Yousefi v. INS , 260 F.3d 318 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MOHAMMAD MUSA YOUSEFI, a/k/a
Mohammad M. Yousefi, a/k/a
Mohammad Yousafi, a/k/a
Mohammed Yousefi,
Petitioner,
No. 00-1328
v.
U.S. IMMIGRATION & NATURALIZATION
SERVICE; JOHN ASHCROFT, Attorney
General,
Respondents.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A40-205-788)
Argued: January 22, 2001
Decided: August 8, 2001
Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by published per
curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Judith Leslie Wood, Los Angeles, California, for Peti-
tioner. Linda Sue Wernery, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Respondents. ON BRIEF: Jesse A. Moorman,
Los Angeles, California, for Petitioner. David W. Ogden, Assistant
Attorney General, Kristen Giuffreda Chapman, Senior Litigation
Counsel, Loreto S. Geisse, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Respondents.
_________________________________________________________________
OPINION
PER CURIAM:
Mohammad Musa Yousefi ("Yousefi") filed this petition for review
of an order of the Board of Immigration Appeals ("the Board") con-
cluding that Yousefi was deportable and that he was ineligible for
asylum and withholding of deportation. The Immigration and Natural-
ization Service ("the Service") contends that we do not possess juris-
diction to review Yousefi's petition. We hold that we have
jurisdiction to consider Yousefi's petition. On the merits, we agree
with the Board that Yousefi is deportable; however, in our view, the
Board's decision that Yousefi committed a "particularly serious
crime," rendering him ineligible for asylum and withholding of depor-
tation, was arbitrary and must be set aside. Accordingly, we remand
for further consideration of whether Yousefi was convicted of a par-
ticularly serious crime.
I.
Yousefi, a native of Afghanistan, entered the United States in 1987
as a lawful permanent resident. Less than one year after entering the
United States, Yousefi was arrested for willfully concealing a poncho
belonging to a K-Mart store with the intent to convert it to his own
use, in violation of Virginia law. See Va. Code Ann. § 18.2-103.
Yousefi pled nolo contendere and received a ten-day sentence, which
was suspended.
In 1988, Yousefi was charged in the Superior Court of the District
of Columbia with assault with a dangerous weapon, see 22 D.C. Code
Ann. § 22-502, and assault with intent to kill while armed with a dan-
2
gerous weapon, see D.C. Code Ann. §§ 22-502, 22-3202. He pled
guilty to assault with a dangerous weapon and received a prison sen-
tence of 15 to 45 months, which was suspended, and 15 months pro-
bation. The assault with intent to kill charge was dismissed. The
dangerous weapon charged in the indictment was a rock.
Finally, in December 1989, Yousefi was again charged with will-
fully concealing store merchandise in violation of section 18.2-103 of
the Virginia Code. He pled guilty and received a suspended ten-day
sentence.
In June 1991, based on these three convictions, the Service issued
an order to show cause seeking to deport Yousefi under what was
then section 241(a)(2)(A)(ii) of the Immigration and Nationality Act
(INA), see 8 U.S.C. § 1251(a)(2)(A)(ii) (Supp. IV 1992), for having
been convicted of two crimes of moral turpitude not arising from the
same scheme of criminal conduct, and section 241(a)(2)(A)(i), see 8
U.S.C. § 1251(a)(2)(A)(i) (Supp. IV 1992), for having been convicted
of a crime of moral turpitude within five years after entry and sen-
tenced to confinement for a year or more.1 1
Before the immigration judge, Yousefi admitted the underlying
crimes but denied deportability on the basis that the crimes were not
crimes of moral turpitude because they were petty in scope and
nature. The immigration judge disagreed with Yousefi, and concluded
that all three crimes qualified as crimes of moral turpitude. Yousefi
then petitioned the immigration judge for relief from deportation. He
sought asylum under INA § 208(a) and withholding of deportation
under INA § 243(h)(1).2 2 The immigration judge concluded that
_________________________________________________________________
1 The INA was revamped in 1996 by the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-
208, 110 Stat. 3009-546 (1996). Under IIRIRA, INA§ 241(a)(2)(A), for-
merly codified at 8 U.S.C. § 1251(a)(2)(A), was generally left intact but
it was redesignated as INA § 237(a)(2)(A) and codified in 8 U.S.C.A.
