L-S

                                                                  Interim Decision #3386




                             In re L-S-, Respondent

                                Decided April 16, 1999

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


(1) Under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 

8 U.S.C. § 1231

(b)(3)(B)(ii) (Supp. II 1996), a determination whether an alien convicted of an aggra-
vated felony and sentenced to less than 5 years’ imprisonment has been convicted of a “par-
ticularly serious crime,” thus barring the alien from withholding of removal, requires an indi-
vidual examination of the nature of the conviction, the sentence imposed, and the circum-
stances and underlying facts of the conviction. Matter of S-S-, 

22 I&N Dec. 3374

 (BIA 1999);
and Matter of Frentescu, 

18 I&N Dec. 244

 (BIA 1982), followed.

(2) An alien who was convicted of bringing an illegal alien into the United States in violation
of section 274(a)(2)(B)(iii) of the Act, 

8 U.S.C. § 1324

(a)(2)(B)(iii) (1994 & Supp. II 1996),
and sentenced to 31/2 months’ imprisonment has, upon consideration of the nature of the con-
viction and the sentence imposed, as well as the underlying facts and circumstances of the
conviction, not been convicted of a “particularly serious crime” and is eligible to apply for
withholding of removal under section 241(b)(3)(B)(ii) of the Act.

Rudy Cardenas, Jr., Esquire, El Centro, California, for respondent

Daniel Gershator, Assistant District Counsel, for the Immigration and Naturalization Service

Before:   Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HOLMES,
          VILLAGELIU, FILPPU, ROSENBERG, GUENDELSBERGER, GRANT, and
          SCIALABBA, Board Members. Dissenting Opinion: COLE, Board Member,
          joined by VACCA, HEILMAN, HURWITZ, MATHON, and JONES, Board
          Members.

GRANT, Board Member:

     The respondent has timely appealed from the Immigration Judge’s
decision of August 11, 1997, finding him removable and ineligible for
relief. The respondent’s request to prosecute his appeal without prepay-
ment of the appropriate fee is granted. See 

8 C.F.R. § 3.8

(c) (1998). The
appeal will be sustained and the record will be remanded for further pro-
ceedings.



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Interim Decision #3386


                                        I. FACTS

     The respondent is a 36-year-old citizen of Laos. He entered the United
States at age 17 as a refugee. On May 5, 1997, the respondent was convict-
ed of bringing an illegal alien into the United States in violation of section
274(a)(2)(B)(iii) of the Immigration and Nationality Act, 

8 U.S.C. § 1324

(a)(2)(B)(iii) (1994 & Supp. II 1996). On June 9, 1997, the respondent
was sentenced to time served, which had been approximately 31/2 months.
Based on his conviction, the Immigration and Naturalization Service
charged the respondent with inadmissibility pursuant to section
212(a)(6)(E)(i) of the Act, 

8 U.S.C. § 1182

(a)(6)(E)(i) (Supp. II 1996), as
an alien who had encouraged, induced, assisted, abetted, or aided an alien
to enter the United States in violation of law. The Immigration Judge found
the respondent removable as charged and ineligible for all forms of relief.
     On appeal, the respondent argues that the Service did not establish that
he committed a removable offense; that the Service failed to establish that
he knowingly assisted in the illegal entry; that he should have had an oppor-
tunity to apply for cancellation of removal; that after 20 years as a lawful
permanent resident, one conviction leading to 31/2 months in jail should not
result in his removal; that his crime is not an aggravated felony; that he
established eligibility for withholding of removal; and that he should have
been put in exclusion proceedings rather than removal proceedings.


                                        II. ISSUE

    The principal issue in this case is whether the respondent’s conviction
for bringing an illegal alien into the United States in violation of section
274(a)(2)(B)(iii) of the Act, an aggravated felony for which he was sen-
tenced to 31/2 months’ imprisonment, constitutes a particularly serious crime
such that the respondent is excepted from consideration for withholding of
removal under section 241(b)(3)(B)(ii) of the Act, 

8 U.S.C. § 1231

(b)(3)(B)(ii) (Supp. II 1996).1


                          III. PRELIMINARY MATTERS

    The respondent was properly charged with inadmissibility and not
deportability. Generally, an alien lawfully admitted for permanent residence


     1
      Although the Immigration Judge evaluated the respondent’s eligibility for withholding
of deportation, the comparable relief that is available in removal proceedings is termed with-
holding of removal. See 

8 C.F.R. § 208.16

 (1998).

