1 This section, as amended, states that an alien is deportable if he is "convicted of an aggravated

felony at any time after entry ...". 8 U.S.C. § 1251(a)(2)(A)(iii). The offense for which Martins

was convicted is considered an aggravated felony. See 8 U.S.C. § 1101(a)(43) and 18 U.S.C. §

924(c)(2). United States Court of Appeals,

Fifth Circuit.

No. 91–5025

Summary Calendar.

Ayo MARTINS, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Sept. 23, 1992.

Petition for Review of an Order of the Immigration and Naturalization Services.

Before KING, EMILIO M. GARZA and DEMOSS, Circuit Judges.

PER CURIAM:

Petitioner seeks review of a deportati on order entered by the Board of Immigration Appeals.

Our authority to review final orders of deportation lies in section 106(a) of the Immigratio n and

Nationality Act, 8 U.S.C. 1105a(a).

I. BACKGROUND

Ayo Martins ("Martins"), a native and citizen of Nigeria, entered the United States in 1981

on a student visa. He is married to a U.S. citizen and has two U.S. citizen children. In April 1986,

Martins was convicted of conspiracy to possess heroin with i nt ent t o distribute, in violation of 21

U.S.C. §§ 841(a)(1), and 846. He was sentenced to 15 years incarceration and three years special

parole. While Martins was serving his sentence, the Immigration and Naturalization Service ("INS")

served him with an Order to Show Cause why he should not be deported, based upon his convictions,

as provided in 8 U.S.C. § 1251(a)(11). 12 See, Procedures for Asylum and Withholding of Deportation, 8 C.F.R. § 208.14 which states:

(c) Mandatory Denials. An application for asylum shall be denied if:

(1) The alien, having been convicted by a final judgment of a particularly serious

crime in the United States, constitutes a danger to the community.

3 See, 8 U.S.C. § 1101(a)(43), which defines an aggravated felony as including, "... any illicit

trafficking in any controlled substance (as defined in section 102 of the Controlled Substances

Act), including any drug trafficking crime as defined in section 924(c)(2) of title 18 United States

Code, ..."; and 18 U.S.C. § 924(c)(2), which defines drug trafficking crimes as, "any felony

punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.) ..."

4 The IJ noted that possession with intent to distribute heroin was found to be a "particularly

serious crime" in Matter of Gonzalez, 19 I & N Dec. 682 (BIA 1988).

5 The IJ stated "Because of his criminal record and the finding of deportability pursuant to

Section 241(a)(11) of the I & N Act, he is not eligible for suspension, adjustment, asylum,

withholding, or even the minimal discretionary consideration of voluntary departure." At his deportati on hearing, Martin s co nceded his deportability, as charged by the INS,

admittin g t hat he was convicted for the above-described offenses. Martins then requested a

continuance and advised the Immigration Judge ("IJ") that he would be submitting an application for

political asylum. The IJ expressed doubt that Martins was eligible to obt ain asylum as an alien

convicted of a "particularly serious crime". Under the INS regulations concerning asylum, an alien

convicted of a particularly serious crime is held to be a danger to the community and cannot apply

for asylum. 2

The IJ accepted Martins' asylum application for identification purposes only, and ordered the

parties to brief the issue of whether a person convicted of a particularly serious crime can apply for

and receive asylum. The IJ noted that neither party briefed this precise issue. The INS argued that

under 8 U.S.C. § 1158(d), aliens convicted of aggravated felonies 3 are precluded from applying for

or obtaining asylum. Martins argued that he would experience extreme hardship if deported to

Nigeria because he would be subject to criminal prosecut i on in that country. Without reaching

whether the convictions were "aggravated felonies" under the new statute, the IJ found that Martins

was convicted of at least one "particularly serious crime" 4 and that this, in and of itself, was sufficient

to pretermit Martins' application under 8 C.F.R. § 208.14(c). 56 Under 8 C.F.R. § 208.3(b), any application for asylum will automatically constitute as an

application for withholding of deportation. The Board of Immigra t ion Appeals ("BIA") affirmed the IJ's ruling, finding that Martins'

application for asylum and withholding of deportation 6 must be denied. The BIA based its holding

on the language of 8 U.S.C. § 1253(h)(2), which provides, in pertinent part, that the withholding of

deportati on provision shall not apply if an alien, "having been convicte d by final judgment of a

particularly serious crime, constitutes a danger to the community of the Uni ted States." The BIA

further noted that the new asylum regulations applied to all applications for asylum or withholding

of deportati on that are filed on or after October 1, 1990. Since Martins' application for asylum was

filed on March 7, 1991, it was properly denied under 8 C.F.R. § 208.14.