§ 1227(a)(2)(A) (West 1999). See IIRIRA § 305(a)(2). Because Yousefi
was in deportation proceedings prior to April 1, 1997, the effective date
of IIRIRA, we apply the pre-amendment version of INA§ 241. See
IIRIRA §§ 309(a), (c)(1).
2 IIRIRA § 604 substantially amended asylum procedures under INA
§ 208; however, because Yousefi applied for asylum prior to the enact-
3
Yousefi was statutorily ineligible for withholding of deportation
because the conviction for assault with a dangerous weapon amounted
to a "particularly serious crime." See INA § 243(h)(2)(B), 8 U.S.C.
§ 1253(h)(2)(B). And, the immigration judge ultimately determined
that Yousefi was ineligible for asylum under the regulations accompa-
nying the INA. See 8 C.F.R. § 208.14(c) (1992).
On appeal to the Board, Yousefi challenged the immigration
judge's conclusion that he was ineligible for asylum and withholding
of deportation as well as the determination that he was deportable in
the first place. The Board agreed with the immigration judge that all
three underlying convictions were for crimes of moral turpitude and
that Yousefi was therefore deportable under INA§ 241(a)(2)(A)(i)
and INA § 241(a)(2)(A)(ii). The Board rejected the argument that the
concealment convictions were too petty to constitute crimes of moral
turpitude, noting that "both the courts and the Board have historically
held that crimes of theft involve moral turpitude, regardless of the
amount stolen or the sentence imposed." A.R. 4. With respect to
Yousefi's eligibility for asylum or withholding of deportation, the
Board concluded that Yousefi was barred from relief because the con-
viction for assault with a dangerous weapon was a"particularly seri-
ous crime." The Board dismissed Yousefi's appeal.
Yousefi petitions us for review of the Board's decision. He raises
the same arguments he raised below; however, Yousefi makes the
additional argument that the proceedings before the immigration
judge failed to comport with due process. The Service, however, sug-
gests that under IIRIRA § 309(c)(4)(G), which was enacted after the
immigration judge's 1992 decision but before the Board rendered its
decision in 2000, we lack jurisdiction to entertain the petition for
review. If we do have jurisdiction, the Service contends that the
Board correctly disposed of the merits.
_________________________________________________________________
ment of IIRIRA, we apply the pre-amendment version of INA § 208. See
IIRIRA §§ 309(a), (c)(1). The withholding of deportation provision,
appearing in INA § 243(h) and codified at 8 U.S.C. § 1253(h), was
repealed. See IIRIRA § 307. A similar form of relief is still available,
however, under the current INA § 241(b)(3). See 8 U.S.C.A.
§ 1231(b)(3) (West 1999). Again, we will apply former INA § 243(h)
since Yousefi was in deportation proceedings prior to April 1, 1997. See
IIRIRA §§ 309(a), (c)(1).
4
II.
We first consider the question of subject matter jurisdiction. The
Service contends that IIRIRA § 309(c)(4)(G) strips us of jurisdiction
to review the Board's decision. Section 309(c)(4) of IIRIRA contains
transitional rules for judicial review that apply to aliens who were
involved in deportation proceedings prior to April 1, 1997, and were
issued a final deportation order more than thirty days after September
30, 1996, the date IIRIRA was enacted. These transitional rules apply
to Yousefi, who was placed into deportation proceedings in February
1992 but was not issued a final order until February 28, 2000.
The transitional rules direct that
there shall be no appeal permitted in the case of an alien
who is inadmissible or deportable by reason of having com-
mitted a criminal offense covered in . . . section 241(a)(2)
(A)(iii), (B), (C), or (D) of the Immigration and Nationality
Act (as in effect as of [September 30, 1996]).