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                                                                 Interim Decision #3386


in the United States is not to be regarded as seeking admission and thus
would be subject to the deportation grounds of section 237 of the Act, 

8 U.S.C. § 1227

 (Supp. II 1996), rather than the provisions of section 212(a).
See section 101(a)(13)(C) of the Act, 

8 U.S.C. § 1101

(a)(13)(C) (Supp. II
1996). As this Board discussed in Matter of Collado, 

21 I&N Dec. 1061

(BIA 1997, 1998), however, section 101(a)(13)(C) of the Act specifically
addresses the treatment of lawful permanent residents who are described in
sections 101(a)(13)(C)(i)-(vi) of the Act. Such aliens are excepted from the
general class of lawful permanent resident aliens who are not regarded as
seeking admission to the United States. The respondent was convicted of
bringing an undocumented alien into the United States. Thus, he engaged in
illegal activity after having departed the United States and is properly
charged with inadmissibility. Section 101(a)(13)(C)(iii) of the Act.
     We do not find that the respondent should have been put in exclusion
proceedings rather than removal proceedings. Congress established removal
proceedings in section 304(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of 

Pub. L. No. 104-208, 110

 Stat. 3009-546, 3009-587 (“IIRIRA”). Those proceedings apply to
cases which are initiated after April 1, 1997. IIRIRA § 309, 110 Stat. at
3009-625. The respondent was served with his Notice to Appear (Form I-
862) on June 12, 1997. Thus, he is properly in removal proceedings.
     Regarding the respondent’s argument that he does not believe the
Service has established that he knowingly assisted in the illegal entry, we
find that no such analysis is necessary to reach the conclusion that the
respondent is inadmissible. The respondent’s conviction for bringing an
illegal alien into the United States in violation of section 274(a) of the Act
renders him inadmissible under section 212(a)(6)(E) of the Act and he is
therefore removable.2 We do not review the underlying circumstances of a
conviction to reassess whether the conviction was appropriate. A conviction
is final for immigration purposes unless and until the conviction has been
overturned. See Matter of Gabryelsky, 

20 I&N Dec. 750, 751-52

 (BIA
1993); see also Aguilera-Enriquez v. INS, 

516 F.2d 565, 571

 (6th Cir. 1975),
cert. denied, 

423 U.S. 1050

 (1976).
     The crime of bringing illegal aliens into the United States in violation
of section 274(a) of the Act is an aggravated felony. See section
101(a)(43)(N) of the Act. Section 101(a)(43)(N) of the Act provides that an
aggravated felony includes
   an offense described in paragraph (1)(A) or (2) of section 274(a) (relating to alien
   smuggling), except in the case of a first offense for which the alien has affirmatively
   shown that the alien committed the offense for the purpose of assisting, abetting, or


     2
      Although the Immigration Judge cited the wrong ground in his decision, he applied the
proper ground.

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Interim Decision #3386

   aiding only the alien’s spouse, child, or parent (and no other individual) to violate a
   provision of this Act.

See Matter of Ruiz, 

22 I&N Dec. 3376

 (BIA 1999). The respondent was
convicted pursuant to section 274(a)(2)(B)(iii) of the Act and there is no
evidence that he committed the offense to aid a spouse, child, or parent.


