Interim Decision #2906 

MATTER OF FRENTESCU 

In Exclusion Proceedings 

A-23364219 

Decided by Board June 23, 1982 

(1) An alien who has been convicted of a crime involving moral turpitude is not statutorily 

ineligible for asylum and withholding of deportation. 

(2) Withholding of deportation and asylum are not available to an alien who, having been 

convicted by afinal judgment of a "particularly serious crime," constitutes a danger to 

the community of the United States. 

(0) A 'pox ticularly serious crime" under section 243(h)(2)(B) of the Immigration and 

Nationality Act, 8 U.S.C. 1253(h)(2)(B), is not the equivalent of a "serious nonpolitical 

crime" under section 243(h)(2)(C) of the Aet, and is, in fact, more serious than a 

"serious nonpolitical crime." 

(4) A determination of whether a crime is a "pal ticultuiy serious crime" will depend upon 

the specific facts in each case and, in judging the seriousness of a crime, the Board of 

Immigration Appeals will consider 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. 

EXCLUDABLE: Act of 1952—Sec. 212(a)(9) [8 U.S.C. 1182(a)(9)] — Convicted of a crime 

involving moral turpitude 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Juan M. Soliz, Esquire Samuel Der-Yeghiayan 

1661 S. Blue Island Avenue General Attorney 

Chicago, Illinois 60608 

By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

In an oral decision on June 9, 1981, the immigration judge found the 

applicant excludable under section 212(a)(9) Of the Immigration and 

Nationality Act, 8 U.S.C. 1182(a)(9), as an alien who had been convicted 

of a crime involving moral turpitude, denied his applications for asylum . 

and withholding of deportation, and ordered that he be excluded and 

deported from the United States. The applicant has appealed from the 

denial of asylum and withholding of deportation. The record will be 

remanded_ 

The applicant, a 27-year-old single male alien, is a native and citizen of 

Romania. He was indefinitely paroled into the United States on April 9, 

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1980, pursuant to section 212(d)(5) of the Act. On Novewber 20, 1980, 

he was convicted in the Circuit Court of Cook County, Illinois, of 

burglary, in violation of Chapter 38, section 19-1 of the Illinois Revised 

Statutes.' He was sentenced to time served (3 months) and. was placed 

on probation for one year. 

At his hearing, the applicant, through couhsel wadmitted that he had 

been convicted of the crime of burglary in Illinois. Burglary with intent 

to commit theft is a crime involving moral turpitude. See Matter of De 

La thus, 18 UN Dee. 140 (BIA 1981); Matter of Leyva, 16 I&N Dec. 

118 (BIA 1977); Matter of Scarpulla, 15 I&N Dec. 139 (BIA 1974). 

Thus, the applicant was properly found ex cludable under sectiori 212(a)(9) 

of the Act. 

Because the applicant submitted an application for asylum at the 

initial hearing, the hearing was adjourned in order to obtain the Department of State's advisory opinion. This opinion, in pertinent part, advises 

as follows: 

In uul view, the likelihood of perspentinn upon return to Romania was established when 

Mr. Frentescu was granted refugee status and paroled into the United States in 1980. 

Since that time, conditions have not changed in Romania and the forcible return of Mr. 

Frentescu to that country would most likely entail serious consequences, such as 

imprisonment, for him. 

The immigration judge considered the Department of State's letter 

but found that the applicant was ineligible for asylum because he had 

been convicted of burglary, a serious crime involving- moral turpitude. 

The immigration judge added that he would deny asylum, as a matter of 

discretion, because the applicant had committed a crime involving moral 

turpitude while in the country that gave him refuge. 

The only issue on appeal is whether the immigration judge properly 

denied the applicant's request for asylum and withholding of deportation. 

The applicant contends that his conviction for burglary does not bar him 

from eligibility for asylum inasmuch as burglary is not a "particularly 

serious crime" and, even if it is, he is not a danger to the community. 

Withholding of deportation as well as asylum is not available to an 

alien who, having been convicted by a final judgment of a "particularly 

serious crime, constitutes a danger to the community of the United 

States." Section 243(h)(2)(B) of the Act; 8 C.F.R. 208.8(f)(iv). 

In order to determine whether the applicant in this proceeding is 

eligible for relief, we first must ascertain the meaning of "particularly 

serious crime" as used in the Immigration and Nationality Act. Although 

the specific language chosen by Congress reflects that a "particularly 

serious crime" is more serious than a "serious nonpolitical crime," neiAs relevant, this section provides that a person commits burglary when without author-

' ity he knowingly enters or without authority remains within a building, or any part 

thereof, with intent to commit therein a felony or theft. 

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Interim Decision #2906 

ther the Act nor the pertinent legislative history,' the 1967 Protocol 

Relating to the Status of Refugees, 3or the Handbook on Procedures 

and Criteria for Determining Refugee Status (Geneva, 1979) specifically 

defines a "particularly serious crime." In fact, the only definition of 

crime, found in the Handbook, is the definition of a "serious nonpolitical 

crime," which is as follows: 

What constitutes a "serious" non-political crime for the purposes of this exclusion clause 

is difficult to define, especially since the term "crime" has different connotations in 

different legal systems. In some countries the word "crime" denotes only offences of a 

serious character. In other countries it may comprise anything from petty larceny to 

murder. In the present context, however, a "serious" crime must be a capital crime or a 

very grave punishable act. Minor offences punishable by moderate sentences are not 

grounds for exclusion under Article 1 F (IV' even if technically referred to as "crimes" in 

the penal law of the country concerned.' 

