19 I&NDEC 664 - JUAREZ

Interim Decision *M66




                          MAl 1ER OF JUAREZ

                       In Deportation Proceedings

                                A-27582484

                    Decided by Board April 29, .1988

  Except possibly under unusual circumstances not present here, a
single conviction for a misdemeanor offense is not a "particularly
serious crime" within the scope of section 243(h)(2)(B) of the Trnmigration and Nationality Act,

8 U.S.C. § 1253

(h)(2)(B) (1982).
CHARGE:
 Order: Act of 1952—Sec. 241(aX2) [

8 U.S.C. § 1251

(aX2)]—Entered without impaction
ON BEHALF OF RESPONDENT:                       ON BEHALF OF SERVICE:
 William Drysdale, Esquire                       Beverley Phillips
 1918 Lake Shore Avenue, Suite 65                General Attorney
 Oakland, California 94606

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



   In a decision dated May 5, 1987, an immigration judge found the
respondent deportable as charged under section 241(aX2) of the Immigration and Nationality Act,

8 U.S.C. § 1251

(a)(2) (1982), denied
his requests for asylum and withholding of deportation under sections 208(a) and 248(h) of the Act,

8 U.S.C. §§ 1158

(a) and 1253(h)
(1982), and ordered him deported to Guatemala_ The respondent
has appealed. The record will be remanded.
The respondent is a 32-year-old native and citizen of Guatemala
who entered the United States near San Ysidro, California, in June
1983 without inspection. The record reflects that the respondent
was convicted upon a plea of guilty in the Municipal Court of the
City and County of San Francisco, State of California, on July 31,
1985, of a misdemeanor offense of assault upon. another with a
deadly weapon. He was sentenced to 4 days' time served, 6 months'
suspended sentence, and 2 years' probation.

664
Interim Decision 4t3066

Concluding that the respondent's 1985 misdemeanor conviction
was for a "particii arly serious crime" and that he therefore was
statutorily ineligible for asylum and withholding of deportation,
the iramigraticm judge declined to take the testimony of the respondent or any other witness and pretermitted further consideration of the requested relief. We do not agree with the immigration
judge's conclusions. Except possibly under unusual circumstances
not present here, we would not find a single conviction for a misdemeanor offense to be a "particularly serious crime" within the
scope of section 243(h)(2)(B) of the Act.
Ordinarily an alien seeking athniRsion as a refugee should be provided an opportunity to request asylum and withholding of deportation. See 8 C.F_R. §§ 208.10, 236.3(a) (1988); Matter of Saban,

18 I&N Dec. 70

 (131A 1981). We recognize that the right to request
asylum or withholding of deportation generally carries with it the
incidental right to be heard on the application, absent statutory ineligibility for the requested relief.

8 C.F.R. §§ 208.3

, 208.10(a) (1988).
   Under the facts of this case we are satisfied that the respondent
was not provided an adequate opportunity to have his requests for
asylum and withholding of deportation considered. Accordingly, we
will remand the record to the immigration judge for further proceedings to afford the respondent that opportunitY.
   ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and the
entry of a new decision.