 IV. ANALYSIS OF PARTICULARLY SERIOUS CRIME EXCEPTION

     The respondent has been convicted under section 274(a)(2)(B)(iii) of
the Act of the crime of bringing an illegal alien into the United States. There
is no doubt of the seriousness of this offense under our immigration laws.
As a consequence of this single conviction, the respondent is inadmissible
to the United States under section 212(a)(6)(E)(i) of the Act and will be
ineligible to be readmitted to the United States at any time if he is ordered
removed. See section 212(a)(9)(A) of the Act. The respondent is also ineli-
gible to apply for asylum. Sections 208(b)(2)(A)(ii), (B)(i) of the Act, 

8 U.S.C. §§ 1158

(b)(2)(A)(ii), (B)(i) (Supp. II 1996). As an alien convicted
of an aggravated felony, the respondent is not eligible for cancellation of
removal under section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3) (Supp.
II 1996). He is also precluded from applying for that relief under section
240A(b)(1)(B) because he cannot establish good moral character during the
10 years prior to application for relief.3 Furthermore, the respondent is inel-
igible for voluntary departure under section 240B(b)(1)(C) of the Act, 8
U.S.C. § 1229c(b)(1)(C) (Supp. II 1996), and for a waiver of inadmissibil-
ity under section 212(h).
     The issue before us, therefore, is not whether this crime is serious or
whether it should result in severe restrictions on the respondent’s ability to
obtain benefits under our immigration laws. Those issues have been settled.
The sole issue before us, rather, is whether this single conviction, with a
sentence imposed of 31/2 months, should be classified as a “particularly seri-
ous crime” under section 241(b)(3)(B) of the Act and thus disqualify the
respondent from seeking to establish that, were he deported to Laos, it is
more likely than not that his life or freedom would be threatened on account
of his race, religion, nationality, political opinion, or membership in a par-
ticular social group. Section 241(b)(3)(A) of the Act; INS v. Cardoza-
Fonseca, 

480 U.S. 421

 (1987).
     Our judgment in this regard is discretionary. Matter of S-S-, 

22 I&N Dec. 3374

 (BIA 1999). In 1996 Congress amended section 241(b)(3)(B) of


     3
       An alien who has been convicted of an aggravated felony cannot establish good moral
character. See section 101(f)(8) of the Act, 

8 U.S.C. § 1101

(f)(8) (1994).


                                            648
                                                                 Interim Decision #3386


the Act to provide that a conviction for an aggravated felony is a “particu-
larly serious crime” if a sentence of 5 years or more has been imposed. IIRI-
RA § 305(a), 110 Stat. at 3009-602. Congress also provided that this did not
prohibit the Attorney General from designating other crimes not meeting
these criteria as particularly serious crimes.4 We have recently decided that
in exercising this discretionary authority, we will apply the analysis set forth
in Matter of Frentescu, 

18 I&N Dec. 244

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

20 I&N Dec. 529

 (BIA 1992), Matter of Gonzalez, 

19 I&N Dec. 682

(BIA 1988). Matter of S-S-, supra. Applying those standards to the facts of
this case, we have determined that the respondent’s conviction is not a con-
viction for a particularly serious crime, and that the case should be remand-
ed to give the respondent an opportunity to apply for relief under section
241(b)(3).

  A. Previous Statutory Framework for Withholding of Deportation

     The statutory provision for withholding of deportation was found at
section 243(h) of the Act, 

8 U.S.C. § 1253

(h) (1994).5 When Congress
enacted the Refugee Act of 1980, 

Pub. L. No. 96-212, 94

 Stat. 102, it
amended this provision to provide that withholding should be denied to an
alien who, “having been convicted by a final judgment of a particularly seri-
ous crime, constitutes a danger to the community of the United States.” See
section 243(h)(2)(B) of the Act.
     The Board addressed the question of what would be a “particularly seri-
ous crime” in Matter of Frentescu, supra. See also Matter of Gonzalez,
supra, modified, Matter of C-, supra. In Matter of Frentescu, the Board held
that in judging the seriousness of a crime, we look to such factors as the
nature of the conviction, the circumstances and underlying facts of the con-
viction, the type of sentence imposed, and, most importantly, whether the
type and circumstances of the crime indicate that the respondent is a danger
to the community. Matter of Frentescu, supra, at 247. Further, we stated that
crimes against persons are more likely to be categorized as particularly seri-
ous, but that there may be instances where crimes against property will be
considered to be particularly serious. Id. It was subsequently established


     4
         The final paragraph of section 241(b)(3)(B) states the following:
   [A]n alien who has been convicted of an aggravated felony (or felonies) for which the
   alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall
   be considered to have committed a particularly serious crime. The previous sentence
   shall not preclude the Attorney General from determining that, notwithstanding the
   length of sentence imposed, an alien has been convicted of a particularly serious crime.
     5
       A more detailed history of withholding of deportation pursuant to section 243(h) of the
Act is set forth in Matter of Q-T-M-T-, 

21 I&N Dec. 639, at 645-47

 (BIA 1996).

