C

Interim Decision #3180

MATTER OF C-
In Deportation Proceedings
A-27265741
Decided by Board May 28, 1992

(1) The analysis presented in Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), and
followed in Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990), among other cases,
for determining whether a conviction is for a "particularly serious crime" has been
superseded in part by Congress through amendment of section 243(h)(2) of the
Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1988), by section 515(a)(2)
Pub. L. No. 101-649, 104 Stat. 4978, 5053 (effective
of the Immigration Act of 1990,
Nov. 29, 1990).
(2) With respect to any application for withholding of deportation made on or after
November 29, 1990, where the conviction in question is for an aggravated felony
within the meaning of the Act, the conviction must be deemed to be for a particularly
serious crime without regard to the analysis set forth in Matter of Frentescu, supra.
Matter of U-.111-, 20 I&N Dec. 327 (BIA 1991), affd, 989 F.2d 1055 (9th Cir. 1993);
Matter of Gonzalez, 19 l&INT Dec. 682 (BIA 1988); Matter of Garcia-Garrocho, 19 I&N
Dec. 423 (BIA 1986), modified, Matter of Gonzalez, supra; Matter of Carballe, 191&N
Dec. 357 (BIA 1986), modified, Matter of Gonzalez, supra; and Matter of Frentescu,
supra, modified, Matter of Gonzalez, supra, modified.
CHARGE
Order: Act of 1952—Sec. 241 (aX4)[(A)1 [8 U.S.C. § 1251(a)(4)[(A)]]—Crime involving
moral turpitude
Sec. 241 (aX4)(B) [8 U.S.C. § 1251(a)(4XB)]—Convicted of aggra-
vated felony
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE
Peter Costea, Esquire William K. Zimmer
Bigham & Nettles, P.C. General Attorney
600 Travis
3660 Texas Commerce Tower
Houston, Texas 77002

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated December 19, 1990, the immigration judge
found the respondent deportable under section 241(a)(4)[(A)] of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)[(A)] (1988),
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Inr erim Decision #3180

as an alien convicted of a crime involving moral turpitude, and under
section 241(a)(4)(B) of the Act as an alien convicted of an aggravated
fe ony.' The immigration judge further determined that, based on his
conviction for an aggravated felony, the respondent was ineligible to
apply for asylum and was barred from eligibility for withholding of
deportation. The immigration judge ordered the respondent deported
to Austria, with an alternate order of deportation to Romania. The
respondent has .appealed.2 The appeal will be dismissed. The respon-
dent's request for oral argument before this Board is denied. 8 C.F.R.
§ 3.1(e) (1992).
The respondent is a male native and citizen of Romania whose
stt tus was adjusted to that of a lawful permanent resident on
September 25, 1986. On September 19, 1989, the respondent was
convicted in the 182nd District Court of Harris County, Texas, of
murder committed on April 22, 1988. Based on the respondent's
admissions at the deportation hearing and the conviction records
submitted by the Immigration and Naturalization Service, the immi-
gration judge found the respondent deportable on the charges set forth
above. The respondent raises no challenge on appeal to the immigra-
tio n judge's findings of deportability.
At the hearing on October 17, 1990, the respondent requested and
Wi,S given an application for asylum. This application was not filed
prior to November 29, 1990, the effective date of the Immigration Act
of 1990, Pub. L. No. 101-649, 104 Stat. 4978. We agree with the
iii migration judge that, as an alien convicted of an aggravated felony,
the respondent was no longer eligible for asylum beginning November
29, 1990. Section 208(d) of the Act, 8 U.S.C. § 1158(d) (Supp. II
1990), which was added by section 515(a)(1) of the Immigration Act of
1990, 104 Stat. at 5053, provides that an alien who has been convicted
of an aggravated felony "may not apply for or be granted asylum."
T1 is bar applies to convictions entered before, on, or after November
29, 1990, and to applications for asylum made on or after that date.
See section 515(b)(1) of the Immigration Act of 1990, 104 Stat. at
5Q53, as corrected by section 306(a)(13) of the Miscellaneous and
I These sections of the Act have been revised and redesignated as sections
24 (a)(2)(A)(i) and (iii) of the Act, 8 U.S.C. §§ 1251(a)(2)(A)(i) and (iii) (Supp. 11 1990),
by section 602(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,
50"9-80, but that amendment does not apply to deportation proceedings for which
not ice has been provided to the alien before March 1, 1991. See section 602(d) of the
Immigration Act of 1990, 104 Sta. at 5082.
2 We have not considered the new evidence submitted by the respondent on appeal.
TILL =coal we Levicw uu appeal is the let:And haute the imatiguttiou judge. Mutier of
Haim, 19 I&N Dec. 641 (BIA 1988). The respondent has not filed a motion to reopen
bated on new evidence.