IIRIRA § 309(c)(4)(G). The Service insists that Yousefi's conviction
for assault with a dangerous weapon constituted an aggravated felony
under INA § 241(a)(2)(A)(iii). That section provided that "[a]ny alien
who is convicted of an aggravated felony at any time after admission
is deportable." See INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)
(A)(iii) (Supp. IV 1992). Therefore, the Service contends that Yousefi
was "deportable by reason of having committed a criminal offense
covered in . . . section 241(a)(2)(A)(iii)," precluding this court from
exercising jurisdiction over his petition for review.
As we have observed numerous times, "the jurisdictional limitation
under the transitional rules [is] triggered by two jurisdictional facts --
whether the deportee [is] an alien and whether he [has] been con-
victed of an offense enumerated in the statute." Lewis v. INS, 194
F.3d 539, 542 (4th Cir. 1999). Regardless of the eventual outcome of
our jurisdictional analysis, we always have the power to assess
whether such jurisdictional facts are present. See id. ("Because our
jurisdiction turns on the presence, or lack thereof, of these two facts,
we have jurisdiction to review them."). Yousefi is an alien.3
3 The only
_________________________________________________________________
3 Yousefi filed a last-minute motion to be declared a national of the
United States. We conclude the motion is wholly without merit and deny
it.
5
question is whether he is deportable by reason of having committed
an aggravated felony within the meaning of INA § 241(a)(2)(A)(iii).
Before we can address this issue, however, we must first consider
the consequences of the Service's failure to charge Yousefi's com-
mission of an aggravated felony as a legal ground for deporting him.
Although the Service included Yousefi's conviction for assault with
a dangerous weapon in the factual allegations contained in the order
to show cause, the Service did not seek to deport Yousefi on the
ground that he committed an aggravated felony under INA
§ 241(a)(2)(A)(iii). Rather, the Service charged that Yousefi was
deportable because he had committed two or more crimes of moral
turpitude under INA § 241(a)(2)(A)(ii), and that he had committed a
crime of moral turpitude within five years after entry under INA
§ 241(a)(2)(A)(i). Thus, although Yousefi's conviction for assault
with a dangerous weapon was one of the predicate crimes of moral
turpitude, the Service did not raise the aggravated felony ground for
deportability in its order to show cause, in the proceedings before the
immigration judge, or during the appeal to the Board.
The Service takes the position that as long as an alien has been
convicted of a crime covered under IIRIRA § 309(c)(4)(G), then he
"is inadmissible or deportable by reason of" such conviction regard-
less of whether such conviction served as the basis for deportation.
According to the Service, the jurisdiction-stripping effect of IIRIRA
§ 309(c)(4)(G) is triggered simply by an alien's commission of an
aggravated felony at any time after entry into the United States -- the
alien does not ever have to actually be charged by the Service with
committing an aggravated felony.
Yousefi argues that it is fundamentally unfair for him now to be
denied appellate review based on a ground -- the commission of an
aggravated felony -- that was not charged by the Service as a basis
for deporting him. Yousefi never had an opportunity below to chal-
lenge the legal characterization of his assault conviction as an aggra-
vated felony. He suggests that due process requires that he first be
permitted to mount his challenge before the immigration judge.
It is important to recognize that Yousefi's complaint is that the Ser-
vice has asserted a new legal ground for deportation; the factual
6
ground for saying that Yousefi committed an aggravated felony -- the
conviction for assault with a dangerous weapon -- is not new and was
included by the Service in its order to show cause. This distinction is
important because we are generally permitted to"look only to the
offense of conviction itself to determine whether we have jurisdic-
tion" rather than the circumstances surrounding the conviction. Hall
v. INS, 167 F.3d 852, 856 (4th Cir. 1999). Thus, when "a criminal
statute on its face fits the INA's deportability classification, all con-
victions under that statute necessarily render an alien deportable." Id.
