N-A-M v. Holder

FILED
United States Court of Appeals
Tenth Circuit

November 20, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

N-A-M,

Petitioner,
v. Nos. 07-9580 and 08-9527

ERIC H. HOLDER, JR. Attorney
General of the United States

Respondent,

UNITED NATIONS HIGH
COMMISSIONER FOR REFUGEES;
DEBORAH ANKER; GUY S.
GOODWIN-GILL; JAMES C.
HATHAWAY;

Amici Curiae.

PETITION FOR REVIEW OF A FINAL ORDER OF THE BOARD OF
IMMIGRATION APPEALS

Laura L. Lichter, Lichter & Associates, P.C., Denver, Colorado, for Plaintiff-
Appellant.

Margaret J. Perry, Senior Litigation Counsel (Joanne E. Johnson, Attorney, with
her on the brief), Office of Immigration Litigation Civil Division, United States
Department of Justice, Washington D.C., for Defendant-Respondent.

Steven H. Schulman and Vivek Arora, Akin Gump Strauss Hauer & Feld,
Washington, D.C., filed an Amicus Curiae brief for The United Nations High
Commissioner for Refugees, in support of Petitioner.
Deborah Anker, Cambridge, Massachusetts, and Jeff Joseph, Joseph Law Firm,
Denver, Colorado, filed an Amicus Curiae brief for Deborah Anker, Guy S.
Goodwill, and James C. Hathaway, in support of Petitioner.

Before HENRY, Chief Judge, MURPHY and TYMKOVICH, Circuit Judges.

PER CURIAM

Petitioner N-A-M seeks review of a Board of Immigration Appeals’

(“BIA”) decision to remove her to her native El Salvador. 1 Although the

Immigration Judge determined that N-A-M had a “viable persecution claim,” I.J.

Dec. at 8, the Immigration Judge denied, and the BIA affirmed, her petition for

withholding of removal because she had been convicted of felony menacing—a

“particularly serious crime,” pursuant to the Refugee Act of 1980, Pub. L. 96-202,

94 Stat. 102, see 8 U.S.C. § 1231.

On appeal, N-A-M asserts three legal errors in the BIA’s decision: First,

she argues that felony menacing does not constitute a “particularly serious

offense” as contemplated by § 1231; second, she asserts that the BIA applied the

wrong legal framework in adjudicating her case; and third, she contends that she

1
N-A-M is a preoperative transgender person and wishes to be addressed as
a female. In re N-A-M, 24 I&N Dec. 336 (BIA 2007). The Immigration Judge
refers to N-A-M as a female, stating that N-A-M “testified that she came from a
family of four boys and three girls and at the age of 11 she discovered that she
had what we might call a discrepancy in her gender.” I.J. Dec. at 2–3.
Accordingly, this court refers to N-A-M as a female.

2
was denied due process of law. Finding no error of law, we affirm.

BACKGROUND

Appellant, N-A-M, is a thirty-eight year old preoperative transsexual (male-

to-female) from El Salvador. In El Salvador, N-A-M was subjected to multiple

instances of persecution due to her transgendered status, and fled to the United

States in 2004, entering without inspection.

In June 2005, N-A-M was convicted of felony menacing, in violation of

Colo. Rev. Stat. § 18-3-206(1)(a), (b) and reckless endangerment, in violation of

Colo. Rev. Stat. § 18-3-208. Upon conviction, N-A-M was sentenced to four

years deferred judgment and four years of probation.

In November 2006, N-A-M was served with a Notice to Appear before an

immigration judge to show why she should not be removed from the United

States. She filed an application for asylum pursuant to 8 U.S.C. § 1158, an

application for withholding of removal, pursuant to 8 U.S.C. § 1231(b)(3), and an

application for withholding of removal under the regulations implementing the

Convention Against Torture, at 8 C.F.R § 1208.16(c), 18. Of these, only N-A-

M’s withholding claim is before us.

Under 8 U.S.C. § 1231(b)(3)(A),

the Attorney General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political
opinion.

