K

Interim Decision #3163




                               MATTER OF
                          In Deportation Proceedings
                                    A-29690266
                    Decided by Board November 5, 1991

   The language of section 515(a)(2) of the Immigration Act of 1990, Pub. L. No. 101-
649, 

, 5053 (enacted Nov. 29, 1990), amending section 243(h)(2) of the
Immigration and Nationality Act, 

(h)(2) (1988), expressly states that an
alien convicted of an aggravated felony shall be considered to have committed a
"particularly serious crime" for purposes of section 243(h)(2)(B), thereby obviating the
need for a case-by-case determination of this question, but does not alter the conclusion
in Matter of Carballe, 

 (BIA 1986), modified on other grounds, Matter of
Gonzalez, ig 1&N Dec_ 682 (BIA 1988), that under section 243(h)(2)(B) all aliens
convicted of "particularly serious crimes" necessarily constitute a "danger to the
community." Matter of U-M-, 

 (BIA 1991), affil, 

 (9th
Cir. 1993); Matter of Gonzalez, supra; Matter of Garcia Garrocho, 

 (BIA
                                                       -

I Q86), modified on other grounds. Matter of Gonzalez. supra; and Matter of Carballe,
supra, clarified.

CHARGE:
Order: Act of 1952—Sec. 241(a)( I) [8 U.S.0 § 1251(a)(1)]—Excludable at entry under
                     section 212(a)(20) [

(a)(20)]—No valid immigrant visa
                     Sec. 241(a)(11) [

(a)(11)I—Convicted of controlled
                       substance violation
                     Sec. 241(a)(4)(B) [

(a)(4)(B)]—Convicted of aggravated felony
ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
  Margaret Gleason, Esquire                           James Reynolds
  Catholic Legal Immigration Network                  Acting Appellate Counsel
  1221 Massachusetts Avenue, N.W.
  Washington, D.C. 20005                                   Janice B. Podolny
                                                           District Counsel

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


  On April 26, 1991, the immigratinn judge found that the respondent, an alien convicted of two aggravated felonies, was barred from
applying for asylum under section 208(a) of the Immigration and
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                                                 Interim Decision #3163

Nationality Act, 

(a) (1988). The immigration judge
further concluded that although the respondent was deemed to have
committed a "particularly serious crime" for purposes of section
243(h)(2)(B) of the Act, 

(h)(2)(B) (1988), as a result of
his convictions, he would nevertheless be eligible to pursue withholding of deportation under section 243(h) of the Act if he could show that
he does not "constitute[] a danger, to the community of the United
States" within the meaning of section 243(h)(2)(B) of the Act. The
immigration judge set a hearing for May 10, 1991, to determine
whether the respondent constitutes a danger to the community. On
May 3, 1991, the Board denied a request by the Immigration and
Naturalization Service for a stay of the proposed hearing, and the
evidentiary hearing was held as scheduled. On June 4, 1991, the
immigration judge issued a decision finding that the respondent was
no longer a danger to the community within the meaning of section
243(h)(2)(B) of the Act and therefore was entitled to be heard on his
application for withholding of deportation to Liberia. The immigration judge scheduled a hearing for July 2, 1991, for adjudication of the
merits of the persecution claim. On June 11, 1991, the Service filed
this interlocutory appeal of the immigration judge's decision and
sought a stay of the proceedings. The Service also filed a motion to
reconsider with the immigration judge and requested a stay of the
proceedings based on Matter of U-M-, 

 (BIA 1991),
Ord, 

 (9th Cir. 1993), which was issued by the Board on
June 5, 1991, the day after the immigration judge's decision. On June
14, 1991, the immigration judge denied the Service's motion for
reconsideration and a stay of proceedings. On June 18, 1991, the
respondent requested permission to "join" in the Service's interlocutory appeal. On June 28, 1991, the Board granted a stay of the
proceedings and subsequently heard oral argument on August 1, 1991.
The Service's interlocutory appeal will be considered and sustained,
and the record will be remanded to the immigration judge.
  In order to avoid the piecemeal review of the many questions which
may arise in a deportation proceeding, this Board does not ordinarily
entertain interlocutory appeals. See Matter of Ruiz Campuzarto, 17
                                                      -