                                            649
Interim Decision #3386


that once an alien is found to have committed a particularly serious crime,
there is no need for a separate determination to address whether the alien is
a danger to the community. See Matter of K-, 

20 I&N Dec. 418

 (BIA 1991),
aff’d, Kofa v. INS, 

60 F.3d 1084

 (4th Cir. 1995); see also Matter of Q-T-M-
T-, 

21 I&N Dec. 639, at 646

 (BIA 1996). The Board also determined that
certain crimes could be considered per se particularly serious, and there-
fore, once the conviction was established, there was no need to proceed to
an individualized examination of the crime. See Matter of Frentescu, supra,
at 247; see also Hamama v. INS, 

78 F.3d 233, 240

 (6th Cir. 1996) (recog-
nizing the Board’s practice of finding that some crimes are inherently par-
ticularly serious); Ahmetovic v. INS, 

62 F.3d 48, 52

 (2d Cir. 1995) (uphold-
ing a Board decision which found that first degree manslaughter was an
inherently particularly serious crime).
     Congress amended section 243(h)(2) of the Act through the
Immigration Act of 1990, 

Pub. L. No. 101-649, 104

 Stat. 4978, to provide
that aggravated felonies are to be considered particularly serious crimes for
the purpose of section 243(h)(2). See generally Matter of A-A-, 

20 I&N Dec. 492

 (BIA 1992). This amendment eliminated the need for an individ-
ual analysis of the underlying facts and circumstances in any case in which
the conviction was for an aggravated felony. See Matter of C-, supra (mod-
ifying Matter of Frentescu and its progeny in light of statutory amendment).
     The next major change in the withholding law occurred with the pas-
sage of section 413(f) of the Antiterrorism and Effective Death Penalty Act
of 1996, 

Pub. L. No. 104-132, 110

 Stat. 1214, 1269 (enacted Apr. 24, 1996)
(“AEDPA”). Section 413(f) of the AEDPA amended section 243(h) of the
Act to provide the Attorney General discretionary authority to override the
categorical bar designating every aggravated felony a particularly serious
crime, if she determined it “is necessary to ensure compliance with the 1967
United Nations Protocol Relating to the Status of Refugees.” The Board
considered the effects of this provision on the aggravated felony bar in
Matter of Q-T-M-T-, supra. We concluded that an alien who has been con-
victed of an aggravated felony or felonies and sentenced to at least 5 years
of incarceration was conclusively barred from withholding of deportation.
However, an alien who was convicted of an aggravated felony or felonies
and sentenced to an aggregate of fewer than 5 years of incarceration would
be subject to a rebuttable presumption that he or she had been convicted of
a particularly serious crime, which would bar eligibility from withholding.
The holding in Matter of Q-T-M-T-, supra, continues to apply to cases ini-
tiated before April 1, 1997, which are not controlled by the IIRIRA.

 B. Statutory and Analytic Framework for Withholding of Removal

    Congress’s most recent revision of the “particularly serious crime”
clause in the IIRIRA accomplished what section 413(f) of the AEDPA had

                                    650
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not: it eliminated the categorical exception to withholding of removal for
any alien convicted of an aggravated felony. Conviction of an aggravated
felony no longer renders the conviction a “particularly serious crime” per
se. See Matter of S-S-, supra.
     In Matter of S-S-, we unanimously held that there is no statutory basis
to apply the “rebuttable presumption” analysis of Matter of Q-T-M-T in pro-
ceedings under the new section 240 of the Act. “Congress neither imposed
any presumption that an aggravated felony carrying a sentence of fewer
than 5 years is a particularly serious crime, nor called for any blanket exer-
cise of the Attorney General’s authority to determine the applicability of
section 241(b)(3)(B)(ii) of the Act in such cases.” Matter of S-S-, supra, at
8. Furthermore, in the absence of a rule that every conviction under a cer-
tain category of crimes constitutes a particularly serious crime, considera-
tion of the individual facts and circumstances is appropriate.6 In place of a
“per se” or “presumption” analysis, Matter of S-S- applied the analysis set
forth in Matter of Frentescu, supra, to evaluate whether a crime is “partic-
ularly serious.” We will therefore employ Frentescu in cases, such as this
one, where a determination must be made as to the nature of the crime for
the purpose of applying the exception in section 241(b)(3)(B)(ii) of the Act.7
This inquiry does not involve an examination of the respondent’s family or
community ties, or the risk of persecution in the alien’s native county. See
Ramirez-Ramos v. INS, 