Yousefi's conviction is contained in the record; whether it can be
characterized as an aggravated felony under the INA is purely a ques-
tion of law that requires no additional factual development. Yousefi
has certainly had an opportunity in this court to argue against the clas-
sification of his assault offense as an aggravated felony. Accordingly,
we cannot agree with Yousefi that, under the circumstances, due pro-
cess prevents the application of IIRIRA § 309(c)(4)(G) in the present
case. Cf. id. at 856-57 (suggesting that the alien had received "perhaps
more" process than was due where an Article III court, in addition to
an immigration judge and the Board of Immigration Appeals, had
determined that the underlying offense on its face rendered him
deportable).
Nevertheless, we conclude it is the language of IIRIRA
§ 309(c)(4)(G) itself, rather than due process, that precludes the juris-
dictional bar from applying in this case. In our view, Congress
stripped us of jurisdiction only if the alien's aggravated felony was
actually the basis, or one of the bases, of the final order of deporta-
tion. The provision stating that "there shall be no appeal permitted in
the case of an alien who is inadmissible or deportable by reason of
having committed [an enumerated] criminal offense," IIRIRA
§ 309(c)(4)(G), applies to final orders of deportation.4
4 Thus, we read
the text to mean that there shall be no appeal from a final order which
directs that an alien be deported because he committed an aggravated
felony or another offense enumerated in section 309(c)(4)(G).
_________________________________________________________________
4 The first paragraph of section 309(c)(4) makes it clear that the restric-
tion on appellate review applies to "final order[s] of exclusion of depor-
tation . . . entered more than 30 days after the date of the enactment of
[IIRIRA]."
7
The First Circuit Court of Appeals considered a similar
jurisdiction-stripping provision contained in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, and reached the same conclusion we do. See Choeum
v. INS, 129 F.3d 29, 38 (1st Cir. 1997). We find that court's reasoning
persuasive:
According to the INS, for purposes of jurisdiction, aliens
"deportable by reason of" having committed firearms
offenses are not only those aliens who have been ordered
deported for firearms offenses, but also those aliens who
could be deported for that reason. As a matter of statutory
construction, that argument is somewhat illogical: The con-
tested phrase comes from Section 440(a) of AEDPA, a stat-
utory section concerned with final orders of deportation.
The section therefore applies, by its very terms, only to
aliens who have actually been adjudged deportable. It is
therefore highly doubtful that, in that context, Congress
meant "deportable by reason of" to mean, as the INS would
have it, "potentially susceptible to being deported by reason
of. . . ."
Id. at 38; see also Xiong v. INS, 173 F.3d 601, 608 (7th Cir. 1999).
The Service argues that as long as Yousefi committed a crime that
qualifies as an "aggravated felony," judicial review is cut off regard-
less of whether the final order charged Yousefi with deportability
based on his status as an aggravated felon. Like the First Circuit, we
reject the premise of this reading of the statute-- that if an alien is
potentially removable based on one of the crimes enumerated in
IIRIRA § 309(c)(4)(G), then the jurisdictional bar applies. We recog-
nize there is authority to the contrary. See Lopez-Elias v. Reno, 209
F.3d 788, 793 (5th Cir. 2000), cert. denied, 121 S. Ct. 757 (2001);
Abdel-Razek v. INS, 114 F.3d 831, 832 (9th Cir. 1997). However,
these decisions do not explicitly parse the language of the statute.
Accordingly, we are inclined to agree with Choeum. We conclude that
the jurisdictional bar of the transitional rules does not apply in this
case.
8
III.