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Technical Immigration and Naturalization Amendments of 1991, Pub.
L. No. 102-232, 105 Stat. 1733, 1752 (enacted Dec. 12, 1991).
Furthermore, as an alien convicted of an aggravated felony, the
respondent is considered to have committed a "particularly serious
crime" for purposes of section 243(h)(2)(B) of the Act, 8 U.S.0
1253(h)(2)(B) (Supp. II 1990), and is therefore not eligible for
withholding of deportation. Section 243(hX2) of the Act, as amended
by section 515(a)(2) of the Immigration Act of 1990, 104 Stat. at 5053;
see also Matter ofK-, 20 I&N Dec. 418 (BIA 1991); Matter of El-M-, 20
I&N Dec. 327 (BIA 1991), affd, 989 F.2d 1085 (9th Cir. 1993).
Section 515(a)(2) of the Immigration Act of 1990 applies to convic-
tions entered before, on, or after November 29, 1990, and to
applications for withholding of deportation made on or after that date.
See section 515(b)(2) of the Immigration Act of 1990, 104 Stat. at
5053, as corrected by section 306(a)(13) of the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991, 105
Stat. at 1752:
The respondent contends that he was unable to file his asylum
application prior to November 29, 1990, because he was unable to
understand some of the questions, he was not represented by counsel
at that time, and no interpreter qualified to speak his native tongue
was present at his October 17, 1990, hearing. He therefore asserts that
his asylum application should be deemed constructively filed prior to
November 29, 1990. The respondent's assertions are without merit.
He did not request an asylum application until October 17, 1990, nor
would it be the responsibility of the court interpreter to assist him in
filing his application. There is no indication that the respondent was
denied his right to counsel in deportation proceedings. See sections
242(b)(2), 292 of the Act, 8 U.S.C. §§ 1252(b), 1362 (1988); 8 C.F.R.
§§ 3.15(b) (1992) (to be redesignated as 8 C.F.R. § 3.16(b), see 57 Fed.
Reg. 11,571 (Apr. 6, 1992)); 3.36(d) (1992) (to be redesignated as 8
C.F.R. § 3.38(d), see 57 Fed. Reg. 11,571 (Apr. 6, 1992)); 242.2(c)(2);
242.2(d) (as revised at 57 Fed. Reg. 11,573 (Apr. 6, 1992)); 242.10;
242.16(a), (d); 292 (1992). Moreover, the respondent has not shown
how he would ultimately benefit even if his application were to be
deemed constructively filed on October 17, 1990. Under the regula-
tions effective for asylum applications filed after October 1, 1990, the
respondent, as an alien convicted of a particularly serious crime, is
ineligible for asylum or withholding of deportation. 8 C.F.R.
§§ 208.14(c)(1), 208.16(c)(2)(ii) (1992); cf. Matter of , 20 I&N Dec.
-

427 (BIA 1991).
The respondent contends that the "statutory equation" under
section 243(h)(2) of the Act, as amended, between "aggravated felony"
and "particularly serious crime" does not apply to this case because his