814 F.2d 1394, 1397-98

 (9th Cir. 1987). To make
this determination, we look to the conviction records and sentencing infor-
mation. See Matter of Q-T-M-T-, supra, at 20. Further, we do not engage in
a retrial of the alien’s criminal case or go behind the record of conviction to
redetermine the alien’s innocence or guilt. Id.; cf. Matter of Carballe, 

19 I&N Dec. 357, 360-61

 (BIA 1986) (noting that background information,
including the circumstances of the crime, need not be admitted where a
crime is designated as inherently particularly serious), modified, Matter of
C-, supra, clarified, Matter of K-, supra, modified on other grounds, Matter
of Gonzales, supra.
     In determining that neither a “per se” nor a “presumption” rule is
appropriate in applying the particularly serious crime exception in section
241(b)(3)(B)(ii), we are guided both by clear statements of congressional
intent and by our own assessment of the balance between protecting those
who would be subject to persecution if removed to a particular country, and
protecting the safety of the American public.


     6
       We left for another day the question whether, and under what conditions, it might be
appropriate for the Attorney General to exercise discretion to designate certain offenses as
being particularly serious crimes per se.
     7
       This test would apply to aggravated felonies where the sentence is fewer than 5 years,
as well as to other crimes that do not fall within the aggravated felony definition.

                                            651
Interim Decision #3386


     First, in designating those alien criminals excluded from the protection
of asylum and withholding of removal, Congress has drawn a critical dis-
tinction in its use of the term “particularly serious crime.” In the context of
asylum, the following per se rule applies: Any alien convicted of a “partic-
ularly serious crime” is barred from being granted asylum under section
208(b)(2)(A)(ii) of the Act, and any alien convicted of an aggravated felony
is considered to have been convicted of a “particularly serious crime.”
Section 208(b)(2)(B)(i) of the Act. In the context of relief under section
241(b)(3), however, a different per se rule applies: An alien convicted of an
aggravated felony is considered to have been convicted of a particularly
serious crime only if the alien was sentenced to a term of imprisonment of
5 years or more. Therefore, to adopt in this case a per se rule that any con-
viction for alien smuggling, regardless of the sentence and underlying cir-
cumstances, constitutes a conviction for a “particularly serious crime”
under section 241(b)(3)(B)(ii) would be to annul the deliberate distinction
made by Congress in the IIRIRA. To adopt a “presumption” that such
offenses are particularly serious crimes unless proven otherwise would
merely obscure the distinction and lead to results most often indistinguish-
able from the application of a flat-out per se rule—most aliens would not be
able to meet the high burden of proof to rebut the presumption that their
aggravated felony conviction is not for a “particularly serious crime.”
     Second, Congress deliberately eliminated the statutory presumption
that all aggravated felonies are particularly serious crimes for purposes of
the withholding provision, and that provision only. This is particularly
notable in light of the numerous provisions found in the IIRIRA increasing
the severity of the consequences for aliens convicted of crimes. See, e.g.,
IIRIRA §§ 321(e), 110 Stat. at 3009-627 (codified as section 101(a)(43) of
the Act and expanding the definition of an aggravated felony); 304(b), 110
Stat. at 3009-597 (repealing a provision permitting waiver of inadmissibil-
ity under section 212(c) of the Act, 

8 U.S.C. § 1182

(c) (1994)); 303, 110
Stat. at 3009-585 (codified as section 236(c) of the Act, which relates to the
mandatory detention of criminal aliens); 301(b), 110 Stat. at 3009-576
(codified as section 212(a)(9)(A)(i) of the Act, which provides that aliens
convicted of an aggravated felony and previously removed under section
235(b)(1) of the Act, 