A refugee committing a serious crime in the country of refuge is subject to due process 

of law in that country. In extreme cases, Article 33 paragraph 2 of the Convention 

permits a refugee's expulsion or return to his former home country if having been 

convicted by a final judgement of a "particularly serious" common crime, he constitutes 

a danger to the community of his country of refuge." 

The concept of a "particularly serious crime" is one that is of first 

impression before this Board. No definition or interpretation of a 

"particularly serious crime" is contained in the Act, the Protocol, or the 

Handbook. The term is not analogous to any of the crimes specified in 

the Act.?We note that when Congress classified crimes within sections 

212 and 242 of the Act, no reference was made to a "particularly serious 

See H.R. Rep. No. 96-781, 96th Cong., 2d Sess. 20, reprinted in - [1980] U.S. Code 

Cong. & Ad. News 160, 161. 

319 U.S.T. 6223 (Part 5 196$), T.I.A.S. No. 6577, 606 U.N.T.S. 267. 

• 4 Reference is made to Article 1 F (h) of the 1951 Convention Relating to the Status of 

Refugees, 189 U.N.T.S. 137. Under this provision, status as a refugee is not applicable to 

any person with respect to whom there are serious reasons for considering that he has 

committed a serious nonpolitical crime outside the country of refuge prior to his admission 

to that country as a refugee. 

Paragraph 155. 

Paragraph 154. 

We disagree with the immigration judge's conclusion that the applicant is statutorily 

barreddrom withholding of deportation and asylum because he had been convicted in the 

united States of a crime involving moral turpitude. we do not believe Congress intended 

for section 243(h)(2)(B) of the Act or for 8 C.F.R. 208.8(f)(iv) to be so construed. Neither 

section 243(h)(2)(B) nor 8 C.F.R. 208.8(f)(iv)•specifically prohibits an alien who has been 

convicted of a crime involving moral turpitude from obtaining relief. Further, no crossreference has been made to the section of the Act which excludes an alien who has been 

convicted of a crime involving moral turpitude. See section 212(a)(9) of the Act; cf. section 

241(a)(4) of the' Act (deportability). MoreoYer, the immigration judge apparently incorporated the language of section 243(h)(2)(C) and 8 C.F.R. 208.8(f)(v) (whereby an alien is not 

eligible for withholding of deportation or asylum if there are serious reasons for considering that he has committed a serious nonpolitical crime outside the United States prior to 

his arrival) into section 243(h)(2)(13) of the Act. See generally Matter of Ballester-Garcia, 

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crime." No administrative history or case law has been presented before 

, this Board defining or otherwise interpreting "particularly serious crime." 

Thus, we cannot set forth an exact definition of a "particularly serious 

crime" at this time. Howeyer, there are certain attributes of this concept which can be characterized in general terms. At the outset, it 

should be clear that a "particularly serious crime" is not the equivalent 

of a "serinns nonpolitical crime." Further, a "particularly serious crime" 

is more serious than a "serious nonpolitical crime," although many crimes 

may be classified both as "particularly serious crimes" and as "serious 

nonpolitie al crimes." While there are crimes which, on their face, are 

"particularly serious crimes" or clearly are not "particularly serious 

crimes," the record in most proceedings will have to be analyzed on a 

case-by-case basis. In judging the seriousness of a crime, we look to 

such factors as the nature of the conviction, the circumstances and 

underlyirkg 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. Crimes against 

persons axe more likely to be categorized as "particularly serious crimes." 

Nevertheless, we recognize that there may be instances where crimes 

(or a crime) against property will be considered as such crimes. 

We find that this applicant is not statutorily ineligible for asylum or 

withholding of deportation as he is not an alien whose conviction comes 

within the provisions of section 243(h)(2)(B) of the Act or within the 

provisions of 8 C.F.R. 208.8(f)(iv). On the record before us, we do not 

find that the applicant has been convicted of a "particularly serious 

crime." We do not condone his crime, in essence, burglary with intent to 

commit theft. However, considering the totality of the circumstances 

before us concerning this crime, we do not find it to be of such a particularly serious nature as to preclude relief. The crime was an offense 

against property, rather than against a person. Although the applicant 

did enter a dwelling; there is no indication that the dwelling was occupied or that the applicant was armed; nor is there any indication of an 

aggravating circumstance. Further, the applicant received a suspended 

sentence, after spending a relatively short period of time in prison (3 

months).- Such sentence, as viewed by the state circuit court judge, 

reflects upon the seriousness of the applicant's danger to the community. 

• In view of our finding, we believe that the record should be returned 

to the immigration judge for a determination of whether the applicant 

17 I&N Dec. 592 (BIA 1980); Matter of Rodriquez-Palma, 17 I&N Dec. 465 (MA 1980). 

Ile found that the applicant had been eonvief pri of a "serious crime" rather than a 

"particularly serious crime" as required by section 243(h)(2)(B) of the Act and by 8 C.F.R. 

208.8(t)(iv). 

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Interim Decision #2906 . 

has established a well-founded fear of persecution. *Accordingly, the 

record will be remanded. 

ORDER The record is remanded to the immigration judge for 

further proceedings consistent ""- foregoing opinion and the entry 

of a new decision., 

FURTHER ORDER: Should a decision on remand be adverse to 

the applicant, an appropriate order shall be entered and the record shall 

be certified to us for review. 

2 We are aware that the immigration judge denied asylum as a mater of disclaim'. - 

However, under the facts before_ us, we believe that it was inappropriate to deny discretionary relief.