Interim Decision #3007 

MATTER OF CARBALLE 

In Exclusion Proceedings 

A-22788430 

Decided by Board February 13, 1986 

(1) An alien is barred from the relief of withholding of deportation if he, having 

been convicted by a final judgment of a particularly serious crime, constitutes a 

danger to the community of the United States. 

(2) Once a finding is made that an alien has been finally convicted of a particularly 

serious crime, it necessarily follows that the alien is a danger to the community of 

the United States. 

(3) Because the proper focus is on the serious nature of the crime and not on the 

likelihood of future serious misconduct on the part of the alien, the contention 

that the statute requires two separate and distinct findings as to "seriousness of 

the crime" and "danger to the community" is rejected. 

(4) If an applicant is statutorily ineligible for withholding of deportation because he 

is a danger to the community of the United States, having been finally convicted 

of an inherently particularly serious crime, eg, armed robbery, background evidence including the circumstances of the crime is not relevant to the determination of statutory eligibility. 

EXCLUDABLE: Act of 1952—Sec. 212(aX9) [S U.S.C. §1182(aX9)]--erime involving 

moral turpitude 

Sec. 212(aX20) [8 U.S.C. § 1182(aX20)]—No valid immigrant visa 

ON BEHAI/F OF APPLICANT: ON BEHALF OF SERVICE: 

Robert L. Boyer, Esquire David Dixon 

523 West Flagler Street Appellate Counsel 

Miami, Florida 33130 

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

In a decision dated February 6, 1985, the immigration judge 

found the applicant excludable on the grounds set forth above, 

denied his applications for asylum and withholding of deportation 

under sections 208(a) and 243(h) of the Immigration and Nationality Act, S U.S.C. g5 1158(a) and 1253(h) (1982), and ordered that he 

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Interim Decision #3007 

be excluded and deported from the United States.' The applicant 

appeals the denial of asylum and withholding of deportation. The 

appeal will be dismissed. 

The applicant is a 22-year-old native and citizen of Cuba. After 

departing Cuba and arriving at Key West, Florida, in April 1980 as 

part of the Mariel boatlift, the applicant was paroled into the 

United States. 

On February 18, 1983, in the Circuit Court for Dade County, 

Florida, the applicant was convicted, on his plea of guilty, of (1) 

robbery with a firearm, to wit, a pistol (two counts), (2) attempted 

robbery with a firearm, to wit, a pistol (two counts), (3) grand theft 

second degree, and (4) accessory after the fact, in violation of sections 812.13, 812.014, and 777.03 of the Florida Statutes. The applicant was sentenced to terms of 15 years each on the robbery and 

attempted robbery counts with the sentences to run concurrently. 

He also was sentenced to terms of 5 years each on the grand theft 

and accessory counts with the sentences to run concurrently with 

the robbery counts. He was incarcerated at the time of the exclusion hearing. 

At his hearing, the applicant, through counsel, conceded excludability under section 212(aX20) of the Act, 8 U.S.C. § 1182(a)(20) 

(1982), and did not contest excludability under section 212(a)(9) of 

the Act. He requested asylum and withholding of deportation. The 

applicant submitted that he would be imprisoned and singled out 

for disparate treatment by Cuban authorities because he was one 

of the first Cubans to enter the Peruvian Embassy in Havana in 

1980. The record includes a "Safe Conduct Definitive," issued by 

the Cuban Government, which essentially authorized the applicant's safe conduct from the Peruvian Embassy to any country that 

offered him a visa. Also, the applicant stated that he would be persecuted in Cuba because of his robbery convictions in the United 

States. 

The immigration judge denied the applicant's applications for 

asylum and withholding of deportation without reaching the merits 

of the claim or submitting any documents to the State Department 

for an advisory opinion. See 8 C.F.R. § 208.10(b) (1985). In view of 

the nature of the offenses that had been committed, the immigra1 In his decision, the immigration judge refers to the applicant as Lazarro Carabelle. Inasmuch as there is no issue regarding the applicant's identity, we find that 

the reference is an inadvertent error and that the decision does, in fact, relate to 

the applicant. See Corona-Palomera v. INS. 661 F.2d S14 (9th Cir. 1981); United 

States v. Rebon-Delgado, 467 F.2d 11 (9th Cir. 1972); IraZeros v. INS, 387 F.2d 921 

(7th Cir. 1967); Vlisidis v. Holland, 245 F.2d 812 (3d Cu. 1957); Matter of RamirezSanchez, 17 MN Dec. 503 (BIA 1980). 

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Interim Decision #3007 

tion judge found that the applicant was ineligible for , relief under 

section 243(h) of the Act as one who had been convicted of a particularly serious crime and constituted a danger to the community 

of the United States. For the same reason, the immigration judge 

denied asylum. 

In pertinent part, section 243(hX2XB) of the Act provides that 

withholding of deportation "shall not apply to any alien if the Attorney General determines that the alien, having been convicted by 

a final judgment of a particularly serious crime, constitutes a 

danger to the community of the United States." 

On appeal, the applicant contends that the immigration judge 

erred in his interpretation of section 243(hX2XB) of the Act. 

Through counsel, he submits that section 243(hX2)(B) requires two 

separate factual findings. First, it must be determined that an applicant has committed a particularly serious crime. Then, there 

must be a second, distinct finding that the applicant constitutes a 

danger to the community of the United States. The applicant submits that "the use of the present tense verb 'constitutes' in section 

243(h)(2)(B) indicates that this second question should be appraised 

in light of present circumstances and the record should therefore 

be carefully scrutinized for evidence of rehabilitation or other factors indicating that [the] applicant may not now be a danger to the 

community." 