3
However, § 1231(b)(3)(B)(ii) provides an exception to withholding of removal
if:

(B) Exception.
Subparagraph (A) does not apply to an alien deportable under
section 1227(a)(4)(D) of this title or if the Attorney General decides
that--

....

(ii) the alien, having been convicted by a final judgment of a
particularly serious crime is a danger to the community of the United
States; . . .

....

For purposes of clause (ii), an alien who has been convicted of an
aggravated felony (or felonies) for which the alien has been sentenced
to an aggregate term of imprisonment of at least 5 years shall be
considered to have committed a particularly serious crime. The
previous sentence shall not preclude the Attorney General from
determining that, notwithstanding the length of sentence imposed, an
alien has been convicted of a particularly serious crime. For purposes
of clause (iv), an alien who is described in section§ 1227(a)(4)(B) shall
be considered to be an alien with respect to whom there are reasonable
grounds for regarding as a danger to the security of the United States.

(emphasis added).

The Immigration Judge found that although N-A-M has suffered persecution

as contemplated by § 1231(b)(3)(A), her conviction for felony menacing rendered

her eligible for removal pursuant to § 1231(b)(3)(b)(ii). The Immigration Judge

stated that although N-A-M “has been persecuted in the past . . . [She] has been

convicted of a particularly serious crime and thereby constitutes a danger to the

community. . . . And, therefore, even though the respondent has a viable

4
persecution claim, [her] application is denied as a matter of law.” I.J. Dec. at 7–8.

In April 2007, N-A-M appealed the Immigration Judge’s decision to the

BIA, contending that the Immigration Judge erred in his construction of § 1231,

and violated her due process rights by considering evidence outside of the record

of conviction. In a published decision, the Board affirmed the decision of the

Immigration Judge. In re N-A-M, 24 I. & N. Dec. 336 (BIA 2007). Turning first

to N-A-M’s particularly serious offense claim, the BIA concluded that “Congress

did not intend to limit what offenses may be particularly serious crimes to those

offenses classified as aggravated felonies.” Id. at 341. As to N-A-M’s danger

to the community claim, the BIA observed that it “no longer engage[d] in a

separate determination to address whether the alien is a danger to the

community.” Id. at 341. And finally, in addressing N-A-M’s due process

challenge, the BIA noted that it “may examine all reliable information and [is]

not limited to reviewing the record of conviction and sentencing information.”

Id. at 343.

The Board denied N-A-M’s petition for rehearing en banc on March 11,

2008. These petitions followed.

DISCUSSION

Under 8 U.S.C. § 1252(a)(2), we have jurisdiction to review constitutional

challenges and questions of law raised in a petition for review from a BIA

decision. Brue v. Gonzales, 464 F.3d 1227, 1231 (10th Cir. 2006) (citing 8

5
U.S.C. § 1252(a)(2)(D)). We review N-A-M’s statutory challenge and her due

process claim de novo. 2 Id. at 1232. Consistent with the rule in Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984),

the BIA is entitled to deference in interpreting ambiguous provisions of the INA

under the specific facts of this case.

1. Non-aggravated felonies may constitute “particularly serious” crimes for
purposes of 8 U.S.C. § 1231.

N-A-M challenges the BIA’s statutory construction of what constitutes a

“particularly serious crime” under § 1231. See Aplt’s Br. at 43. She urges us to

accept our sister circuit’s limitation of “particularly serious” offenses to

aggravated felonies. 3 See, e.g., Alaka v. Atty Gen’l of the U.S., 456 F.3d 88, 104

