Monayong v. INS ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EMMANUEL MONAYONG,
Petitioner,
v.
No. 94-2031
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of the Order of the Immigration and
Naturalization Service.
(A90-682-701)
Argued: November 1, 1995
Decided: January 30, 1996
Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and
MICHAEL, Senior United States District Judge for the Western
District of Virginia, sitting by designation.
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Petition for review denied by unpublished per curiam opinion.
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COUNSEL
ARGUED: Bokwe Godwill Mofor, Silver Spring, Maryland, for Peti-
tioner. Emily Anne Radford, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Respondent. ON BRIEF: Mark C. Walters, Office
of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Emmanuel Charles Monayong challenges a decision of the Board
of Immigration Appeals ("BIA") precluding him from applying for
"withholding from deportation" under the Immigration and Natural-
ization Act ("INA"). Monayong contends that the BIA improperly
ruled that, because he was convicted of an aggravated felony, he is
ineligible for that relief as a matter of law. Monayong's argument is
foreclosed by this court's recent en banc decision in the consolidated
cases of Kofa v. INS and Moreno v. INS , 60 F.3d 1084 (1995). In
Kofa, decided after this appeal was filed, we held that 8 U.S.C.
§ 1253(h)(2)(B), which authorizes withholding from deportation, does
not require a separate determination of dangerousness to the commu-
nity in the case of an aggravated felon. 60 F.3d at 1088. Rather, an
alien convicted of an aggravated felony presents per se a "danger to
the community," and, accordingly, is ineligible for withholding. Id.We therefore affirm the BIA decision denying Monayong withholding
from deportation.
I.
Mr. Monayong, a 24-year-old native and citizen of Cameroon,
came to the United States in 1979 at age eleven as a dependent of a
foreign government official. In 1989, he obtained lawful permanent
resident status. Monayong has lived in the Washington, D.C. area
throughout his thirteen years in this country. His mother, fiancee, four
siblings, and large extended family also live in that area. Monayong
is employed by W.S. Manufacturers, Inc., in Maryland.
On November 12, 1991, Monayong was convicted in Virginia of
distributing cocaine and received a sentence of five years. After serv-
ing less than one year, he was paroled to his family home in Arling-
ton, Virginia. He was later taken into custody by the INS and placed
2
in deportation proceedings. He is currently detained in Oakdale, Loui-
siana.
Monayong alleges that, since 1991, he has participated in activities
deemed subversive by the Cameroon government. The U.S. Depart-
ment of State has documented that Cameroon violates the human
rights of its political opponents. U.S. Department of State, Cameroon
Human Rights Practices, 1994. Monayong never applied for asylum
in the United States because of his status as a lawful permanent resi-
dent.
At his deportation hearing, Monayong sought leave to file for with-
holding from deportation under the Immigration and Naturalization
Act ("INA") § 243(h). The immigration judge denied his application,
concluding that, under 8 U.S.C. § 1253(h)(2)(B), withholding of
deportation is not available to an alien convicted of a "particularly
serious crime." Monayong appealed to the BIA. After initially dis-
missing the appeal as untimely, the BIA affirmed the immigration
judge's decision, holding that Monayong is statutorily precluded from
applying for asylum or withholding of deportation.
Monayong filed his petition for review on August 11, 1994. He
contends that the BIA incorrectly construed the INA to automatically
preclude him, because of his aggravated felony conviction, from
applying for withholding of deportation.
II.
The issue in this case--whether, under the INA, an alien convicted
of an aggravated felony is per se a "danger to the community" and
therefore automatically ineligible for withholding from deportation--
was discussed in detail and resolved by our recent decision in Kofa
v. INS.1 The following discussion provides a brief summary.
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1 By order dated February 10, 1995, we placed this case in abeyance
pending our en banc decision in the consolidated cases of Kofa v. INS,
No. 92-1246, and Moreno v. INS, No. 92-2522. On July 27, 1995, the
court handed down its decision in those two cases.
3
The Refugee Act of 1980 provides two remedies to otherwise
deportable aliens who face persecution in their countries of origin.
The first is asylum. The Act provides that the Attorney General may
grant asylum to aliens who qualify as "refugees."2 Under the Act, a
"refugee" is
any person who is outside any country of such person's
nationality or, in the case of a person having no nationality,
is outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protec-
tion of, that 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.