Martins now contends that the IJ and the BIA erred in not allowing him to apply for asylum

and withholding of deportation. Martins also contends that the BIA's interpretation of relevant

statutes is unconstitutional.

II. DISCUSSION

A. The Application for Asylum

First, Martins argues that he was improperly precluded from applying for asylum because the

IJ and t he BIA misinterpreted 8 C.F.R. § 208.14 on mandatory denials of asylum. Their

interpretation will be upheld if it is reasonable and not con t rary t o congressional intent.

Martinez–Montoya v. I.N.S., 904 F.2d 1018, 1021 (5th Cir.1990), citing Martin v. Kilgo r e First

Bancorp., 747 F.2d 1024 (5th Cir.1984).

Martins' argument is without merit because Martins is statutorily ineligible to apply for

asylum under 8 U.S.C. § 1158(d). Subsection (d) to § 1158 was added by the 1990 Immigration Act

and states that "an alien who has been convicted of an aggravated felony,

..., may not apply for or be

granted asylum." The term "aggravated felony" was first defined in the Anti–Drug Abuse Act of7 A drug trafficking crime is defined in 18 U.S.C. § 924(c)(2) to include: "any felony

punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.) ..."

8 See, Technical Amendments, Pub.L. No. 102–232, 105 Stat. 1733, § 306(a)(13) (1991). 1988 ("ADAA") codified as amended at 8 U.S.C. § 1101(a)(43) and includes any "drug trafficking

crime", as defined in 18 U.S.C. § 924. 7 Martins' heroin convictions are within the definition of "drug

trafficking crime". Therefore, Martins' conviction constitutes an aggravated felony under the ADAA

definition.

Martins next contends that he is not an aggravated felon because he was convicted in 1986

and the aggravated felony provision was adopted as part of the ADAA in 1988. We must now decide

whether section 1158(d) precludes an alien from applying for asylum if the alien has been convicted

of an aggravated felony prior to the effective date of the ADAA. This court has already addressed

this issue, in a different context, in Ignacio v. I.N.S., 955 F.2d 295 (5th Cir.1992) (en banc). In

Ignacio, an alien was seeking to avoid the consequences of an Immigration Act provision, barring

aggravated felons from invoking an automatic stay of deportati on, because his conviction was prior

to the ADAA. I

d. at 297. In I

gnacio, the court noted that the 1990 Immigration Act did not address

the "substantive retroactivity question—when the [aggravated felony ] co nviction must have

occurred." I

d. at 298, quoting Ayala–Chavez v. I.N.S., 945 F.2d 288, 291 n. 5 (9th Cir.1991). The

Ignacio court found that Congress answered this question in its 1991 Technical Amendments to the

Immigration Act, which state that the 1990 amendments "apply to convictions entered before, on, or

after [the effective] date." Miscellaneous and Technical Immigration and Naturalization Amendments

of 1991 (Technical Amendments), Pub.L. No. 102–232, 105 Stat. 1733, § 306(a)(11) (1991). Like

the Ignacio court, we conclude that Congress inserted the "on, before, or after" 8 lang uage, into §

1158(d), in order to bar from asylum those a liens who se convictions fall under the definition of

"aggravated felony", regardless of the date of those convictions. Id. at 298. We hold that Martins

i s an "aggravated felon" under § 1158(d), and the BIA did not err in finding Martins ineligi ble to

apply for asylum.9 See, 8 U.S.C. § 1253(h)(2), which states that a withholding of deportation "shall not apply to

any alien if the Attorney General determines that ... B) the alien, having been convicted by a final

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

States."