2
Although Respondents do not argue that we are without jurisdiction to
examine the “particularly serious” crime challenge, to the extent that there is any
dispute, we refer to our decision in Brue, which observed that “[w]hile we cannot
reweigh evidence to determine if the crime was indeed particularly serious, we
can determine [under 8 U.S.C. § 1252(a)(2)] whether the BIA applied the correct
legal standard in making its determination. . . . We review [these] issues raised in
the petition de novo.” 464 F.3d at 1232 (internal quotation marks omitted).
3
Section 101(a)(43) of the INA defines “aggravated felony” to include,
inter alia, “a crime of violence (as defined in section 16 of title 18, but not
including a purely political offense) for which the term of imprisonment [is] at
least one year.” 8 U.S.C. § 1101(a)(43)(F) (footnote omitted). In the record
before the BIA, N-A-M’s felony menacing conviction did not qualify as an
“aggravated felony.” The parties have informed the court that N-A-M has been re-
sentenced twice since the conviction. First, N-A-M was re-sentenced to a term of
one year, with 365 days credit for time served. Then, N-A-M was resentenced
again to a term of 364 days. This factual addition might alter the “particularly
serious crime” analysis. We, however, are statutorily precluded from
consideration of this development under 8 U.S.C. § 1252(b)(4)(A) (“[T]he court
(continued...)

6
(3d Cir. 2006) (“The plain language and structure (i.e., context) of the statute

indicate that an offense must be an aggravated felony to be sufficiently

‘serious.’”) (emphasis in original). Because her conviction did not constitute an

aggravated felony, she argues, the BIA erred in classifying her felony menacing

conviction as a “particularly serious” offense.

The BIA has developed administrative standards for determining what

constitutes a particularly serious crime. See Matter of Frentescu, 18 I. & N. Dec.

244, 247 (BIA 1982) (“In judging the seriousness of a crime, we look to such

factors as the nature of the conviction, the circumstances and underlying facts of

the conviction, the type of sentence imposed, and, most importantly, whether the

type and circumstances of the crime indicate that the alien will be a danger to the

community.”). We agree that apart from the designation of certain aggravated

felonies as “particularly serious” offenses, the statute contains no limiting

language restricting the Attorney General’s discretion to label other crimes as

“particularly serious.” And, “[t]he long history of case-by-case determination of

‘particularly serious’ crimes” counsels against N-A-M’s attempt to craft a bright-

line rule. Delgado v. Holder, 563 F.3d 863, 868 n.7, 869 (9th Cir. 2009) (noting

that nothing in the statutory framework indicates an intent “to eliminate the

3
(...continued)
of appeals shall decide the petition only on the administrative record on which the
order of removal is based.”). We posit that even if we were to take the
resentencing into account, we would reach the same conclusion.

7
Attorney General’s pre-existing discretion to determine that, under the

circumstances presented by an individual case, a crime was ‘particularly

serious’”). Furthermore, Congress’s use of two different terms–“particularly

serious” crime and “aggravated felony”– is additionally indicative of

substantively distinct meanings. See, e.g., United States v. Villanueva-Sotelo,

515 F.3d 1234, 1249 (D.C. Cir. 2008). Given these somewhat open-ended

definitions, the BIA or the Attorney General is authorized to develop a

reasonable construction § 1231 to which we defer under Chevron.

2. Section 1231 does not require a separate “danger to the community”
assessment.

Section 1231(b)(3)(b)(ii) empowers the Attorney General to deny

withholding to alien petitioners upon a determination that the petitioner “having

been convicted by a final judgment of a particularly serious crime is a danger to

the community of the United States.” The BIA construes this provision as

requiring only an inquiry into whether the alien has committed a particularly

serious crime. “[O]nce an alien is found to have committed a particularly serious

crime, we no longer engage in a separate determination to address whether an

alien is a danger to the community.” 24 I. & N. Dec. at 342. N-A-M challenges

the BIA’s construction of § 1231, contending that the BIA’s omission of an

inquiry into whether the facts and circumstances of her felony menacing

conviction warranted a finding that she is a danger to the community constitutes

8
a misapplication of the legal standard articulated § 1231.

Although N-A-M and the distinguished amici make strong arguments that the

BIA is not accurately interpreting the statute and its treaty-based under-pinnings,

we are constrained by our precedent to hold otherwise. In Al-Salehi v. INS, as

conceded by Amicus Curiae United Nations High Commissioner for Refugees, we

affirmed the BIA’s interpretation of § 1231, holding that no separate danger-to-the-

community assessment is required under the statute. 47 F.3d 390, 393 (10th Cir.

