B

                                                              Interim Decision #3164




                                MATTER OF B-
                            In Exclusion Proceedings
                                     A-22774284
                    Decided by Board November 19, 1991

(1) The filing with an immigration judge of an application for asylum in exclusion or
  deportation proceedings is not a continuation or a mere updating of an application
  previously filed with the Immigration and Naturalization Service but is, in effect, a
  new application.
(2) Although the applicant in exclusion proceedings had previously filed an asylum
  application with the Service in 1980 under the interim asylum regulations, the filing of
  the application with the immigration judge on April 22, 1991, brings it within the
  purview of the present asylum regulations at 

 (1991).
(3) The applicant in exclusion proceedings has been convicted of a particularly serious
  crime, i.e., aggravated battery, and, therefore, by operation of law, he is ineligible for
  asylum pursuant to 

(c)(1) (1991) and for withholding of exclusion
  and deportation under section 743(h)(7)(11) of the Immigration and Nationality Act.
  U.S.C. § 1253(h)(2)(B) (Supp. 11 1990).

EXCLUDABLE: Act of 1952—Sec. 212(a)(9) [

(a)(9)]—Crime involving
                          moral turpitude
                                 Sec. 212(a)(20) (

(a)(20)]—No valid
                                   immigrant visa
ON BEHALF OF APPLICANT:                                ON BEHALF OF SERVICE:
   Pro se                                                 Kenneth S. Hurewitz
                                                          General Attorney
BY: Milhollau, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members



   In a decision dated June 25, 1991, an immigration judge found the
applicant excludable as alleged under section 212(a)(9) of the Immigration and Nationality Act, 

(a)(9) (1988),' for conviction
of a crime involving moral turpitude, and under section 212(a)(20) of
the Act2 for not having a valid immigrant visa. The immigration judge
   Revised and redesignated as section 212(a)(2)(A)(i)(1) of the Act by section 601 of the
Immigration Act of 1990, Pub. L. No. 101 649, 

, 5068 (effective Nov. 29,
1990).
  2 Revised and redesignated as section 212(a)(7)(A)(i)(1) of the Act by section 601 of the
Immigration Act of 1990, 104 Stat. at 5075.
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Interim Decision #3164

denied the applicant's applications for asylum and withholding of
exclusion and deportation under sections 208(a) and 243(h)(1) of the
Act, 

(a) and 1253(h)(1) (1988), and ordered him
excluded and deported from the United States. The applicant has
appealed only from the immigration judge's denial of his request for
asylum and withholding of exclusion and deportation. The appeal will
be dismissed. The request for oral argument is denied. 

(e) (1991).
   The applicant is a 56-year-old native and citizen of Cuba. He came
to the United States in 1980 as part of the Martel boatlift and was
paroled into the United States. He admitted at the hearing that on
August 18, 1988, he was convicted of aggravated battery, possession of
a firearm and being a person engaged in a criminal offense having a
firearm, and was sentenced to 5 years in prison. He also admitted that
he injured someone with a shot from the firearm. The record of
conviction, which the applicant acknowledged related to him, was
admitted into evidence. The applicant's immigration parole was
revoked on February 18. 1989. We find that the applicant is
excludable as alleged. The remaining issues on appeal concern the
applicant's eligibility for asylum and withholding of exclusion and
deportation.
   The applicant originally filed a Request for Asylum in the United
States (Form 1-589) with the Immigration and Naturalization Service
on June 18, 1980.3 At the hearing before the immigration judge on
April 22, 1991, the applicant stated that he wanted to renew the
asylum application he had previously filed. The Service attorney
handed the asylum application to the immigration judge from the
Service file. A hearing on the merits of the asylum application was held
on June 25, 1991.
   The immigration judge denied the applicant's applications for
asylum and withholding of exclusion and deportation. He found that
the applicant was statutorily ineligible for withholding of deportation
and that he had failed to establish a well-founded fear of persecution
for asylum.
   The applicant contends on appeal that his asylum application was .
not properly filled out by the immigration officer. He asserts that he
did not have counsel at the hearing to help him address all the issues.
   We find that the applicant's applications for asylum and withholding of exclusion and deportation must be denied under the Act and the
present asylum regulations. The applicant's asylum application was
filed with the immigration judge at the hearing on April 22, 1991.
  3 It is unclear from the record of proceedings whether the asylum application filed with
the Service was denied or was never adjudicated.

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Even though the applicant had previously filed an application with the
Service in 1980 under the interim asylum regulations published on
June 2, 1980, see 

 (1980), we find that the filing of
the asylum application with the immigration judge on April 22, 1991,
brings it within the purview of the present asylum regulations at 

 (1991).
   Some important background information was given in the supplementary information to the present asylum regulations published in
the Federal Register. 

 (1990). It was stated that the
interim regulations "were intended only to provide a temporary
regulatory mechanism for adjudicating claims pending publication of
permanent procedures following a period of deliberate study and
analysis." 

 (emphasis added). It was further stated that
"[a]fter an appropriate period of experience under the interim
[regulations], the ... concerned administrative agencies of the United
States Government conducted detailed reviews and discussions of the
asylum process in order to formulate and implement a comprehensive
and uniform asylum policy and procedure." 