10 For a contrary opinion, See, William M. Audet, "Representing the Institutionalized Mariel

Cubans—The Wisconsin Experience", 1987 Wisc.L.Rev. 455, 482–3 (1987). B. The Application for Withholding of Deportation

Martins alleges that the BIA erred in not allowing him to apply for a withhol di

ng of

deportation under 8 U.S.C. § 1253(h)(2) for two reasons: first because the INS did not show that

his crime was particularly serious and second, because there was no separate findings to show that

he was a danger to the community. 9

Martins contends that the IJ must examine the underlying facts and circumstances of the

conviction to determine if the crime is particularly serious. Section 1253(h)(2) was amended by the

1990 Immigration Act to provide that "an alien who has been convicted of an aggravated felony shall

be considered to have committed a particularly serious crime." Immigration Act of 1990, Pub.L. No.

101–649 § 515(a)(2), 104 Stat. 4978, 5053 (1990). This amendment also applies to convictions for

aggravated felonies entere d "before, on or after" the date of the act (November 29, 1990). I d.

Therefore, Martins' aggravated felony conviction constitutes a conviction for a particularly serious

crime, as defined in the statute.

Martins' second contention is that under the wording of 8 U.S.C. § 1253(h)(2)(B), the INS

is required to show that an alien has both committed a particularly serious crime and is a danger to

the community. This Circuit has not yet confronted this quest io n. However, both the Ninth and

Eleventh Circuits have ruled that the statute does not require this dual showing. 10

The Eleventh Circuit based its decision on Congressional intent and the plain language of the

statute. The statute "does not connect its two clauses with a conjunction, rather the statute set[s]

forth a cause and effect relationship: the fact that the alien has committed a particularly serious crime11 The Refugee Act of 1980 amended § 1253(h) to incorporate § 1253(h)(2)(b) in order to

conform to the standards of the United Nations. See, Zardui–Quintana, 768 F.2d at 1222

(Vance, J., concurring in result). makes the alien dangerous within the meaning of the statute." A rauz v. Rivkind, 845 F.2d 271 (11th

Cir.1988), citing Crespo–Gomez v. Richard, 780 F.2d 932 (11th Cir.1986); s ee also,

Zardui–Quintana v. Richard, 768 F.2d 1213, 1222 (11th Cir.1985) (Vance, J., concurring in result).

Therefore, the Eleventh Circuit holds that "the only finding required by section 1253(h)(2)(B) is that

the alien has been convicted of a "particularly serious crime'." A rauz, 845 F.2d at 275, ci ti ng

Crespo–G omez, 780 F.2d at 934–35. Furtherm ore, the A rauz court said that since the "narcotics

conviction was in the record, the Immigration Judge did not have to consider additional information

concerning Arauz's request for deportati on, because no amount of evidence would have negated the

fact of Arauz's statutory ineligibility for withholding of deportation." Arauz, 845 F.2d at 275.

In connection with th e wording of § 1253(h)(2)(B), the Ninth Circuit has stated, "the

participle phrase "having been convicted by a final judgment of a particularly serious crime,' modifies

the word "alien' and thus limit s those aliens who may be determined to be a danger to those who have

been finally convicted of serious crimes." R amirez–Ramos v. I.N.S., 814 F.2 d 1394, 1397 (9th

Cir.1987). The court also holds that the statute only requires "the factual finding of conviction of a

particularly serious crime to support the determination of danger to the community." Id.

Martins bases his contention on two factors first, on the intent of Congress and second, on

principles of grammar. Martins' congressional intent argument is based on a letter to the INS from

Senator Edward Kennedy, Chairman of the Se nat e Subcommittee on Immigration and Refugee

Affairs. The letter suggests that Congress intended to require the INS to make a dual showing of a

conviction for an aggravated felony and a danger to the community. However, this interpretation is

in direct conflict with the legislative history accompanying the Refugee Act. 11 The House Judiciary

Committee Report clearly states that the act intended to make those aliens, "who have been convicted

of a particularly serious crime which makes them a danger to t he community", ineligible for awithholding of depor tation. H.R.Rep. No. 608, 96th Cong., 1st Sess. 18 (1979), ci ted i n

Zardui–Quintana, 768 F.2d at 1222 (Vance, J., concurring in result). Although the Senate version

of the Refugee Act was passed, the final version incorporated the House provisions on Asylum and

Withholding of Deportation. Z ardui–Quintana, 768 F.2d at 1222 (Vance, J., concurring in result),

citing S.Conf.Rep., No. 590, 96th Cong., 2d Sess. 20 (1980), U.S.Code Cong. & Admin.News 1980,

p. 141.