1995) (citing In re Carballe, 19 I. & N. Dec. 357, 360 (1986) (“The phrase ‘danger

to the community’ is an aid to defining a ‘particularly serious crime,’ not a mandate

that administrative agencies or the courts determine whether the alien will become

a recidivist.”)). And, as the Second Circuit noted in Ahmetovic v. INS, this

“interpretation conflating the two requirements has been accepted by every circuit

that has considered the issue.” 62 F.3d 48, 53 (2d Cir. 1995) (collecting cases); see

Choeum v. INS, 129 F.3d 29, 42–43 (1st Cir. 1997) (deferring to the BIA’s

construction of § 1231)); Yousefi v. INS, 260 F.3d 318, 327–28 (4th Cir. 2001)

(same); Martins v. INS, 972 F.2d 657, 661 (5th Cir. 1992) (same); Hamama v. INS,

78 F.3d 233, 240 (6th Cir. 1996) (same); Garcia v. INS, 7 F.3d 1320, 1323 (7th Cir.

1993) (same). We abide by our rule in Al-Salehi and affirm the BIA’s construction

of § 1231 here; indeed, we remind amici that a panel of this court cannot overturn

the decision of a previous panel absent a change in the law. United States v.

Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000).

9
3. N-A-M suffered no denial of due process.

Following our precedent that the BIA reasonably construed 8 U.S.C. §

1231, we turn to N-A-M’s due process challenge. Under our cases, “when facing

removal, aliens are entitled only to procedural due process, which provides the

opportunity to be heard at a meaningful time and in a meaningful manner.”

Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (internal quotation

marks omitted). N-A-M asserts that the BIA’s reliance on a Statement in

Support of Warrantless Arrest (“the Statement”) in its “particularly serious

crime” analysis violated her due process rights. Although the events articulated

in the Statement did result in her felony menacing conviction, the document

itself, she contends, reflects hearsay allegations of sexual misconduct for which

she received no criminal sanction.

The evidentiary rules are not so strictly applied in immigration hearings.

See Bauge v. INS, 7 F.3d 1540, 1543 (10th Cir. 1993). The test for admissibility

of evidence in a deportation hearing is whether the evidence is probative and its

use is fundamentally fair. Id. Under our precedent dictating the evidentiary

rules for immigration proceedings, we find no fundamental unfairness in the

BIA’s use of the Statement; N-A-M was free to contest the statement with her

own evidence. Accordingly, we reject N-A-M’s contention that the BIA’s

reliance on the statement denied her due process.

10
 CONCLUSION

The BIA’s reasonable construction of § 1231 is entitled to our deference,

and N-A-M suffered no deprivation of her due process rights. Accordingly, we

AFFIRM the decision of the BIA.

11
08-9527, 07-9580, N-A-M v. Holder

HENRY, Circuit Judge, concurring:

Although I concur in the outcome of this case, I write separately to address

two issues. Turning first to N-A-M’s claim that only aggravated felonies

constitute “particularly serious crimes,” although Chevron deference directs us to

affirm the Bureau of Immigration Appeals’ (BIA) rejection of this argument and

this provision presents no Chevron exception, it is worth noting that our

immigration statutory framework is notoriously complex and the meaning of the

statutory language has been a moving target since its inception.

Second, I think that the gravamen of this case involves whether the

Refugee Act’s withholding of removal provision, 8 U.S.C. § 1231(b)(3)(b)(ii),

which incorporates our obligations under the United Nations Convention

Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951), requires an

inquiry into both whether N-A-M has been convicted of a “particularly serious”

offense and constitutes a “danger to the community.” Stare decisis binds us to

the language of Al-Salehi v. INS, 47 F.3d 390, 393 (10th Cir. 1995), which

affirmed the BIA’s determination that § 1231 does not require a separate inquiry

into whether an alien constitutes a danger to the community.