I&N Dec. 108 (BIA 1979); Matter of Ku, 

 (BIA 1976);
Matter of Sacco, 

 (BIA 1974). We have on occasion
ruled on the merits of interlocutory appeals where we deemed it
necessary to address important jurisdictional questions regarding the
administration of the immigration laws, or to correct recurring
problems in the handling of cases by immigration judges. See Matter of
Guevara, 

 (BIA 1990, 1991); Matter of Garcia Reyes,

 (BIA 1988); Matter of Rosales, 

(BIA 1988); Matter of Amico, 

 (BIA 1988); Matter of
                                  419
Interim Decision #3163

Correa, 19 I8EN Dec. 130 (BIA 1984); Matter of Victorino, 

 (BIA 1982); Matter of Alphonse, 

 (BIA
1981); Matter of Wadas, 

 (BIA 1980); Matter of Seren,

 (BIA 1976); Matter of Fong, 

 (BIA
1974). We find the issues presented in this case appropriate for review
at this time.'
   The respondent is a native and citizen of Liberia who entered the
United States at New York, New York, in June of 1980. On June 20,
1990, the respondent was convicted in the Circuit Court for Frederick
County, Maryland, of distribution of a controlled substance (cocaine)
in violation of Article 27, Section 286(a) of the Annotated Code of
Maryland. The respondent was also convicted in the Circuit Court for
Prince George's County, Maryland, on June 25, 1990, of possession
with intent to distribute a controlled substance (cocaine) in violation
of Article 27, Section 286(a)(1) of the Annotated Code of Maryland.
By an Order to Show Cause, Notice of Hearing, and Warrant for Arrest
of Alien filed on November 16, 1990, the respondent was charged with
deportability under section 241(a)(4)(B) of the Act, 

(0(4)(B) (1988),2 for conviction of an aggravated felony, under
section 241(a)(11) of the Act' for conviction of a controlled substance
violation; and under section 241(a)(1) of the Ace as an alien
excludable at the time of entry as an immigrant not in possession of a
valid immigrant visa or other entry document. The respondent does
not contest that his convictions are aggravated felonies within the
meaning of section 101(a)(43) of the Act, 

(a)(43)
(1988). The only issue on appeal is whether the respondent's convictions render him ineligible for withholding of deportation to Liberia.'
   Pursuant to section 515(a)(1) of the Immigration Act of 1990, Pub.

   iThe Service's interlocutory appeal, joined by the respondent, is from the June 4,
1991, decision of the immigration judge. Upon being questioned by the Board at oral
argument, both parties requested that the immigration judge's June 14, 1991, decision
on the motion for reconsideration also be considered as part of the current joint appeal.
We have reviewed both of these orders in reaching our decision.
   2 Revised and redesignated as section 241(a)(2)(A)(iii) of the Act by section 602 of the
Immigration Act of 1990, 

 Stat. 4978, 5080 (effective Nov. 29,
1990).
   3 Revised and redesignated as section 241(a)(2)(B) of the Act by section 602 of the
Immigration Act of 1990, 104 Stat. at 5080.
   4 Revised and redesignated as section 241(aX1XA) of the Act by section 602 of the
Immigration Act of 1990, 104 Stat. at 5077-78.
   'Although the Attorney General has designated Liberia under the Temporary
Protected Statue Program pursuant to section 744A(b) of the Act, 8 U.S.C. § 1254a(b)
(Supp. II 199 0), the respondent, by virtue of his conviction for a drug-related aggravated
felony, is not eligible for temporary protected status under section 244A(c)(2) of the Act.
See 

 (1991).

                                           420
                                                           Interim Decision #3163

L. No. 101-649, 

, 5053 (enacted November 29, 1990),
which amended section 208 of the Immigration and Nationality Act,
an alien who has been convicted of an aggravated felony "may not
apply for or be granted asylum." This bar applies to applications for
asylum made on or after November 29, 1990, and, therefore, as found
by the immigration judge, renders the respondent in this case ineligible
to apply for asylum.
   Section 243(h)(2)(B) of the Act states 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."
   Section 515(a)(2) of the Immigration Act of 1990, 104 Stat. at 5053,
amended section 243(h)(2) to add the following at the end: "For
purposes of subparagraph (B), an alien who has been convicted of an
aggravated felony shall be considered to have committed a particularly
serious crime." The 1990 Act is silent as to the effective date of section
515(a)(2). In Matter of U M , this Board found that in the absence of
                              -   -


any statutory instruction to the contrary, the effective date of the
amendment was the date of enactment of the 1990 Act, which was
November 29, 1990. Matter of u-m., supra, at 332. We therefore apply
the amended version of section 243(h)(2) of the Act in reviewing the
respondent's eligibility for withholding of deportation. Id.
   In Matter of Carballe, 