Turning to the merits of Yousefi's appeal, we first consider Youse-
fi's argument that the Board erroneously concluded that his convic-
tions qualified as crimes of moral turpitude and therefore rendered
him deportable. When reviewing an agency determination, federal
courts accord substantial deference to the agency's interpretation of
the statutes and regulations that it administers. See INS v. Cardoza-
Fonseca, 480 U.S. 421, 448 (1987). Thus, we give"due deference to
the [Board's] interpretation of the deportation statute," Cabral v. INS,
15 F.3d 193, 194 (1st Cir. 1994), provided it is"`based on a permissi-
ble construction of the statute.'" Akindemowo v. INS, 61 F.3d 282,
284 (4th Cir. 1995) (quoting Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837, 843 (1984)). The Chevron
framework provides the appropriate method for analyzing the Board's
determination of what type of conduct involves moral turpitude for
purposes of the INA. See Michel v. INS, 206 F.3d 253, 262 (2d Cir.
2000); Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995); Cabral, 15
F.3d at 194. But see Franklin, 72 F.3d at 575-80 (Bennett, J., dissent-
ing) (noting apparent circuit split). Congress did not define "crime
involving moral turpitude," leaving the phrase to administrative and
judicial interpretation. See Cabral, 15 F.3d at 195. Thus, under Chev-
ron we must defer to the Board's decision provided the interpretation
"is not an unreasonable one." Lewis, 194 F.3d at 544.
We conclude that the Board's determination was reasonable. Since
Yousefi admitted the underlying convictions, our task is simply to
look to the offense of conviction to determine if it qualifies as a
"crime of moral turpitude." The Board decided that all three of
Yousefi's predicate crimes qualified as crimes of moral turpitude.
First, we agree with the Service that Yousefi has technically
waived his argument that the Board erred in its determination that he
is deportable for having committed a crime of moral turpitude within
five years of entry into the United States, namely his conviction for
assault with a dangerous weapon in 1989. Because Yousefi's opening
brief fails to raise a challenge to the Board's conclusion that Youse-
fi's 1989 conviction for assault with a dangerous weapon qualifies as
a crime of moral turpitude, he has abandoned it. See Edwards v. City
of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). The fact that
9
Yousefi pursues this issue in his reply brief does not redeem his fail-
ure to do so in the opening brief. See Cavallo v. Star Enter., 100 F.3d
1150, 1152 n.2 (4th Cir. 1996). On this basis alone, we affirm the
Board's determination that Yousefi was deportable under INA
§ 241(a)(2)(A)(i).
Even if Yousefi had not technically abandoned this argument on
appeal, we would agree with the Board that his conviction for assault
with a dangerous weapon amounted to a crime of moral turpitude
under INA § 241(a)(2)(A)(1). The Board looks to the elements of the
crime rather than to the facts surrounding each crime. See Castle v.
INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (per curiam). Yousefi pled
guilty in the Superior Court for the District of Columbia to assault
with a dangerous weapon in violation of the law of the District of
Columbia. See D.C. Code Ann. § 22-502 ("Every person convicted of
. . . assault with a dangerous weapon, shall be sentenced to imprison-
ment for not more than 10 years."). The elements of this offense
include the elements of simple assault, in addition to the use of a dan-
gerous weapon to commit the assault. See Williamson v. United
States, 445 A.2d 975, 978 (D.C. 1982). A "dangerous weapon" as
contemplated by this statute is one that is likely to produce death or
serious bodily injury. See Powell v. United States, 485 A.2d 596, 601
(D.C. 1984). Assault with a deadly weapon, a closely analogous
offense, is a crime of moral turpitude for deportation purposes. See
Matter of Medina, 15 I & N Dec. 611, 614 (B.I.A. 1976); Matter of
Ptasi, 12 I & N Dec. 790, 791 (B.I.A. 1968); Matter of Goodalle, 12
I & N Dec. 106, 107 (B.I.A. 1967); see also Pichardo v. INS, 104
F.3d 756, 760 (5th Cir. 1997) (recognizing that assault with a deadly
weapon under Pennsylvania law is well-settled as a crime of moral
turpitude). We do not discern an appreciable difference between
assaulting someone with a deadly weapon as opposed to one that is
merely "dangerous" (and therefore likely to produce, at the least, seri-
ous bodily injury) such that one crime involves moral turpitude and
the other does not. Accordingly, we affirm the Board's conclusion
that Yousefi is deportable under INA § 241(a)(2)(A)(i). See 8
U.S.C.A. § 1251(a)(2)(A)(i).5
5
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5 In view of our conclusion, we decline to address the Board's alterna-
tive basis for concluding that Yousefi is deportable-- that he committed
two crimes of moral turpitude not arising from the same scheme of crimi-
nal conduct under INA § 241(a)(2)(A)(ii). See 8 U.S.C. § 1251(a)(2)
(A)(ii). Thus, we need not decide whether Yousefi's convictions for
unlawful concealment were crimes of moral turpitude.
