Interim Decision #3180 

MATTER OF CIn 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superseded in part by Congress through amendment of section 243(h)(2) of the 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) 

of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5053 (effective 

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 aggravated 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), 

529 
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.2The appeal will be dismissed. The respondent'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 immigration judge found the respondent deportable on the charges set forth 

above. The respondent raises no challenge on appeal to the immigration 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. 

2We 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. 

530 
Interim Decision #3180 

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 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: 

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 regulations 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 

531 
Interim Decision #3180 

conviction occurred before November 29, 1990. However, the technical amendments to the Immigration Act of 1990 made clear that the 

amendment of section 243(h)(2) by section 515(a)(2) of the Immigration Act of 1990 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 306(a)(13) of the 

Miscellaneous and Technical Immigration and Naturalization Amendments 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 proceedings 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 conviction); 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); 

532 
Interim Decision #3180 

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 necessarily 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 circumstances 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. BeltranZavala 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 

533 
Interim Decision #3180 

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 deportation 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 "particularly 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 determining 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 

534 
Interim Decision #3180 

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 applications 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 UM., supra, at 332. 

41<