   The federal regulations at 

(a) (1991) state: "This
part shall apply to all applications for asylum or withholding of
deportation that are filed on or after October 1, 1990." (Emphasis
added.) See Matter of U-M-, 

 (B1A 1991), affd,

 (9th Cir. 1993). Further, 

(b) (1991)
provides that "Immigration Judges shall have exclusive jurisdiction
over asylum applications filed by an alien [in exclusion or deportation
proceedings]." (Emphasis added.) In addition, 

(b)
(1991) goes on to state: "The Immigration Judge shall make a
determination on such claims de novo regardless of whether or not a
previous application was filed and adjudicated ... prior to the
initiation of exclusion or deportation proceedings."
   We conclude that because an asylum application was filed with the
immigration judge after October I, 1990, the present asylum regulations apply. As noted above, the present regulations were carefully
formulated based on the experience with the interim regulations and
were intended to provide a new framework for adjudicating asylum
applications. Under these regulations the immigration judges have
exclusive jurisdiction over asylum applications filed in exclusion or
deportation proceedings and are to make a de novo determination of
such applications. We thus find that the filing before an immigration
judge of an asylum application is not a continuation or a mere
updating of the application previously filed with the Service. It is, in
effect, a new application and is to be adjudicated pursuant to the
present federal regulations applicable thereto.
   Section 243(h)(2)(B) of the Act, 

(h)(2)(B) (Supp. II

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 1990), proirides, in pertinent part, that withholding of deportation
shall not apply if an alien, "having been convicted by a final judgment
of a particularly serious crime, constitutes a danger to the community
of the United States." The federal regulations at 

(cX1) (1991) state that an application for asylum shall be
denied if the alien, "having been convicted by a final judgment of a
particularly seriouscrime in the United States, constitutes a danger to
the community."
   It is obvious to this Board that the purpose of the statute and
present asylum regulations is to remove asylum eligibility for an alien
convicted of an aggravated felony or a particularly serious crime. The
present asylum regulations clearly follow this intent. To hold otherwise
would continue to make asylum available to a large number of
criminal aliens—all those who had previously filed an asylum
application with a Service district director prior to October 1, 1990—
for many years to come. This result could not have been intended by
the present asylum regulations.
   Based on our precedent decisions and the facts in this case, we
conclude that the applicant has been convicted of a particularly serious
crime and constitutes a danger to the community. In Matter of
Frentescu, 

 (BIA 1982), modified on other
grounds, Matter of Gonzalez, 

 (BIA 1988), we stated
that in judging the seriousness of a crime, the Board will consider such
factors as the nature of the conviction, the circumstances and
underlying facts of the conviction, the type of sentence imposed, and
most importantly, whether the type and circumstances of the crime
indicate that the alien will be a danger to the community. We went on
to state in Matter of Frentescu, supra, that crimes against persons are
more likely to be categorized as "particularly serious crimes."
   The applicant in the present case has been convicted of, among
other things, aggravated battery. The battery was committed with use
of a firearm. The applicant admitted that the victim was hit with a
bullet from the firearm. He was sentenced to 5 years in prison and has
served over 3 years of that sentence. We conclude that the applicant
herein has been convicted of a particularly serious crime. In Matter of
Carballe, 19 MIN Dec. 357 (BIA 1986), modified on other grounds,
Matter of Gonzalez, supra, we held that once a finding is made that an
alien has been finally convicted of a particularly serious crime, it
necessarily follows that the alien is a danger to the community of the
United States. We thus find, as did the immigration judge, that the
applicant is barred by section 243(h)(2) of the Act from withholding of
exclusion and deportation. We further find that the applicant is
similarly barred from asylum by 

(c)(1) (1991).
   Our conclusion that the applicant's conviction for aggravated
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battery constitutes a "particularly serious crime" is supported by
Congress' characterization of the offense. Section 101(a)(43) of the
Act, 

(a)(43) (Supp. II 1990), states: "The term
'aggravated felony' means ... any crime of violence (as defined in
section 16 of title 18, United States Code ... ) for which the term of
imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years . " 4 The offense of aggravated battery
(for which the applicant was sentenced to 5 years in prison) has as an
element the use, attempted use, or threatened use of physical force
against another person and clearly constitutes a "crime of violence" as
defined in 

 (1988). Under section 243(h)(2) of the Act,
"an alien who has been convicted of an aggravated felony shall be
considered to have committed a particularly serious crime." These
provisions clearly show that Congress' characterization of the offense
of aggravated battery is in consonance with our interpretation. We
note, however, that we are not applying a statutory "aggravated
felony" bar to the applicant's applications for asylum or withholding
of exclusion and deportation.
   Finally, this Board notes that due to the promulgation of the present
asylum regulations, the holding in Arauz v. Rivkind, 

(11th Cir. 1988), which rejected the practice of pretermission of
asylum applications by immigration judges, is no longer applicable to
this case. Both Arauz v. Rivkind and our decision in Matter of
Gonzalez, supra, solely involved the interim regulations. The present
asylum regulations now control asylum applications filed under their
provisions.
   Accordingly, the appeal will be dismissed.
   ORDER:          The appeal is dismissed.




  4 A "crime of violence" is defined in 18 U.S.0 § 16 (1988) as "an offense that has as
an element the use, attempted use, or threatened use of physical force against the person
or property of another."

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