 (BIA 1986), modified on
other grounds, Matter of Gonzalez, 

 (BIA 1988), we
rejected the contention that section 243(h)(2)(B) requires two separate
and distinct findings as to the seriousness of the crime and the danger
to the community because we found that the proper focus in section
243(h)(2)(B) of the Act is on the serious nature of the crime and not on
the likelihood of future serious misconduct on the part of the alien. As
stated in Car/vile
  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.

Matter of Carballe, supra, at 360 (citing Crespo-Gomez v. Richard, 

 (11th Cir. 1986); Zardui-Quintana v. Richard, 

(11th Cir. 1985) (Vance, J., concurring)); see also Ramirez-Ramos v.
INS, 

 (9th Cir. 1987); Matter of Gnnzalez, supra; Matter
of Garcia-Garrocho, 

 (BIA 1986), modified on other
grounds, Matter of Gonzalez, supra; cf. Matter of Rodriguez-Coto,    

 (BIA 1985), modified on other grounds, Matter of
Interim Decision #3163

Gonzalez, supra; Matter of Frentescu, 

 (BIA 1982),
modified on other grounds, Matter of Gonzalez, supra.
  In Matter of U-M-, supra, while not addressing the specific
arguments raised in the present appeal, the Board followed the holding
of Carballe in applying section 243(h)(2)(B), as amended by the
Immigration Act of 1990, in the case of an alien convicted of an
aggravated felony. We found there that an alien convicted of an
aggravated felony has been convicted of a particularly serious crime
for purposes of section 243(h)(2)(B) of the Act and 

(c)(2)(ii) (1991), and, as no separate finding of danger to the
community is required under Matter of Carballe, the alien is ineligible
for withholding of deportation. Matter of U M , supra, at 5, 8.6
                                                           -   -


   The immigration judge in the instant case reasoned that, based on
the amendments of the Immigration Act of 1990, the Board's decision
in Matter of Carballe, supra, is no longer applicable. He determined
that while an alien convicted of an aggravated felony is considered to
have committed a particularly serious crime, he might not constitute a
danger to the community and therefore would not be barred from
withholding of deportation under section 243(h)(2)(B). The immigration judge found that if Congress, in enacting the Immigration Act of
1990, intended to render all aggravated felons ineligible for withholding of deportation, it would have done so in clear, unambiguous
language as it did for asylum. The immigration judge relied on
representations from Carl W. Hampe, Minority Counsel to the Senate
Subcommittee on Immigration & Refugee Affairs, to the effect that an
alien convicted of an aggravated felony is barred from applying for
asylum but may still request withholding of deportation. Hampe,
Immigration Enforcement, Exclusions and Deportation Provisions of
the Immigration Act of 1990, in The Immigration Act of 1990 212, 216-
17 (1990). Alternatively, the immigration judge found that even after
Matter of U-M the Board "continues" to apply only a "presumption"
                  -



that an alien convicted of a particularly serious crime constitutes a
danger to the community. The immigration judge stated that the
Board "has neither stated nor implied that this presumption is an
irrebuttable presumption; that is, that an individual having been
convicted of a particularly serious crime, to now include an aggravated
felon, is and always will be a danger to the community of the United
States." The immigration judge stressed that it is not logical to find
  6 The regulatory bar to asylum found in S C.F.R. § 208.14(c)(1) (1991) for
commission of a particularly serious crime is, of course, not at issue in this case, as the
respondent is ineligible to apply for asylum, and, absent an application for asylum, the
regulation is not called into play. See section 515(a)(1) of the Immigration Act of 1990,
104 Stat. at 5053.