8 U.S.C. § 1101(a)(42)(A). In 1990, Congress amended the asylum
section to exclude from consideration "[a]n alien who has been con-
victed of an aggravated felony." 8 U.S.C. § 1158(d). The statute
defines "aggravated felony" to include "illicit trafficking in a con-
trolled substance (as defined in section 802 of Title 21), including a
drug trafficking crime (as defined in section 924(c) of Title 18)." 8
U.S.C. § 1101(a)(43)(B). Monayong does not contest that his convic-
tion meets the aggravated felony definition or that he therefore is
barred from applying for asylum.
The second, narrower exception to deportation is withholding.
Withholding protects an alien from forced repatriation to a particular
country but does not preclude deportation elsewhere if he or she
would not face persecution there. Unlike the granting of asylum,
which is left to the discretion of the Attorney General, withholding is
mandatory for aliens who qualify.
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2 "The Attorney General shall establish a procedure for an alien physi-
cally present in the United States or at a land border or port of entry, irre-
spective of such alien's status, to apply for asylum, and the alien may be
granted asylum in the discretion of the Attorney General if the Attorney
General determines that such alien is a refugee within the meaning of
section 1101(a)(42)(A) of this title." 8 U.S.C.§ 1158(a).
4
The Attorney General shall not deport or return any alien
. . . to a country if the Attorney General determines that
such alien's life or freedom would be threatened in such
country on account of race, religion, nationality, member-
ship in a particular social group, or political opinion.
8 U.S.C. § 1253(h)(1).
However, several categories of persons are excluded from with-
holding. One exception excludes 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.
Id. § 1253(h)(2)(B). The Immigration Act of 1990 amended the Act
to specify that "an alien who has been convicted of an aggravated fel-
ony shall be considered to have committed a particularly serious
crime." Immigration Act of 1990, Pub. L. No. 101-649, § 515(a)(2),
104 Stat. 5053 (1990).
The sole question posed in Kofa was how to interpret the exclusion
under § 1253(h)(2)(B). Under one reading of the statute, an alien con-
victed of a "particularly serious crime" is ipso facto a danger to the
community and thus excluded from the withholding provision. This
is a one-step analysis: If an alien has been convicted of a particularly
serious crime, he or she is ineligible for withholding. Under a second
reading, an inquiry must be made into whether an alien constitutes a
"danger to the community," but only aliens who have been convicted
of a particularly serious crime are subject to that inquiry. This second
approach involves a two-step inquiry: First, has the alien been con-
victed of a particularly serious crime? If so, does he or she constitute
a danger to the community?
The BIA has interpreted the Act to mean that an alien who has
been convicted of a particularly serious crime is necessarily a danger
to the community and thus ineligible for withholding of deportation.
See, e.g., Matter of U- M-, Interim Dec. (BIA) 3152, slip op. at 5
5
(June 5, 1991); Matter of Carballe, 19 I. & N. Dec. 357, 360 (1986).
In Kofa, this court joined the Fifth, Seventh, Ninth, Tenth, and Elev-
enth Circuits in adopting the BIA's one-step approach. 60 F.3d at
1088-89. Writing for the court, Judge Widener concluded that the
plain language of the statute states a cause and effect; that is, because
an alien has committed a particularly serious crime, he or she is per
se a danger to the community and is thus not entitled to a separate
inquiry on dangerousness. Id. at 1088. Alternatively, the court held
that, even if the language of the statute is ambiguous, the Board's
interpretation is reasonable and therefore entitled to deference under
the principles of construction established by the Supreme Court in
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 60
F.3d at 1089 (citing 467 U.S. 837, 844 (1984)).
Our decision in Kofa leaves nothing to resolve in this case. Because
we have held that an alien convicted of an aggravated felony is not
entitled to an individual determination of dangerousness, but poses
per se a danger to the community and therefore is ineligible for with-
holding from deportation, we uphold the BIA decision denying
Monayong relief from deportation. The petition for review is there-
fore
DENIED.3
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3 On November 1, 1995, INS submitted a motion for leave to file a sup-
plemental brief out of time. That motion is granted.
6