I find, however, N-A-M and amici’s arguments persuasive that the

interpretation from Al-Salehi is at odds with the language of § 1231, with some

basic principles of statutory construction, the purpose and intent behind the

Refugee Act, and the international legal principles embodied in the Refugee Act.
I urge the Attorney General and the Secretary of State to consider the arguments

of amici here, the treaty underlying this provision, and the jurisprudence of

fellow signatories to the underlying international commitments. Perhaps the BIA

should consider reverting to its previous standards.

I. Section 1231’s “particularly serious” offense inquiry is a moving target
and fickle standard.

In light of the absence of explanatory statutory language defining

“particularly serious” for purposes of § 1231, we give the BIA’s construction

Chevron deference. Brue v. Gonzales, 464 F.3d 1227, 1234 (10th Cir. 2006);

Mosquera-Perez v. INS, 3 F.3d 553 (1st Cir. 1993). I believe it is important to

note, however, that several Congressional amendments, substantive

administrative changes by the BIA, and a circuit split, subject the provision to

different interpretations.

Originally, Congress enacted 8 U.S.C. § 1253(h), now § 1231, in response

to our ratification of Protocol 33 to the United Nations’ Refugee Convention.

Under § 1253(h), withholding was denied to those aliens who “having been

convicted by a final judgment of a particularly serious crime, constitute[] a

danger to the community of the United States” (emphasis added). Under this

amendment, the BIA determined on a case-by-case basis which crimes were

particularly serious, applying the test articulated by the BIA in Matter of

Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982) (“In judging the seriousness of a

2
crime, we look to such factors as the nature of the conviction, the circumstances

and underlying facts of the conviction, the type of sentence imposed, and, most

importantly, whether the type and circumstances of the crime indicate that the

alien will be a danger to the community.”). Subsequently the BIA identified a

class of crimes as inherently particularly serious, so as to eliminate the case-by-

case determinations in those cases. See, e.g., Matter of Garcia-Garrocho, 19 I.

& N. Dec. 423, 425 (BIA 1986) (“We find that the applicant’s conviction for

burglary in the first degree is within the category of crimes that are per se

‘particularly serious.’”).

The statutory provision barring “particularly serious” criminals from

eligibility from withholding of removal has been subjected to three amendments.

With the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,

Congress established a per se category of “particularly serious” criminals

comprised of aliens convicted of aggravated felonies.

In 1996, with the enactment of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, 1269

(1996), Congress, in order to comply with agreed to international obligations,

relaxed its categorical bar on aggravated felons. Delgado v. Holder, 563 F.3d

863, 869 (9th Cir. 2009). Congress amended § 1253(h) to permit the Attorney

General to overcome the per se rule banning aggravated felons where “necessary

to ensure compliance with the 1967 United Nations Protocol Relating to the

3
Status of Refugees.” Id. (citing the AEDPA, Pub.L. No. 104-132, 110 Stat.

1214, 1269).

Congress addressed this provision again in 1996 with the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),

Division C of Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-602. The IIRIRA

Amendments create the statute’s current form and categorically apply a bar from

withholding those aggravated felons sentenced to five years’ or more

imprisonment. Id.

Our resolution of the issue presented in this case turns on the meaning

behind Congress’s post-1990 statutory enactments. Congress’s seeming

relaxation of the categorical aggravated felony bar suggests an effort to avoid the

inclusion of minor crimes in the class of per se “particularly serious” offenses.

The extent of that relaxation, however, is subject to debate—or, at least, has been

subject to debate both within the administrative agency, as discussed in Section

II, and among the courts. Compare Ali v. Achim, 468 F.3d 462, 470 (7th Cir.

2006) (noting that § 1231 “does not state a general rule that only aggravated

felonies can be considered” particularly serious crimes) with Alaka v. Atty Gen’l

of the U.S., 456 F.3d 88, 105 (3d Cir. 2006) (“We therefore conclude that an

offense must be an aggravated felony in order to be classified as a ‘particularly

serious crime.’”).

The BIA has developed administrative standards for determining what

4
constitutes a particularly serious crime. These standards, however, appear to be

somewhat in flux. With Frentescu in 1982, the BIA articulated four factors

relevant to the § 1231 (at that time, the § 1253(h)) inquiry. Specifically (and

logically for that matter), the BIA noted that, “[i]n judging the seriousness of a

crime, we look to such factors as [1] the nature of the conviction, [2] the

circumstances and underlying facts of the conviction, [3] the type of sentence

imposed, and, most importantly, [4] whether the type and circumstances of the

crime indicate that the alien will be a danger to the community.” 18 I. & N. Dec.

at 247 (emphasis added).

But over time, however, the BIA retreated substantially from Frentescu’s

danger-to-the-community prong. In the BIA’s 1992 decision, Matter of C-, the

BIA suggested that, except in the case of the aggravated felony, Frentescu

remained the administrative standard in terms of defining “particularly serious”

offenses. See Matter of C-, 20 I. & N. Dec. 529, 534 n.3 (BIA 1992) (“There

will of course continue to be situations requiring a determination whether a

‘particularly serious crime’ exists under Frentescu; such is the case, for example,

where the crime does not technically qualify as an aggravated felony under the

Act based on the conviction date.”). Despite the clear presence of the phrase in

the statute and the logical pronouncement in Frentescu that the phrase is the

most important factor, the “danger to the community” prong is now absent from

the BIA’s reiteration of the relevant factors in this case. See In re N-A-M, 24 I.

5
& N. Dec. 336, at 342 (BIA 2007) (“[W]e examine the nature of the conviction,

the type of sentence imposed, and the circumstances and underlying facts of the

conviction.” (citing Matter of Q-T-M-T-, 21 I. & N. Dec. 639 (BIA 1996))). In

fact, it appears that the BIA may now disregard Frentescu altogether. Id. (“On

some occasions, we have focused exclusively on the elements of the offense, i.e.,

the nature of the crime.”); but see Brue, 464 F.3d at 1234 (affirming the BIA’s

use of the proper legal standard when it used only “two of the [four] Frentescu

factors, including the most important one, danger to the community”). Indeed, in

this case, the BIA expressed its conclusion that N-A-M satisfies the “particularly

serious” crime element on the basis of the elements of the offense alone. 24 I. &

N. Dec. at 342–43 (“We find that the respondent’s offense is a particularly

serious crime based solely on its elements.”).

Our precedent requires us to defer to the BIA’s reasonable construction of

§ 1231, and we abide by it here. I note, however, that the BIA’s continually

competing and definitionally inconsistent constructions of § 1231 frustrate our

function as a reviewing court and threaten the reasonableness of its

interpretations.

II. N-A-M and amici make persuasive arguments that Al-Salehi is contrary to
8 U.S.C. § 1231.

The Immigration Judge summarily stated that N-A-M constituted a danger

to the community that statutorily barred the withholding of removal, a finding

6
that may indeed be factually true as well as legally affirmable. The Immigration

Judge, however, did not engage in an analysis as to whether N-A-M actually

constituted a danger to the community either under Frentescu or any other

model. Presumably, the absence of such an analysis is because, as the BIA has

now construed § 1231, “this [inquiry] is subsumed within the determination that

the crime is a particularly serious one.” Aple’s Br. at 30; see In Matter of

Carballe, 19 I. & N. Dec. 357, 360 (1986) (“The phrase ‘danger to the

community’ is an aid to defining a ‘particularly serious crime . . . .’”).

Although the circuit consensus, including that of our own, see Al-Salehi v.

INS, 47 F.3d 390 (10th Cir. 1995), is that Chevron calls for deference, the BIA’s

stance on the “danger to the community” element of § 1231 has been the concern

of at least one other circuit. The Second Circuit, in interpreting the meaning of

that statute, stated that they are “troubled by the BIA’s failure to give separate

consideration to whether [petitioner] is a ‘danger to the community.’” Ahmetovic

v. I.N.S., 62 F.3d 48, 52 (2d Cir. 1995).