                                           427
                                                              Interim Decision #3163

that an aggravated felon "will always" pose a danger to the community
and should "forever" be barred from withholding of deportation.
   On appeal the Service contends that Matter of Carballe and Matter
of U-M- are controlling, and that the immigration judge's decision
must therefore be reversed. In his reply brief and at oral argument, the
respondent, through counsel, reiterated the arguments noted by the
immigration judge in support of the conclusion that, subsequent to the
amendments of the Immigration Act of 1990, a finding that an alien
"constitutes a danger to the community of the United States" is
separate and distinct from a finding that he has been convicted of a
"particularly serious crime." The respondent contends that barring an
alien convicted of an aggravated felony from asylum but permitting
him to apply for withholding of deportation is not inconsistent with
the Act in that asylum is a more generous form of relief than
withholding. The respondent further emphasizes the strength of the
underlying merits of his claim for withholding of deportation and that
his trafficking convictions involved only.small amounts of a controlled
substance.
   We find that the plain language of section 243(h)(2) as amended
does not indicate the result reached by the immigration judge. See INS
v. Cardoza-Fonseca, 

 (1987); INS v. Flunpathya, 

 (1984) (the starting point in cases involving statutory
construction must be the language employed by Congress, and it is
assumed that the legislative purpose is expressed by the ordinary
meaning of the words used). Congress is presumed to know the prior
construction of a statute. 1 A N. Singer, Sutherland Statutory Construction §§ 22.33, 22.35 (4th ed. 1985): Matter of Castro, 19 MN Dec.
692, 695 (BIA 1988). Congress did not change the statutory language
of section 243(h)(2)(B) in any way to suggest disapproval of the
Board's construction of this provision in Matter of Carballe, supra.
Through section 515(a)(2) of the Immigration Act of 1990 Congress
clarified that all aggravated felonies are to be considered particularly
serious crimes for the purpose of section 243(h)(2)(B),/ but left section
243(h)(2)(B) and our analysis of it undisturbed. While the language of
section 515(a)(2) expressly states that an alien convicted of an
aggravated felony shall be considered to have committed a particularly
serious crime, thereby obviating the need for a case-by-case determina-
  7 The parties and the immigration judge did not address the question whether only
aggravated felonies are to be considered particularly serious crimes for the purpose of
section 243(h)(2)(13) of the Act as clarified by section 313(a)(2) of the Immigration Act of
1990, or whether certain crimes which are not aggravated felonies may be particularly
serious crimes within the meaning of that provision. We find it unnecessary to decide
this issue for disposition of this interlocutory appeal.
Interim Decision #3163

tion of this question, see Matter of U-M-, supra, at 331-32 (citing
Beltran-Zavala v. INS, 

 (9th Cir. 1990)), it does not alter
the conclusion in Carballe that under section 243(h)(2)(B) all aliens
convicted of particularly serious crimes necessarily constitute a danger
to the community.8 For Congress to repeat the language concerning
"danger to the community" in section 515(a)(2), knowing how the
language of section 243(h)(2)(B) has been interpreted, would only have
been redundant.
    We are not persuaded by the argument that if Congress had
intended to absolutely preclude aggravated felons from withholding of
deportation, it would have used the same unambiguous language that
it did for the asylum preclusion added by section 515(a)(1) of the
Immigration Act of 1990. Considering the existing framework of
statutory bars in section 243(h)(2) and the fact that there is no formal
application for withholding as for asylum, it seems a much simpler
answer that Congress did intend to preclude aggravated felons from
withholding of deportation and, knowing how section 243(h)(2)(B) has
been interpreted, achieved that result by simply clarifying the existing
bar to eligibility in section 243(h)(2)(B), rather than adding a wholly
independent bar based on conviction for an aggravated felony.
    Because we find no ambiguity in the language of section 243(h)(2) as
amended, there is no reason to consult legislative history. Moreover,
with respect to the comments of Carl W. Hampe, Minority Counsel to
the Senate Subcommittee on Immigration & Refugee Affairs, the
respondent has advanced no arguments that the comments of a staff
member are properly considered legislative history or that any
comments which postdate the act to which they refer, as did Mr.
Hampe's, are properly considered legislative history of that act.
    We are also not convinced by the immigration judge's emphasis that
it is not logical to find that an aggravated felon "will always" pose a
danger to the community and should "forever" be barred from
withholding of deportation. In Matter of Carballe, supra, the Board
found that the proper focus of section 243(h)(2)(B) of the Act is on the
   8 We do not agree with the immigration judge's conclusion that the decision in Matter
of Carballe indicates that a finding of particularly serious crime creates only a rebuttable
presumption of danger to the community. At one point in Carballe, in noting that the
statutory key to determining whether an alien constitutes a danger to the community is
whether he has been convicted of a particularly serious crime, we stated that "those
aliens who have been fmally convicted of particularly serious crimes are presumptively
dangers to this country's community." Matter of Carballe, supra, at 360. However, the
unqualified conclusion in Carballe Is that "Mr 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." Id.; see also Ramirez-Ramos v. INS,
supra; Matter of Gonzalez, supra; Matter of Garcia-Garrocho, supra.