10
IV.
After concluding that Yousefi's predicate crimes involved moral
turpitude and rendered him deportable, the immigration judge deter-
mined that the conviction for assault with a dangerous weapon was
a "particularly serious crime" and that Yousefi was therefore ineligi-
ble for asylum and withholding of deportation. The Board affirmed.
On appeal, Yousefi argues that the Board failed to properly consider
the facts and circumstances underlying his conviction for assault with
a dangerous weapon which, according to Yousefi, make it clear he did
not commit a "particularly serious crime."
Under the pre-IIRIRA statutory regime, a deportable alien could
seek to avoid deportation in two ways. See INS v. Cardoza-Fonseca,
480 U.S. 421, 423 (1987). First, the alien could apply for asylum, see
INA § 208(b), 8 U.S.C. § 1158(b), which the Attorney General could
grant in his or her discretion to an alien who could not or would not
return to his country "because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion." INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Second, if an alien estab-
lished that, if deported, his "life or freedom would be threatened in
such country on account of race, religion, nationality, membership in
a particular social group, or political opinion," the Attorney General
was required to withhold deportation. See INA § 243(h)(1), 8 U.S.C.
§ 1253(h)(1). It was easier for an otherwise deportable alien to estab-
lish eligibility for asylum than for withholding of deportation; how-
ever, once eligibility for relief was established, the Attorney General
could still refuse to grant asylum but could not deny withholding of
deportation. See Osorio v. INS, 18 F.3d 1017, 1021 (2nd Cir. 1994).
Moreover, "[w]hereas withholding only bars deporting an alien to a
particular country or countries, a grant of asylum permits an alien to
remain in the United States and to apply for permanent residency after
one year." INS v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999).
At the time of Yousefi's deportation proceedings, an alien who,
"having been convicted . . . of a particularly serious crime, consti-
tute[d] a danger to the community of the United States," was statu-
torily ineligible for withholding of deportation, see INA
§ 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(b), and was subject to a manda-
11
tory denial of asylum under the federal immigration regulations, see
8 C.F.R. § 208.14(c)(1).6
6 If an alien has been convicted of an offense
that qualifies as a "particularly serious crime," then the alien is neces-
sarily a danger to the community and is ineligible for withholding of
deportation. See Kofa v. INS, 60 F.3d 1084, 1088 (4th Cir. 1995) (en
banc) ("[O]nce the particularly serious crime determination is made,
the alien is ineligible for withholding without a separate finding on
dangerousness.").
The statutes did not define a "particularly serious crime" or list its
attributes. Consequently, the Board in Matter of Frentescu, 18 I. & N.
Dec. 244 (B.I.A. 1982), took care of the ambiguity by establishing
criteria for determining whether a given crime amounts to a "particu-
larly serious" one. The Board began by emphasizing that "the record
in most proceedings will have to be analyzed on a case-by-case
basis." Id. at 247. The Board then listed the factors to be considered
in "judging the seriousness" of a crime: "[1] the nature of the convic-
tion, [2] the circumstances and underlying facts of the conviction, [3]
the type of sentence imposed, and, [4] most importantly, whether the
type and circumstances of the crime indicate that the alien will be a
danger to the community." Id. When the crime is against a person, the
likelihood that the offense will be classified as a"particularly serious
crime" is increased. See id. Moreover, there are crimes that qualify
categorically as "particularly serious crimes." In such cases, there
does not need to be a rigid application of the Frentescu factors. See
Hamama v. INS, 78 F.3d 233, 240 (6th Cir. 1996) (recognizing that
"[t]he [Board] . . . has the prerogative to declare a crime particularly
serious without examining each and every Frentescu factor").
The circumstances in Frentescu and the Board's decision making
process in that case are instructive. The Board considered the follow-
ing: Frentescu, who was an alien, had been convicted of burglary. He
entered a dwelling, but there was no indication that the dwelling was
occupied at the time. There was no evidence that Frentescu was
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6 Under IIRIRA, an alien who commits a "particularly serious crime"
is now statutorily ineligible for asylum, see INA § 208(b)(2)(ii), 8
U.S.C.A. § 1158(b)(2)(ii) (West 1999), as well as for withholding of
deportation (which is now referred to as removal), see INA
§ 241(b)(3)(B)(ii), 8 U.S.C.A. § 1231(b)(3)(B)(ii) (West 1999).
12
armed, nor was there any other indication of an aggravating circum-
stance. Finally, Frentescu was sentenced to time served (three
months) and placed on probation for one year. Frentescu's sentence,
the Board concluded, indicated that the state court judge did not
regard him as a danger to the community. After "considering the
totality of the circumstances . . . concerning [Frentescu's] crime," the
Board concluded that the crime was not particularly serious and that
Frentescu was not precluded from seeking asylum or withholding of
deportation. Id.
Frentescu, decided in 1982, continues to supply the standard for
identifying a particularly serious crime. The standard is applied
through a case-by-case analysis of the circumstances, even when the
name of the crime sounds quite serious. For instance, in In re S-S-,
Interim Decision 3374, 1999 WL 38822 (B.I.A. Jan. 21, 1999), the
Board conducted a case-specific analysis of the circumstances to
determine whether the alien's armed robbery conviction was a partic-
ularly serious crime. The Board reviewed the following information:
The alien and two accomplices, with the alien displaying a handgun,
broke into a home and stole jewelry and purses from two women. One
of the women was taken out of the shower during the robbery, and
her six-year-old child witnessed the events. The prosecutor, based on
information that the alien could be responsible for numerous other
robberies involving the use of violence and firearms, requested bail
at $100,000. Finally, after conviction the alien received a 55-month
sentence and an additional two years in community placement. The
Board concluded that "a robbery offense entailing these circum-
stances" is a particularly serious crime. Id. See also In re L-S-, Interim
Decision 3386, 1999 WL 219344 (B.I.A. Apr. 16, 1999) (crime of
alien smuggling for commercial gain was not particularly serious
because the alien-smuggler had no intention of harming the smuggled
alien, and the alien-smuggler spent only three-and-a-half months in
prison ); In re L-S-J-, 21 I. & N. Dec. 973 (B.I.A. 1997) (crime of
robbery with a deadly weapon was particularly serious because the
alien, wielding a handgun, stole $600 from several people in an apart-
ment and threatened violence against them).
Yousefi contends that the immigration judge and the Board ignored
important elements of the Frentescu standard and failed to conduct an
13
adequate case-specific analysis.77 We cannot defer to an agency deci-
sion that is "arbitrary, capricious, or manifestly contrary to the stat-
ute." See Chevron, 467 U.S. at 844. An agency decision "would be
arbitrary and capricious if the agency has relied on factors which
Congress has not intended it to consider [or has] entirely failed to
consider an important aspect of the problem." Motor Vehicles Mfrs.