The Service, however, argues that both the language of section 

248(hX2)(B) of the Act and its legislative history make clear that 

only one test is required. It is submitted that section 243(hX2XB) 

"establishes a cause and effect relationship between the two 

clauses." If Congress had "intended to establish two separate criteria," the Service argues, "it could have easily done so by its use of 

the conjunction 'and.' Instead, the grammatical structure shows 

that a conviction for a particularly serious crime is the sole factor 

which Congress has made determinative of whether the alien constitutes a danger to the community." 

The Service contends that the legislative history of this statutory 

provision supports the contention that only one finding is required. 

The present provisions of section 243(h) of the Act were enacted as 

part of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. 

The House Judiciary Committee Report, in reviewing the provisions of section 243(h), noted that an exception to eligibility for 

such relief included "aliens . . . who have been convicted of particularly serious crimes which make them a danger to the community of the United States." H.R. Rep. No. 608, 96th Cong., 1st Seas. 

17 (1979) (emphasis added). The Service submits that this language 

reflects the congressional understanding of how section 243(hX2)(8) 

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Interim Decision #3007 

is properly read. 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 an alien 

will become a recidivist. 

We find that section 243(h)(2)(B) of the Act does not require that 

two separate and distinct factual findings be made in order to 

render an alien ineligible for withholding of deportation. It must be 

determined that an applicant for relief constitutes a danger to the 

community of the United States to come within the purview of section 243(h)(2)(B). However, the statute provides the key for determining whether an alien constitutes such a danger. That is, those 

aliens who have been finally convicted of particularly serious 

crimes are presumptively dangers to this country's community. The 

clauses of section 243(h)(2)(B), nevertheless, are inextricably related. We have noted that the phrase "particularly serious crime" is 

not defined in the statute. Matter of Frentescu, 18 I&N Dec. 244, 

246 (BIA 1982). In determining whether a conviction is for such a 

crime, the essential key is whether the nature of the crime is one 

which indicates that the alien poses a danger to the community. As 

we noted in Matter of Frentescu, supra, there are some crimes that 

are inherently "particularly serious" while others clearly are not. 

There will be eases, however, where the seriousness of a crime will 

have to be judged by considering the nature of the conviction, the 

circmnstances and underlying facts of the conviction, the sentence 

imposed, and whether the type and circumstances of the crime indicate the alien will be a danger to the community. The focus here 

is on the crime that was committed. If it is determined that the 

crime was a "particularly serious" one, the question of whether the 

alien is a danger to the community of the United States is answered in the affirmative. We do not find that there is a statutory 

requirement for a separate determination of dangerousness focusing on the likelihood of future serious misconduct on the part of 

the alien. See Crespo-Gomez v. Richard, 780 F.2d 932 (11th Cir. 

1986); Zardui-Quintana v. Richard, 768 F.2d 1213 (11th Cir. 1985) 

(Vance, J., concurring). 

Has this applicant been convicted of a particularly serious crime? 

In addition to two other offenses, the applicant was convicted in 

the State of Florida, on February 18, 1983, of two counts of armed 

robbery and two counts of attempted armed robbery. The offenses 

involved the use of a firearm. They were felonies, as well as offenses against individuals. On their face, they were dangerous. 

Robbery is a grave, serious, aggravated, infamous, and heinous 

crime. See Matter of Rodriguez-Palma, 17 I&N Dec. 465 03IA 1980). 

We have previously found a California conviction for armed rob860 
Interim Decision #3007 

bery to be a crime rendering an alien statutorily ineligible for 

withholding of deportation. See Matter of Rodriguez-Coto, 19 I&N 

Dec. 208 (BIA 1985). We have little difficulty concluding that the 

applicant herein has been convicted of a particularly serious crime 

and, therefore, constitutes a danger to the community of the 

United States within tie meaning of section 243(hX2)(B) of the Act. 

Moreover, the same reasons that lead us to conclude this applicant 

has been finally convicted of such a crime satisfy us that his request for asylum properly warrants denial in the exercise of discretion. 

The applicant complains that the immigration judge erred by refusing to admit background information, including the circumstances of the armed robberies, into evidence. We conclude that 

there has been no error on the part of the immigration judge as 

the crimes at issue in this case are inherently "particularly serious." 

In Matter of Saban, 18 I&N Dec. 70 (BIA 1981), we stated that, 

pursuant to 8 C.F.R. § 208.10(b) (1981), when an applicant files an 

application for asylum after he has been placed in exclusion proceedings, the immigration judge must adjourn the hearing for the 

purpose of requesting an advisory opinion from the Bureau of 

Human Rights and Humanitarian Affairs, Department of State. 

See 8 C.F.R. § 236.3(a) (1985). 

This case is distinguishable from Matter of Saban, supra. In 

Saban, it did not appear that the alien was statutorily precluded 

from withholding of deportation; nor was it evident that asylum 

would be denied in the exercise of discretion. 

In these proceedings, on the other hand, it is clear that the applicant is statutorily ineligible for withholding of deportation. Even if 

we assume that the applicant established the merits of his claim, 

no purpose would be served by obtaining an advisory opinion if the 

ultimate result, as here, is to statutorily preclude the applicant 

from relief. Similarly, the merits of the applicant's asylum claim 

need not be addressed. See INS v. Rios-Pineda, 471 U.S. 444 (1985); 

INS v. Bagamasbad, 429 U.S. 24 (1976). See generally Matter of 

Reyes, 18 I&N Dec. 249 (BIA 1982). It is evident, based on the applicant's convictions for armed robbery and attempted armed robbery, 

that asylum would be denied as a matter of discretion. Therefore, 

no purpose is served by obtaining an advisory opinion when, notwithstanding a favorable recommendation, relief is denied on discretionary grounds. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed.