Interim Decision 4t 3071 

MATTER OF GONZALEZ 

In Exclusion Proceedings 

A-23225580 

Decided by Board July 97, 1988 

(1) An applicant in exclusion proceedings who has been convicted in a state court of 

possession of heroin with intent to deliver is statutorily ineligible for the relief of 

withholding of exclusion and deportation pursuant to section 243(hX2) of the Immigration and Nationality Act, 8 U.S.C. § 1253(hX2) (1982), by virtue of having 

been convicted of a particularly serious crime. 

(2) The Board of Immigration Appeals and immigration judges are not bound by the 

provisions of 8 C.F.R. § 208.8(f)(1)(iv) (1988), which precludes district directors of 

the Immigration and Naturalization Service from granting asylum to an alien 

who, having been convicted by a fund judgamut of a particularly coriouc crime, 

constitutes a danger to the community of the United States. 

(3) While the Board and immigration judges are not precluded from granting the 

relief of asylum to an alien who is barred from relief under section 243(h)(2) of the 

Act as one who has been convicted of a particularly serious crime, we have, as a 

matter of practice, considered such a bar to be a controlling factor in determining 

whether an alien warrants a grant of asylum in the exercise of discretion. 

(4) The Board now withdraws from the practice of pretermitting asylum applications 

when the statutory bar is applicable under section 243(hX2) of the Act and thus 

requires a full evidentiary hearing on the merits of the claim in order to determine if asylum should be granted in the exercise of discretion. Matter of GarciaGarrocho, 19 I&N Dec. 429 (BM. 1986); Matter of Corballe, 19 I&N Dec. 357 (BIA 

1986); Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985); Matter of Salim, 18 

I&N Dec. 311 (BIA 1982); Matter of Frenteseu, 18 I&N Dec. 244 (BIA 1982); Matter 

of Doural 18 I&N Dec. 37 (BIA 1981); Matter of Ballester-Garcia, 17 I&N Dec. 592 

(BIA 1980); and Matter (...1 Roth igue,e -Palma, 17 I&N Dec. 465 (BIA 1990), modified. 

EXCLUDABLE: Act of 1952—Sec. 212(aX20) [8 U.S.C. § 1182(aX20)j—No valid immigrant visa 

Sec. 212(aX23) [8 U.S.C. § 1182(aX23)j—Convicted of 

narcotics violation 

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Interim Decision #3071 

ON BEHALF OF APPLICANT: 

David Rubman, Esquire 

Legal Services Center for Immigrants 

Legal Assistance Foundation of Chicago 

1661 South Blue Island Avenue 

Chicago, Illinois 60608 

ON BEHALF OF SERVICE: 

Kathleen M. Gaber 

General Attorney 

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

Opinion: Heilman, Board Member. 

In a decision dated July 15, 1986, an immigration judge found 

the applicant excludable under sections 212(a)(20) and (23) of the 

Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(20) and (23) 

(1982), declined to consider his request for asylum under section 

208(a) of the Act, 8 U.S.C. § 1158(a) (1982), and ordered him excluded. and deported from the United States. The applicant has appealed. The appeal will be sustained and the record remanded. The 

request for oral argument before the Board is denied. 

The applicant is a 41-year-old native and citizen of Cuba who arrived at Key West, Florida, on June 20, 1980, and was subsequently 

paroled into the United States. We are satisfied from a review of 

the record that the applicant was properly found. excludable. At an 

exclusion hearing begun on June 24, 1986, and completed on July 

15, 1986, the applicant, who was represented by counsel, conceded 

his excludability under sections 212(a)(20) and (23) of the Act and 

does not now challenge those findings on appeal. Moreover, the 

record contains certified true copies of conviction records pertaining to the applicant which reflect that he was twice convicted on 

pleas of guilty in the State of Illinois in December 1985, of possession of a controlled substance, to wit: heroin, with intent to deliver 

and was sentenced to prison for a period of 8 years. 

The applicant does not contest the immigration judge's findings 

that his 1985 convictions for trafficking in heroin were for "particularly serious crimes" and that he was statutorily ineligible for 

withholding of exclusion and deportation on the basis of those convictions. His only claim on appeal is that the immigration judge 

improperly pretermitted discretionary consideration of his request 

for asylum, denying him the opportunity to file a Request for 

Asylum (Form 1-589) and to introduce evidence in support of a favorable exercise of discretion with regard to the requested relief. 

We conclude, as did the immigration judge, that the applicant is 

statutorily ineligible for withholding of exclusion and deportation 

based on his convictions for trafficking in heroin. We are satisfied 

that his convictions were for "particularly serious crimes," repro- 
Interim Decision #3071 

senting criminal behavior which "constitutes a danger to the community of the United States." See section 243(h)(2)(B) of the Act, 8 

U.S.C. § 1253(h)(2)(B) (1982); Matter of Carbolic, 19 I&N Dec. 357 

(BIA 1980; Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985); 

Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982). The harmful 

effect to society from drug offenses has consistently been recognized by Congress in the clear distinctions and disparate statutory 

treatment it has drawn between drug offenses and other crimes. 

Compare sections 241(a)(1) and (4) with 241(a)(11) of the Act, 8 

§§ 1251(a)(1), (4) and (11) (1982). See also section 241(b) of the 

Act. By the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stet. 102, 

Congress added sections 207(c)(3) and 209(c) of the Act, 8 U.S.C. 

§§ 1157(c)(3) and 1159(c) (1982), which, in relevant part, permit the 

Attorney General to waive the criminal exclusionary provisions of 

section 212(a) of the Act'. Congress recognized that such a waiver 

might be required in the discretion of the Attorney General for humanitarian reasons consistent with the purposes of the Refugee 

Act. However, it specifically excepted from these waiver provisions 

that part of section 212(a)(23) relating to trafficking in narcotics, 

again demonstrating the seriousness with which it views this particular type of criminal offense. S. Rep. No. 256, 96th Cong., 1st 

Secs. 15, reprinted in 1980 U.S. Code Cong. & Ad. News 141, 155. 

By regulation, an alien subject to the enumerated grounds of 

statutory ineligibility for withholding of deportation contained in 

section 243(h)(2) of the Act is also precluded from being granted 

asylum by a district director. See 8 C.F.R. § 208.8(f)(1) (1988). This 

regulatory bar does not preclude an immigration judge or the 

Board from granting asylum to an alien within the scope of section 

243(hX2) of the Act. 2However, we have considered the presence of 

a statutory bar to withholding of deportation on the basis of a 

crime to be a controlling factor in determining whether an alien 

warrants a grant of asylum in the exercise of discretion. We have 

approved pretermitting the consideration of asylum applications 

where, based on the conviction for a particularly serious crime, it 

was evident that asylum ultimately would be denied in the exercise 

of discretion. 

Sections 207 and 209 were added by section 201(b) of the Refugee Act of 1980. 

2We recognize that an alien who has participated in the persecution of others 

within the meaning of the Art is not only statutorily ineligible for withholding of 

deportation pursuant to section 243(h)(2XA) but is also barred from a grant of 

asylum under section 208(a) because his conduct excludes him from the definition of 

refugee under section 101(aX42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). Section 

101(aX42)(B) of the Ant. 

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Interim Decision #3071 

This practice of pretermitting asylum applications in cases involving aliens convicted of particularly serious crimes has been judicially reviewed and most recently rejected by the United States 

Court of Appeals for the Eleventh Circuit in Arauz v. Rivkind, 845 

F.2d 271 (11th Cir. 1988). See also Shuhandeh-Pey v. INS, 831 F.2d 

1384 (7th Cir. 1987). We now withdraw approval of the practice of 

pretermitting asylum applications in such cases. As neither the 

statute nor the regulations governing the consideration of asylum 

applications precludes immigration judges or the Board from granting asylum to applicants convicted of particularly serious crimes, 

an immigration judge should not refuse to conduct a full evidentiary hearing and consider the evidence of record in its totality simply 

because an applicant for asylum is ineligible for withholding of deportation under the provisions of section 243(h)(2) of the Act. The 

nature and gravity of the conviction may militate heavily against 

an applicant for asylum, and in cases may ultimately be the determinative factor, but it is not the only evidence that should be received and considered by an immigration judge or this Board in 

evaluating whether an otherwise eligible applicant warrants a 

grant of asylum as a matter of discretion. To the extent that any of 

the Board's prior precedents suggest a different result they are 

modified. 3 

We recognize that on rehearing the court in Arauz v. Rivkind, 

supra, at 276, disavowed the district court's requirement that a full 

evidentiary hearing be conducted in these cases and stated that the 

regulations only required that the alien be afforded some meaningful opportunity to be heard. However, the Board finds that under 

the existing regulations, which neither address "pretermission" by 

an immigration judge or the Board nor set forth a procedure for 

other than a full evidentiary hearing in the relevant cases, the general regulatory procedures should be followed, even in cases involving aliens who have been convicted of "particularly serious 

crimes." For reasons as much practical as any other, the Board 

finds that a change, if any, to the general regulatory procedures is 

more appropriately addressed through regulatory revision. The 

Board is not confident that, under the present regulations, holding 

full evidentiary hearings in these cases ultimately will be any more 

time consuming than creating "hybrid" procedures with concurrent 

3 The Board's prior precedents which are modified include: Matter of Garcia-Garroche, 19 I&N Dec. 428 (BIA 1986); Matter of Carbalic, 19 I&N Doe. 357 (BIA 1986); 

Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985); Matter of Salim, 18 MN Dec. 

311 (BIA 1982); Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982); Matter of Doural, 

18 I&N Dec. 37 (BIA 1981); Matter of Ballester-Garcia, 17 I&N Dec. 592 (BIA 1980); 

cud Matter of Rodriguez-Palm:a, 17 I&N Dec. 465 (BIA 1980). 
Interim Decision #3071 

challenges both to the nature of the procedures and the appropriateness of their application in any given case. 

As the immigration judge in the present case pretermitted consideration of the applicant's request for asylum, denying him the 

opportunity to file a Request for Asylum and to introduce evidence 

in support of a favorable exercise of discretion with regard to the 

requested relief, the appeal will be sustained and the record remanded. On remand, the applicant shall be afforded the opportunity to present evidence on the merits of his asylum claim and evidence as to whether the requested relief is warranted in the exercise of discretion. 

ORDER: The appeal is sustained. 

FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing 

opinion and the entry of a new decision. 

CONCURRING OPINION: Michael J. Heilman, Board Member 

I respectfully concur. 

While I agree with the majority that pretermission of an asylum 

claim on the ground that the applicant has committed a "particularly serious crime" is incorrect, I would not link this conclusion so 

strongly to the holding in Arauz v. Rivkirzd, 845 F.2d. 271 (11th Cir. 

1988). That decision is based on an interpretation of regulatory language. The court strongly implies that a simple change in the regulations would be sufficient to accord immigration judges the same 

authority to deny asylum supposedly provided to district directors 

under 8 C.F.R. § 208.8(fXiv) (1988), without considering, "if offered, 

evidence other than the alien's conviction when considering a request for asylum." Arauz v. Rivkind, supra, at 277. 

If my understanding of the Eleventh Circuit's decision is correct, 

then we could find ourselves revisiting this issue, if the regulations 

were to be changed. I do not believe that this impression should be 

left. There are many substantial reasons for withdrawing from previous Board decisions which authorized the pretermission of 

asylum claims. One would not know from reading this decision that 

any existed, and that they exist quite independently of Arauz v. 

Rivkin, supra, and Shahandeh-Pey v. INS, 831 F.2d 1384 (7th Cir. 

1987). In my view, the most compelling reason for withdrawing 

from our previous position is that, in practice, section 208 of the 

Immigration and Nationality Act, 8 § 1158 (1982), has 

become virtually indistinguishable from section 243(h) of the Act, 8 

U.S.C. § 1253(h) (1982), in regard to the effect a conviction for a particularly serious crime has on an asylum application. In essence, 

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Interim Decision #3071 

section 243(h)(2)(B) of the Act has been incorporated by adminis' trafive interpretation into section 208 of the Act, and the provisions 

have become coterminous. 

Secondly, the practice of preterrais' sion of asylum claims appears 

to have ignored the basically humanitarian nature of asylum. If 

one accepts the proposition that the asylum process by its very 

nature is meant to provide refuge to persons whose lives or freedom are in danger, then it hardly seems advisable to provide a 

process which specifically permits an immigration judge or this 

Board to bar any evidence of the nature of the harm the applicant 

might face. If, for instance, an individual faced the possibility of 

death, or torture and inhuman treatment, would we not want to 

know this before deciding to deny asylum in discretion, even where 

the individual has committed a particularly serious offense? 

Finally, the decision reaches an issue which was not raised on 

appeal by the applicant, the question of whether the convictions 

were for a "particularly serious offense!' 'While it was not necessary to reach this issue, the majority's discussion might leave one 

with the impression that the term has been applied only to drug 

trafficking and similar offenses. I would simply add for purposes of 

clarification that this provision has enjoyed in several instances a 

very expansive interpretation. In addition, it has, as a general 

matter, been interpreted to reach well beyond the categories of offenses suggested in the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 

Protocol Relating to the Status of Befugees (Geneva, 1979), whose 

more limited application of this provision strikes me as more in 

keeping with the nature of the asylum provisions. The Handbook 

would apply this language only to a. "capital crime or a very grave 

punishable act." Id. at para. 155. 

The majority is correct that Ararsz v. Rivkind, supra, is a good 

reason to withdraw from the practice of pretermitting asylum 

claims. It is not the best or most substantial reason, however, and I 

would base the decision on the other grounds discussed above, as 

well.