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
In this case we are compelled to find the decisions of the Immigra-
tion judge and Board to be arbitrary and capricious. The deportation
proceedings against Yousefi have been plagued by a complete failure
of the decision makers to consider key Frentescu factors. Again, the
four Frentescu factors are: (1) the nature of the conviction, (2) the
type of sentence imposed, (3) the circumstances and underlying facts
of the conviction, and (4) whether the type and circumstances of the
crime indicate that the alien will pose a danger to the community. See
Matter of Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982). The last
two factors are the most important because unless they are consid-
ered, the record has not been "analyzed on a case-by-case basis," as
required by Frentescu. Id. In Yousefi's case the immigration judge
and the Board considered only the first two factors, the nature of his
conviction (guilty of assault with a dangerous weapon) and the sen-
tence imposed (suspended sentence of 15 to 45 months in jail). More-
over, both the immigration judge and the Board considered irrelevant
factors. The immigration judge relied on an indictment count (assault
with intent to kill) that had been dismissed, and the Board relied on
a conviction (for simple assault) that was not alleged in the Service's
order to show cause or in any additional charge. The Frentescu stan-
dard focuses on the crime that the Service claims is particularly seri-
_________________________________________________________________
7 Yousefi alleges that his crime, assault with a dangerous weapon, was
not particularly serious under the circumstances. Yousefi claims that a
competing hotdog vendor threatened Yousefi and ultimately hit him in
the face and bloodied his nose. According to Yousefi, the competing
vendor was charged by the police, and Yousefi offered evidence against
him. A month or so later the other vendor resumed his harassment of
Yousefi, and one day he spit in Yousefi's face. The spitting incident trig-
gered the events that led to Yousefi's conviction for assault with a deadly
weapon. Yousefi maintains, however, that the victim was not hit with a
rock.
14
ous, and the standard does not call for consideration of conduct that
is unrelated to that crime. We can find no authority for the proposition
that dismissed counts or crimes not relied upon by the Service may
be considered in determining whether a specific crime is a particularly
serious one. Cf. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) (bar-
ring the Attorney General from granting asylum or withholding of
deportation to an alien who has been "convicted" of a particularly
serious crime); id. § 1229(a)(1) (requiring "written notice" specifying
the "charges against the alien"); 8 C.F.R. 240.10(e) (allowing the Ser-
vice to lodge additional charges "[a]t any time during the proceeding,"
if they are "in writing" and served upon the alien).
The more significant problem is that the immigration judge and the
Board failed to consider the most important Frentescu factors, specifi-
cally, the circumstances and underlying facts of the conviction and
whether the circumstances of the crime indicate that Yousefi would
be a danger to the community. Because the Board failed to consider
the two most important Frentescu factors and relied on improper con-
siderations, we conclude that the Board's decision was arbitrary and
capricious. See State Farm, 463 U.S. at 43 (explaining that agency
action is arbitrary and capricious if it "entirely fail[s] to consider an
important aspect of the problem").
Thus, we vacate the Board's decision insofar as it determines that
Yousefi committed a particularly serious crime and remand the case
to the Board with the instruction that it, in turn, remand to the immi-
gration judge for reconsideration of the particularly serious crime
issue in accordance with the requirements of Frentescu. If the Board
determines that Yousefi's assault crime was not particularly serious,
that would simply afford him the opportunity to press his case for asy-
lum and withholding of deportation.8 8
_________________________________________________________________
8 In its brief, the Service included a one-line alternative argument that
Yousefi is barred from seeking withholding of deportation or asylum
because his assault conviction qualifies as an aggravated felony. The Ser-
vice did not make this argument to the immigration judge or the Board,
and the argument was not fully developed in the Service's brief. We
decline to address this issue. Cf. Unemployment Comp. Comm'n v. Ara-
gon, 329 U.S. 143, 155 (1946) ("A reviewing court usurps the agency's
function when it sets aside the administrative determination upon a
ground not theretofore presented and deprives the[agency] of an oppor-
tunity to consider the matter, make its ruling, and state the reasons for
its action.").
15
V.
For the foregoing reasons, we hold that we have jurisdiction to con-
sider Yousefi's petition for review, but we vacate the Board's deci-
sion insofar as it determines that Yousefi committed a particularly
serious crime and remand the case to the Board with the instruction
that it, in turn, remand to the immigration judge for reconsideration
of the particularly serious crime issue in accordance with the require-
ments of Frentescu.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
16