L-S-J

                                                                      Interim Decision #3322




                              In re L-S-J-, Applicant

                                 Decided July 29, 1997

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) An asylum applicant who has been convicted of robbery with a deadly weapon (handgun)
  and sentenced to 2 ½ years in prison is not eligible for asylum because he has been convicted
  of an aggravated felony, that is, a crime of violence for which the sentence is at least 1 year.
(2) An applicant for withholding of deportation who has been convicted of robbery with a
  deadly weapon (handgun) has been convicted of a particularly serious crime and is not eligible for withholding of deportation regardless of the length of his sentence.

Pro se

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Douglas G. Clancy,
Assistant District Counsel

BEFORE: Board Panel: DUNNE, Vice Chairman; VACCA and VILLAGELIU, Board
Members.

DUNNE, Vice Chairman:

   In a decision dated August 21, 1996, an Immigration Judge found the
applicant excludable under sections 212(a)(2)(A)(i)(I), (A)(i)(II), and
(7)(A)(i)(I), of the Immigration and Nationality Act, 

(a)
(2)(A)(i)(I), (A)(i)(II), and (7)(A)(i)(II) (1994), pretermitted his applications
for asylum and withholding of deportation to Haiti under sections 208 and
243(h) of the Act, 

 and 1253(h) (1994), and ordered him
excluded and deported from the United States. The applicant has appealed
from that decision. The appeal will be dismissed.
   The applicant is a 26-year-old native and citizen of Haiti. He arrived in the
United States on March 30, 1992, and was paroled into the country. His
parole was revoked by the district director on June 5, 1996. The record establishes that the applicant was convicted on November 8, 1995, in the Circuit
Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, of
robbery with a deadly weapon. In this case, the applicant committed a robbery using a handgun. He stole over $600 from several people in an apartment using the gun to threaten them. He was sentenced to serve 2 ½ years in
prison. The applicant also pled nolo contendere on July 17, 1995, in the

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Circuit Court of the Eleventh Judicial Circuit, in and for Dade County,
Florida, to sale, purchase, or delivery of cocaine, and possession of cocaine.
Adjudication of guilt was withheld and he was sentenced to time served, 2
days in prison.
   The applicant’s crime is now considered an aggravated felony under the
revised definition at section 101(a)(43)(F) of the Act, because he has committed a crime of violence for which the term of imprisonment is at least 1
year. Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of 

(a)(3), 

-546,
3009-627 (“IIRIRA”) (to be codified at 

(a)(43)(F) of the
Act). See generally United States v. Gonzalez-Lopez, 

 (11th Cir.
1990), cert. denied, 

 (1991) (defining a crime of violence). This
revised definition applies to the pending case. IIRIRA § 321(c), 110 Stat. at
3009-628; see also Matter of A-A-, 

 (BIA 1992); Matter of
U-M-, 

 (BIA 1991), aff’d, 

 (9th Cir. 1993),
modified, Matter of C-, 

 (BIA 1992). Under section 208(d)
of the Act (now sections 208(b)(2)(A)(ii) and (B)(i) of the Act pursuant to
section 604(a) of the IIRIRA, 110 Stat. at 3009-690 (to be codified at

(b)(2)(A)(ii) and (B)(i) (effective Apr. 1, 1997)), the applicant may not apply for or be granted asylum because of his conviction for an
aggravated felony. See Matter of A-A-, supra.
   The applicant argues that it would be unconstitutional, a violation of the
Fifth and Eighth Amendments, to exclude him without considering his application for asylum. We are without authority to declare our governing statute
unconstitutional, so we cannot consider the argument that the revised Act
violates due process or constitutes cruel and unusual punishment. See Matter
of Hernandez-Puente, 

 (BIA 1991); Matter of Patel, 

 (BIA 1988); Matter of Valdovinos, 

 (BIA 1982); Matter of Cenatice, 

 (BIA 1977);
Matter of L-, 

 (BIA 1951); see also Matter of Fede, 

 (BIA 1989).
   The Immigration and Nationality Act was revised by section 413(f) of the
Antiterrorism and Effective Death Penalty Act of 1996, 

 Stat. 1214, 1269 (enacted Apr. 24, 1996) (“AEDPA”), which states that
the Attorney General may determine whether discretion to withhold deportation should be exercised in favor of any alien in order to comply with the
United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967,
[1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 26. In the case of an
alien convicted of an aggravated felony but not sentenced to at least 5 years in
prison, the type of crime and the circumstances should be examined to determine whether the alien committed a particularly serious crime. See Matter of
Q-T-M-T-, 

 (BIA 1996). Whether a crime is particularly
serious depends on the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and whether the

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type and circumstances of the crime indicate that the alien will be a danger to
the community. Matter of Frentescu, 

 (BIA 1982), modified,
Matter of C-, supra, Matter of Gonzalez, 

 (BIA 1988). The
applicant was sentenced to less than 5 years in prison; nevertheless, he threatened violence with a handgun against several people and put their lives in
danger in the course of a robbery. We conclude that the applicant, who has
been convicted of robbery with a deadly weapon, has committed a particularly serious crime, and that, therefore, his application for withholding of
deportation was properly pretermitted. See Matter of D-, 

,
828 n.1 (BIA 1994); Matter of Garcia-Garrocho, 

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

 Matter of
Carballe, 

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

   Accordingly, the appeal will be dismissed.
   ORDER:          The appeal is dismissed.




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