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Interim Decision #3180

conviction occurred before November 29, 1990. However, the techni-
cal amendments to the Immigration Act of 1990 made clear that the
amendment of section 243(h)(2) by section 515(a)(2) of the Immigra-
tion Act of 1990 applies to convictions entered before, on, or after
November 29, 1990, and to applications for withholding of deporta-
tion made on or after that date. See section 306(a)(13) of the
Miscellaneous and Technical Immigration and Naturalization Amend-
ments of 1991, 105 Stat. at 1752. The respondent's argument that
application of this provision to his case contravenes the ex post facto
clause of the Constitution is also without merit. Deportation proceed-
ings are civil proceedings, which are not considered punishment or a
criminal process and, therefore, the ex post facto clause is not
implicated. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Matter of
Valdovinos, 18 I&N Dec. 343 (BIA. 1982). Moreover, it is settled that
the immigration judge and this Board lack jurisdiction to rule upon the
constitutionality of the Act and the regulations. See section 103 of the
Act, 8 U.S.C. § 1103 (1988); 8 C.F.R. § 3.1 (1992); Bagues-Valles v.
INS, 779 F.2d 483 (9th Cir. 1985); Dastmalchi v. INS, 660 F.2d 880
(3d Cir. 1981); Matter of Valdovinos, supra; Matter of Cortez, 16 I&N
Dec. 289 (BIA 1977).
The respondent contends that the immigration judge should have
made an inquiry into whether the respondent pleaded guilty to murder
voluntarily and with the proper advice and assistance of counsel. The
immigration judge and this Board cannot entertain a collateral attack
on a judgment of conviction unless that judgment is void on its face
and cannot go behind the judicial record to determine the guilt or
innocence of the alien. Matter of Fortis, 14 I&N Dec. 576, 577 (BIA
1974); see also Trench v. INS, 783 F.2d 181 (10th Cir.), cert. denied,
479 U.S. 961 (1986); Avila Murrieta v. .INS, 762 F.2d 733 (9th Cir.
-

1985); Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981) (per curiam);
Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. 1980) (foreign convic-
tion); Longoria Castenada v. INS, 548 F.2d 233 (8th Cir.), cert. denied,
-

434 U.S. 853 (1977); Aguilera Enriquez v. INS, 516 F.2d 565 (6th Cir.
-

1975), cert. denied, 423 U.S 1050 (1976); Matter of Danesh, 19 I&N
Dec. 669 (BIA 1988); Matter of Khalik, 17 I&N Dec. 518 (BIA 1980).
In addition, a majority of the circuit courts, including the United
States Court of Appeals for the Fifth Circuit in which this case arises,
have held that the fact that a defendant is not advised of the collateral
immigration consequences of his plea does not amount to a denial of
due process which would vitiate the plea. Santos v. Kolb, 880 F.2d 941
(7th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); United States v.
Nino, 878 F.2d 101 (3d Cir. 1989); United States v. Yearwood, 863
F.2d 6 (4th Cir. 1988); United States v. Quin, 836 F.2d 654 (1st Cir.
1988); United States v. Campbell, 778 F.2d 764 (11th Cir. 1985);

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United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985); Fruchtman v.
Kenton, 531 F.2d 946 (9th Cir.), cert. denied, 429 U.S. 895 (1976);
United States v. Santelises, 476 F2d 787 (2d Cir. 1973); United States
v. Sambro, 454 F.2d 918 (D.C. Cir. 1971) (per curiam); United States
v. Nagaro-Uarbin, 653 F. Supp. 586 (E.D. Mich.), afj'd, 831 F.2d 296
(6th Cir.. 1987); see also United States v. Cabrera-Quintero, 650 F.2d
942 (8th Cir. 1981).
The respondent further contends that the Board's decision in Matter
of supra, which held that under section 243(h)(2) of the Act, as
amended, an alien convicted of an "aggravated felony" is deemed to
have committed a "particularly serious crime" and therefore necessari-
ly constitutes a "danger to the community," is "exceedingly harsh,"
"legally defective," and "improper," citing Beltran-Zavala v. INS, 912
F.2d 1027 (9th Cir. 1990), and Matter of rentescu, 18 I&N Dec. 244
(BIA 1982), modified, Matter of Gonzalez, 19 I&N Dec. 682 (BIA
1988).
The respondent has raised no argument that persuades us to
reconsider our decision in Matter of K -, supra. If being barred from
withholding of deportation based on conviction of an aggravated
felony is an "exceedingly harsh" result, it is nonetheless the result
required by the language of Congress in amending section 243(h)(2) of
the Act. Matter of K-, supra; Matter of U-M-, supra. Furthermore, the
reasoning in Matter of Frentescu, supra, and in Beltran-Zavala v. INS,
supra, cited by the respondent, has been superseded by the amendment
of section 243(h)(2).
At the time the Board decided Frentescu in 1982, "particularly
serious crime" was a new term with no statutory guidance as to its
meaning. In Frentescu the Board did not set forth an exact definition
of "particularly serious crime" and concluded that while some crimes
on their face are or are not particularly serious, "the record in most
proceedings will have to be analyzed on a case by case basis," looking
- -

to the nature and circumstances of the alien's crime. Matter of
Frentescu, supra, at 246. The Court of Appeals for the Ninth Circuit in
Beltran-Zavala v. INS, supra, reapproved the formulation in Frentescu,
but remanded the case before it, finding that the Board had gone
beyond looking at the particular conviction of record and its circum-
stances to erecting a "class" of "per se" particularly serious crimes.
The court stated that section 243(h)(2)(B) of the Act did not erect
classes of crimes that are per se particularly serious, observing that if
Congress wanted to erect per se classifications of crimes precluding
immigration and nationality benefits, it knew how to do so. Beltran-
Zavala v. INS, supra, at 1032.
With section 515(a)(2) of the Immigration Act of 1990, Congress
both provided guidance lacking at the time of Frentescu and erected a