                                            424
                                                 Interim Decision #3163

serious nature of the crime and not on the likelihood of future serious
misconduct on the part of the alien. Accordingly, the Board in Carballe
rejected the contention that section 243(h)(2)(B) requires two separate
and distinct findings as to the seriousness of the crime and the danger
to the community. Furthermore, the emphasis of the immigration
judge on rehabilitation potential seems even less appropriate in the
context of aliens convicted of an aggravated felony, considering the
priority given in the Act to streamlined procedures directed at the
prompt deportation of such aliens. See, e.g., section 242(a)(2) of the
Act, 

(a)(2) (1988) (mandatory detention for aliens
convicted of an aggravated felony who are not lawful permanent
residents); section 242(a)(3)(A) of the Act (investigative resources for
identifying and tracking alien aggravated felons); section 242A(a) of
the Act, 8 U.S.C. § 1252a(a) (1988) (special deportation proceedings
for incarcerated criminal aliens); section 242A(c) of the Act (presumption of deportability for aliens convicted of an aggravated felony).
   We note the policy argument raised by the respondent that it would
not necessarily be inconsistent for Congress to make "danger to the
community" a separate and distinct test in section 243(h)(2)(B), and
thereby allow for the possibility of an alien convicted of an aggravated
felony to qualify for withholding of deportation, even if asylum is
categorically denied to aggravated felons, because a grant of asylum
contemplates the adjustment of the alien to lawful permanent resident
status in this country and withholding only requires that the alien not
be deported to the country of persecution. However, based on the
language of section 515 of the Immigration Act of 1990, we find that
Congress did not choose to do so. There is no dispute that Congress
has taken a strong stance in the Immigration and Nationality Act
against aliens who commit aggravated felonies. Removing eligibility
for both asylum and withholding of deportation is consistent with this
stance and creates a strong incentive for aliens coming to this country
not to commit aggravated felonies. For aliens who are established in
this country as longtime lawful permanent residents, relief from
deportation under section 212(c) of the Act, 

(c), may
be available notwithstanding the conviction of an aggravated felony.
   We conclude that the respondent, as an alien who has been
convicted of an aggravated felony, has been convicted of a particularly
serious crime, and therefore, constitutes a danger to the community of
the United States within the meaning of section 243(h)(2)(B) of the
Act. He is ineligible for withholding of deportation. Section 243(h)(2)
of the Act; see also 

(c)(2)(ii) (1991); Matter of U-M-,
supra; Matter of Carballe, supra. The respondent's emphasis on appeal
concerning the underlying merits of his persecution claim and the
allegedly small amount of controlled substance involved in his

                                  425
Interim Decision #3163

convictions is therefore not relevant. The statutory bar to withholding
of deportation based on conviction of a particularly serious crime
relates only to the nature of the crime and does not vary with the
nature of the evidence of persecution. Ramirez-Ramos v. INS, supra, at
1397-98; Matter of Garcia-Garrocho, supra, at 424 25; Matter of
                                                        -


Rodriguez-Coto, supra, at 209-10. Furthermore, the language of section
515(a)(2) of the Immigration Act of 1990, amending section 243(h)(2)
of the Act, reflects no distinction based on the relative severity of an
aggravated felony.
   Accordingly, the interlocutory appeal of the Immigration and
Naturalization Service will be sustained.
   ORDER:          The appeal is sustained, and the record is remanded
to the immigration judge for further proceedings consistent with the
foregoing decision.




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