Although our decision in Al-Salehi has been interpreted by other circuits to

stand for the blanket proposition that satisfaction of the “particularly serious”

offense element of § 1231 is sufficient to deny withholding, see, e.g., Ahmetovic,

62 F.3d at 54; Alaka, 456 F.3d at 95, our Al-Salehi decision contains some

important qualifying language. Specifically, we stated in Al-Salehi that the

BIA’s interpretation “in this proceeding” is entitled to deference, and “Petitioner,

7
who concedes his prior conviction of an aggravated felony, is . . . disqualified;”

and “in light of th[e] uncertainty [about the meaning of the (Refugee)

Convention], we conclude that the BIA’s interpretation of [§ 1253(h)(2)] does

not violate Article 33(2).” See Al-Salehi, 47 F.3d at 395, 396 (internal quotation

marks omitted).

It is important that the facts in Al-Salehi were different: Mr. Al-Salehi was

convicted of an aggravated felony. Further, both the Seventh Circuit’s decision

in Garcia v. INS, 7 F.3d 1320 (7th Cir. 1993), upon which Al-Salehi relied, and

In Matter of Carballe, 19 I. & N. Dec. 357, relied upon by the Seventh Circuit,

involved aggravated felons. There is also a meritorious argument that our rule

governing aggravated felons might not apply to non-aggravated felons, such as

N-A-M, or might not apply with the same force. Indeed, another provision in the

Immigration and Nationality Act (“INA”) indicates that the two substantively

distinct categories of offenses—aggravated felonies and non-aggravated

felonies—receive disparate treatment under the INA. See, e.g., Chong v. Dist.

Dir. INS, 264 F.3d 378, 385 (3d Cir. 2001) (“The INA bars aggravated felons

from entering the United States for ten years. 8 U.S.C. § 1182(a)(9)(A)(ii).

[However] a determination that the [] petitioner’s conviction did not constitute

an aggravated felony could allow the petitioner to reenter the United States.”).

Furthermore, I see some unnerving textual impediments to the BIA’s

construction. Notably, a statute must be ambiguous or unclear before Chevron

8
comes into play, see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837, 842-45 (1984), and the statutory language is arguably unambiguous.

One of the most basic interpretive canons counsels that “[a] statute should be

construed so that effect is given to all its provisions, so that no part will be

inoperative or superfluous, void or insignificant . . . .” Hibbs v. Winn, 542 U.S.

88, 101 (2004). To accept the BIA’s recent contention that the “danger to the

community” inquiry is subsumed within the “particularly serious” offense

inquiry seems to run afoul of the clear language of the statute. The statute

mentions both a “danger to the community” inquiry and a “particularly serious”

offense inquiry; ignoring one of those inquiries does not give full effect to the

meaning to the statute. And, then to take it one step further and to contend that

the “particularly serious” offense inquiry can be performed without reference to

Frentescu’s “danger to the community” element, as the BIA does, seems doubly

problematic. See N-A-M, 24 I. & N. Dec. at 342 (“On some occasions, we have

focused exclusively on the elements of the offense, i.e., the nature of the

crime.”).

For the reasons above, arguments made by the amicus, United Nations

High Commissioner for Refugees (UNHCR) (to whom our Supreme Court has

consistently turned for assistance in interpreting our obligations under the

Refugee Convention), are noteworthy. See, e.g., Negusie v. Holder, 129 S. Ct.

1159, 1175 (2009) (citing Office of the United Nations High Commissioner for

9
Refugees, Handbook on Procedures and Criteria for Determining Refugee Status

¶¶157, 162 (reedited Jan. 1992) in support of its analysis of the nonrefoulement

(the mandatory withholding of deportation) principle); Sale v. Haitian Ctrs.

Council, 509 U.S. 155, 182 (1993) (same); INS v. Cardoza-Fonseca, 480 U.S.