8 U.S.C. § 1225

(b)(1) (Supp. II 1996), or at the end of
proceedings under section 240 of the Act, 8 U.S.C. § 1229a (Supp. II 1996),
are permanently inadmissible). The reason for this different approach is
clear: Congress understood that in enacting revised section 241(b)(3), it was
carrying forth the statutory implementation, previously codified in former
section 243(h), of our international treaty obligations. See INS v. Cardoza-
Fonseca, 

480 U.S. 421, 428-37

 (1987).
     In 1968, the United States acceded to the 1967 Protocol, agreeing to
apply Articles 2 through 34 of the 1951 Convention regarding the status of
refugees. See United Nations Protocol Relating to the Status of Refugees,

                                     652
                                                      Interim Decision #3386


opened for signature Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606
U.N.T.S. 267 (entered into force Oct. 4, 1967; for United States Nov. 1
1968) (“Protocol”); United Nations Convention Relating to the Status of
Refugees, adopted July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr.
22, 1954) (“Convention”). The Refugee Act of 1980 substituted the manda-
tory language of the former withholding statute for what was previously a
grant of discretionary authority to the Attorney General to withhold depor-
tation. INS v. Stevic, 

467 U.S. 407

 (1984). By amending in the IIRIRA the
standards under which this relief may be made available, Congress has fur-
ther clarified its understanding of our nation’s obligations under the
Protocol. Specifically, Congress has determined that the absolute bars to
many forms of relief now contained in the Act for aliens convicted of an
aggravated felony are not appropriate in the context of withholding relief
because if such bars were so applied, they could threaten our compliance
with the 1967 Protocol.
     Third, as we did in Matter of Q-T-M-T-, supra, we take into account our
own analysis of these obligations, as weighed against the interests of pro-
tecting the American public. Id. at 19-22. Here, it is important to note that
Congress has left residuary authority with the Attorney General to designate
crimes other than those which meet the per se standard of section
241(b)(3)(B)(ii) as “particularly serious crimes.” The dissent argues that a
broad designation of crimes such as alien smuggling as “particularly seri-
ous crimes” is essential to protect the law-abiding public from the dangers
inherent in such crimes. In taking this position, however, the dissent gives
insufficient weight to our obligations under the Protocol, as well as the
other provisions of the Act that send an indisputable message that criminal
activity of this type is not tolerated.
     The Act “protects” the public from those convicted of aggravated
felonies in myriad ways already noted in this decision: such aliens are inel-
igible for asylum, cancellation of removal, reentry after removal, and most
waivers of grounds for removal. A decision to allow such an alien to apply
for withholding of removal under section 241(b)(3) in no way ensures that
the alien will be permitted to remain in the United States; the alien’s burden
of proof for this relief is significantly higher than that for asylum. See INS
v. 

Cardoza-Fonseca, supra;

 INS v. 

Stevic, supra;

 Matter of Toboso-Alfonso,

20 I&N Dec. 819

 (BIA 1990); Matter of Mogharrabi, 

19 I&N Dec. 439

(BIA 1987). On a purely statistical basis, most such aliens will, in the end,
be ordered removed. More important, however, is that those who are grant-
ed this relief will be protected from the probability of being arrested, tor-
tured, or even killed if returned to their country of origin.
     A determination that a crime is “particularly serious” cannot, therefore,
be made in a vacuum. It must take into account that an alien convicted of
such a crime, and therefore excluded from applying for relief under section
241(b)(3), could be an alien who would otherwise meet the burden of proof

                                     653
Interim Decision #3386


for this relief and thus would be subject to persecution when removed from
the United States. A grant of relief merely prevents removal to the country
where this threat exists; the alien may be removed to another country or, in
the case of changed conditions in the designated country, may see his relief
withdrawn. 

8 C.F.R. § 208.22

 (1998). Thus, allowing an alien whose
offense does not meet the per se rule of section 241(b)(3)(B)(ii) to merely
apply for withholding of removal will preserve the balance between uphold-
ing our international obligations under the Protocol and protecting the safe-
ty of the public. Denying that opportunity, on the other hand, poses a seri-
ous risk to that balance.

