have held that “the essential key” in determining whether an offense is particularly serious is whether it indicates that the noncitizen poses a danger to the community.
The Immigration Courts have found the following to be particularly serious crimes: burglary of a dwelling which included aggravating circumstances; shooting with intent to kill and robbery. The courts have held that possession of cocaine for sale and possession of heroin with intent to distribute are particularly serious crimes, but simple possession of cocaine is not. The Immigration Courts have also taken the view that any drug trafficking crime as defined under federal law, no matter how small, is a particularly serious crime. However, the Courts have also held that this presumption of a particularly serious crime applying to drug trafficking cases can be potentially overcome under very specific circumstances.
An individual subject to this presumption would have to demonstrate the most extenuating circumstances that are both extraordinary and compelling. Those circumstances must include, at a minimum: (1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the individual in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles.
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