421, 438-39 (1987) (“In interpreting the Protocol . . . we are further guided by

the analysis set forth in the Office of the United Nations High Commissioner for

Refugees, Handbook on Procedures and Criteria for Determining Refugee Status

(Geneva, 1979).”).

As UNHCR notes, our Refugee Act, which implements the Refugee

Convention, and specifically, § 1231, embodies a Congressional commitment to

the international legal principle of nonrefoulement, as it appears in Refugee

Convention Article 33. See INS v. Stevic, 467 U.S. 407, 421 (1984) (discussing 8

U.S.C. § 1253(h), now codified at 8 U.S.C. § 1231(b)(3) (2006), and noting that

the statutory provision regarding withholding of deportation, as amended,

conformed to the language of Article 33); see also Ins v. Cardoza-Fonseca, 480

U.S. 421, 441 n.25 (1987) (stating that “[t]he 1980 Act made withholding of

deportation under [INA] § 243(h) mandatory in order to comply with Article

33.1”). And a wealth of persuasive authority reveals that under both the

Convention and the Refugee Act implementing the Convention, the “decisive

factor is not the seriousness or categorization of the crime that the refugee has

committed, but, rather, whether the refugee, in light of the crime and conviction,

10
poses a future danger to the community.” UNCHR Am. Br. at 22 (listing several

citations).

We can also benefit from reference to international law, as it reveals how

other tribunals have interpreted the exact same text. Although citing foreign law

is at times controversial, the broad consensus, even among opponents of its use

in constitutional law cases, supports its use when determining how other

signatories on a treaty interpret that treaty. As Justice Scalia wrote in dissent in

Olympic Airways v. Husain:

[The] decision stands out for its failure to give any serious
consideration to how the courts of our treaty partners have resolved the
legal issues before us. . . .

The Court’s new abstemiousness with regard to foreign fare is not
without consequence: Within the past year, appellate courts in both
England and Australia have rendered decisions squarely at odds with
today’s holding. Because the Court offers no convincing explanation
why these cases should not be followed, I respectfully dissent.

540 U.S. 644, 658 (2004) (Scalia, J., dissenting); see Air France v. Saks, 470

U.S. 392, 404 (1985) (“[W]e ‘find the opinions of our sister signatories to be

entitled to considerable weight.’” (quoting Benjamins v. British European

Airways, 572 F.2d 913, 919 (2d Cir. 1978))).

As pointed out by the Amicus brief from legal scholars, Deborah Anker,

Guy S. Goodwin-Gill, and James Hathaway, the interpretation of the

international convention by courts in Canada and the United Kingdom differs

from our analysis. In interpreting the underlying international convention, the

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Supreme Court of Canada noted that a government must “make the added

determination that the person poses a danger to the safety of the public or to the

security of the country . . . to justify refoulment.” Pushpanathan v. Minister of

Citizenship & Immigration, [1998] 1 S.C.R. 982, ¶ 12. Similarly, the United

Kingdom considers whether an alien is “convicted of a particularly serious crime

and is a danger to the community.” Immigration and Nationality Appeals

Directorate, Changes to Refugee Leave and Humanitarian Protection (2005)

(quoted in R v. Sec’y of State for Home Dep’t, [2006] EWHC 3513 (Eng. Q.B.

2006)). That other countries—especially, perhaps, these—have interpreted the

treaty to have a different meaning from the BIA, calls into question the

interpretation made by the BIA and reveals the need for clarification on the

correct meaning.

In conclusion, although the meaning of § 1231’s “particularly serious”

offense provision is not crystal clear, the BIA’s construction of the provision to

include non-aggravated felonies is reasonable. Furthermore, in light of our

decision in Al-Salehi, 47 F.3d at 390, we must affirm the BIA’s exclusion of a

“danger to the community” assessment from § 1231. Nevertheless, N-A-M and

amici raise noteworthy arguments that merit the separate discussion of this

concurrence and hopefully will draw further scrutiny to this matter.

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