       C. Analysis of the Respondent’s Offense as a Particularly
         Serious Crime Under Section 241(b)(B)(ii) of the Act

    The respondent was convicted, upon a plea of guilty, of bringing an ille-
gal alien into the United States in violation of section 274(a)(2)(B)(iii) of
the Act. That section provides for a fine and imprisonment of not more than
10 years of any person who

  knowing or in reckless disregard of the fact that an alien has not received prior official
  authorization to come to, enter, or reside in the United States, brings to or attempts to
  bring to the United States in any manner whatsoever, such alien, regardless of any offi-
  cial action which may later be taken with respect to such alien . . . [if] the alien is not
  upon arrival immediately brought and presented to an appropriate immigration officer
  at a designated port of entry.

     According to the sentence summary chart, the respondent did not have
any prior offenses and received a downward adjustment of his sentence for
acceptance of responsibility. The Government recommended that he receive
time served with 3 years of supervised release, and the sentencing judge
accepted the recommendation. At the time of sentencing on June 9, 1997,
the respondent had served approximately 31/2 months in prison.
     The record reflects that on February 17, 1997, the respondent and a
codefendant were attempting to enter the United States through the San
Ysidro port of entry when an immigration officer discovered a hidden com-
partment built underneath the floor of their van. Upon inspection of the
compartment, the officer discovered a woman in the compartment. When
questioned, the woman stated that she was a Mexican citizen without law-
ful status to enter or live in the United States. The woman indicated that her
daughter had paid $1,000 to have her smuggled into the United States,
although it is not known whom she paid. According to plan, the Mexican
woman waited at the Tijuana airport until the respondent approached her
and asked for her name. The respondent then led the woman to his van and
instructed her to ride inside the hidden compartment.
     Alien smuggling is a persistent and serious problem in the United

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States. The act of smuggling can put aliens in significant danger, and in cer-
tain circumstances evidently not present here, it can also endanger the lives
of United States residents. The Immigration and Nationality Act designates
alien smuggling as both an aggravated felony and a crime for which a first
offense can lead to 10 years of imprisonment. We consider that length of
imprisonment to be significant and indicative of the seriousness with which
Congress regards alien smuggling.
     We note, however, that the provisions under which this respondent was
convicted and sentenced do not require proof of any endangerment, harm,
or intended harm. To be convicted under section 274(a)(2)(B)(iii), the
defendant only needs to bring an alien into the United States. The intent of
the defendant and whether his or her purpose is lawful or unlawful is not
relevant to the question of guilt. Had serious bodily injury, jeopardy to
human life, or an actual death been involved in this case however, the
respondent would have been subject to sentencing under the provisions of
sections 274(a)(1)(B)(iii) or (iv) of the Act, which provide for significantly
enhanced penalties.
     We are aware that the respondent entered into the smuggling activity
for the purpose of commercial gain. Prior to the enactment of the IIRIRA,
the aggravated felony definition included only those smuggling offenses
under section 274(a)(1) that were committed “for the purpose of commer-
cial advantage.” Section 101(a)(43)(N) of the Act, 

8 U.S.C. § 1101

(a)(43)(N) (1994). This component of the definition was removed by
the IIRIRA, however, so we do not find that the commercial gain aspect of
this case is dispositive. It is, rather, one of the factors to consider.
     Furthermore, we have previously discussed the nature of the crime of
smuggling aliens for gain in the context of deciding whether that offense is
a crime involving moral turpitude. Matter of Tiwari, 

19 I&N Dec. 875

 (BIA
1989). In Matter of Tiwari, we considered whether alien smuggling for gain
is committed with “fraud or evil intent.” A review of precedent cases
revealed that persons convicted under former section 274(a) for bringing
aliens into the United States or for transporting them within the country had
been motivated by love, charity, or kindness or by religious principles. 

Id.