In his concurring opinion in Zardui–Quintana, Judge Vance discusses the practical problems

which would result from a dual findings requirement. "A separate determination of an alien's potential

dangerousness would require a prediction as to an alien's potential for recidivism and would lead to

e xtensive, drawn-out hearings complete with psychological evaluations and expert testimon y

.

Zardui–Quintana, 768 F.2d at 1222–23 (Vance J., concurring in result). The fact that Congress did

not address these potential problems indicates that it did not intend to burden the INS with these

complexities. Id. at 1223.

Martins also argues that basic principles of grammar dictate that participle modifiers set off

by commas are not essential to the principal thought of the sentence and therefore, the wording of

section 1253(h)(2)(B) requires a separate showing of a danger to the community. However, even

accepting this principle arguendo, it does not further Martins' claim. The statute requires a showing

of a danger to the community, and Congress clearly intended that a conviction of a particularly

serious crime is sufficient to show a danger to the community. See, Zardui–Quintana, 768 F.2d at

1222, and Ramirez–Ramos, 814 F.2d at 1397.

In summary, based on the rationale of these prior decisions and the intent of Congress, we

now join the Ninth and Eleventh Circuits in holding that 8 U.S.C. § 1253(h)(2)(B) requires only a

showing that the defendant was convicted of a particularly serious crime. We hold, therefore, that

the BI A's decision to deny the withholding of deportation is supported by substantial evidence.Zamora–Morel v. I.N.S., 905 F.2d 833, 838 (5th Cir.1990) (review of BIA's conclusion on

withholding is subject to "substantial evidence" standard of review).

C. The Constitutional Issue

Martins' final argument is that the BIA's interpretations of the withholding of deportati on and

asylum statutes violate the Fifth Amendment principles of Due Process.

Martins correctly states that aliens subject to deportati on are entitled to a fair hearing. W ong

Yang Sung v. McGrath, 339 U.S. 33, 49–50, 70 S.Ct. 445, 454, 94 L.Ed. 6 16 (1950). However,

Martins did receive a hearing on his deportati on and was found by an IJ to be deportable. Martins'

claim then goes one step further to allege that he was entitled to a "full and fair" hearing not only on

deportati on, but also on his applications for asylum and withholding. The Eleventh Circuit, while

reviewing a denial of a request for withholding of deportati on, stated t hat because the "narcoti cs

conviction was in the record, the immigration judge did not need to consider additional information

... because no amo unt of evidence would have negated the fact of statutory ineligibility for

withholding of deportati on." A rauz, 845 F.2d at 275. Furthermore, this Court has ruled that "absent

statute or regulation requiring a hearing, we see no reason why, and are c ited to no authori ty

supporting that, due process is offe nded if no hearing is granted on an application that on its face

must b e denied as a matter of law." S anchez–Dominguez v. I.N.S., 780 F.2d 1203, 1206 (5th

Cir.1986) (Aliens were not denied due process when they did not receive hearing on their application

for suspension of deportati on where their application on its face showed failure to meet threshol d

requirement of statute).

Martins relies on the Arauz case t o est ablish that an application for asylum requires an

"individual balancing of all relevant factors". A rauz required a hearing on an application of asylum,

but the ruling was based on the INS regulations that were in place at that time. Arauz, 845 F.2d at

275–76. The Attorney General has since revised the regulations in an attempt "to overcome the line12 See, Procedures for Asylum and Withholding of Deportation, 8 C.F.R. § 208.14(c)(1).

13 See, Exclusion of Aliens, 8 C.F.R. § 236.3(c) which states that "an evidentiary hearing

extending beyond issues related to the basis for a mandatory denial of the application pursuant to

8 C.F.R. 208.14 or 208.16 is not necessary once the immigration judge has determined that such a

denial is required. of decisions, represented by Arauz. " 53 Fed.Reg. 28232 (1988) (codified at 8 C.F.R. § 208). The

regulation now lists conditions for mandatory denials of asylum applications 12 and also expressly state

that a hearing is not required for mandatory denials. 13

We, therefore, cannot agree that an alien would be entitled, under the Due Process principles

of the Fifth Amendment, to a hearing on an application, which he is statutorily ineligible to receive.

For the foregoing reasons, the order of the BIA is AFFIRMED.