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class of per se particularly serious crimes, that is, aggravated felonies,
as the court in Beltran-Zavala said it knew how to do. That section
amended section 243(h)(2) of the Act to provide that "an alien who
has been convicted of an aggravated felony shall be considered to have
committed a particularly serious crime." Section 515(a)(2) of the
Immigration Act of 1990, 104 Stat. at 5053. This amendment applies
to convictions entered before, on, or after November 29, 1990, and to
applications for withholding of deportation made on or after that date.
See section 515(b)(2) of the Immigration Act of 1990, 104 Stat. at
5053, as corrected by section 306(a)(13) of the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991, 105
Stat. at 1752. Thus, in any request for withholding of deportation
made on or after November 29, 1990, if the conviction in question
qualifies as an aggravated felony, it qualifies as a particularly serious
crime for purposes of section 243(h)(2)(B) of the Act without regard to
the case-by-case analysis set forth in Matter of Frentescu, supra. See
Matter of K-, supra, at 423-24; Matter of U-M-, supra, at 331-32 (citing
Beltran Zavala V. INS, .supra). Indeed, pursuant to the plain language
-

of the amendment to section 243(h)(2), this Board cannot find that a
conviction which qualifies as an aggravated felony is not for a
particularly serious crime in any request for withholding of deporta-
tion made on or after November 29, 1990.
In addition, the definition of "aggravated felony" at section
101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. II 1990), which,
as we have discussed before, is itself made up of certain classes or
categories of crimes, see, e.g., Matter of Meza, 20 I&N Dec. 257 (BIA
1991), covers the vast majority of crimes we would have previously
determined to be particularly serious crimes. Thus, while "most" of
the crimes in cases 10 years ago when Frentescu was decided had to be
analyzed on a case-by-case basis to determine if they were "particular-
ly serious crimes," the opposite is now true. By far, most of the
convictions in cases received by the Board today in 1992, which
involve the types of crimes we have in the past considered to be
particularly serious crimes, qualify as convictions for aggravated
felonies.
In sum, the analysis presented in Matter of Frentescu, and followed
and expanded in several precedent decisions since then, for determin-
ing whether a conviction is for a "particularly serious crime" has been
superseded by Congress through amendment of section 243(h)(2) of
the Act by section 515(a)(2) of the Immigration Act of 1990. With
respect to any application for withholding of deportation made on or
after November 29, 1990, where the conviction in question is for an
aggravated felony within the meaning of the Act, the conviction must
be deemed to be for a particularly serious crime without regard to the

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analysis set forth in Matter of Frentescu, supra.; An alien, having been
convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of the United States and is
ineligible for withholding of deportation. Section 243(h)(2)(B) of the
Act; Matter of K-, supra. To the extent they are inconsistent with the
foregoing decision, Matter of Frentescu and the following cases are
hereby modified: Matter of U-M-, supra; Matter of Gonzalez, supra;
Matter of Garcia.Garrocho, 19 I&N Dec. 423 (81A 1986), modified,
Matter of Gonzalez, supra; Matter of Carballe, 19 I&N Dec. 357 (BIA
1986), modified, Matter of Gonzalez, supra.
ORDER: The appeal is dismissed.

;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, see Matter of B-, supra, at 430-31; the withholding request precedes
November 29, 1990; or, perhaps, where the crime falls outside the definition of
aggravated felonry but should, under the analysis of Frentescu, be deemed a particularly
serious crime. Even under certain of these cases, however, and including cases
construing the term "particularly serious crime" for purposes of 8 C.F.R.
§§ 208.14(c)(1) and 208.16(0(2)(1i) (1992) (regarding asylum and withholding applica-
tions filed on or after October 1, 1990), the 1990 amendment to section 243(h)(2) of the
Act may appropriately provide guidance. Cf. Mailer of B-, supra, at 430-31; Matter of U-
M., supra, at 332.

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