(citing United States v. Merkt, 

794 F.2d 950

 (5th Cir. 1986), cert. denied,

480 U.S. 946

 (1987); Gallegos v. Hoy, 

262 F.2d 665

 (9th Cir. 1958), cert.
denied, 

360 U.S. 935

 (1959)). We could not conclude that the entire class
of persons convicted under former section 274(a) acted with evil intent or
fraud. Our decision in Tiwari that a conviction under section 274(a) is not
necessarily a conviction for a crime involving moral turpitude should lead
us to exercise great caution in designating such an offense as a particularly
serious crime for purposes of section 241(b)(3)(B)(ii).
     The sentence imposed in this case—time served, amounting to 31/2
months in prison—further influences our decision that the conviction in the
respondent’s case is not a particularly serious crime. We also find it signif-

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Interim Decision #3386


icant that there is no indication the respondent intended to harm the smug-
gled alien. Although the use of the hidden compartment did pose a risk to
the alien, particularly in the event of a vehicular accident, the respondent
did not, in fact, cause her harm. Furthermore, the lone alien smuggled in
this case was neither kidnaped nor brought into the United States as part of
an organized criminal enterprise to work illegally in substandard condi-
tions. Rather, she made the arrangements with her family and willingly
undertook the trip for purposes of family unification. While the owner of the
van may have intended to bring other aliens into the country through the use
of his “hidden compartment,” the respondent did not own the van and only
was hired to drive it on this one occasion. The record demonstrates that this
was his first offense.
     In sum, we find that the nature of the offense, the length of the sentence
imposed on the respondent, and the circumstances under which this partic-
ular crime occurred do not support the conclusion that the respondent was
convicted under section 274(a)(2)(B)(iii) of the Act of a particularly serious
crime within the meaning of section 241(b)(3)(B)(ii). See Matter of
Frentescu, supra. The respondent is therefore eligible to present evidence
that he has a clear probability of future persecution pursuant to section
241(b)(3). We emphasize that we reach this conclusion based on the nature
and circumstances of this respondent’s conviction. We also note that this
decision does not confer any form of relief on the respondent; it merely per-
mits him to apply for relief.


                             V. CONCLUSION

     The respondent’s alien smuggling offense is not a particularly serious
crime within the meaning of section 241(b)(3)(B)(ii) of the Act.
Accordingly, his appeal will be sustained and the record will be remanded
to the Immigration Judge to permit the respondent to apply for withholding
of removal.
     ORDER: The appeal is sustained.
     FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with this opinion and for the entry
of a new decision.

Board Member Anthony C. Moscato did not participate in the decision in
this case.

DISSENTING OPINION: Patricia A. Cole, Board Member, in which Fred
W. Vacca, Michael J. Heilman, Gerald S. Hurwitz, Lauren R. Mathon, and
Philemina M. Jones, Board Members, joined


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     I respectfully dissent. I dissent only from the majority’s finding that the
crime of which the respondent was convicted, bringing an illegal alien into
the United States in violation of section 274(a)(2)(B)(iii) of the
Immigration and Nationality Act, 

8 U.S.C. § 1324

(a)(2)(B)(iii) (1994 &
Supp. II 1996), does not constitute a particularly serious crime pursuant to
section 241(b)(3)(B)(ii) of the Act, 

8 U.S.C. § 1231

(b)(3)(B)(ii) (Supp. II
1996). I would find the nature and circumstances of this crime to constitute
a particularly serious crime within the meaning of section 241(b)(3)(B)(ii)
of the Act.
     I would apply the same analytical framework as the majority and look
to the nature of the conviction, the circumstances and underlying facts of
the conviction, the type of sentence imposed, and whether the type and
circumstances of the crime indicate that the respondent is a danger to the
community. See Matter of Frentescu, 

18 I&N Dec. 244

 (BIA 1982), mod-
ified, Matter of C-, 

20 I&N Dec. 529

 (BIA 1992), Matter of Gonzalez, 

19 I&N Dec. 682

 (BIA 1988); see also Matter of S-S-, 

22 I&N Dec. 3374

(BIA 1999). I also emphasize that I am not making a finding that all con-
victions for bringing illegal aliens into the United States are per se partic-
ularly serious crimes. I dissent only from the result reached by the major-
ity in this case.
     The majority’s analysis recognizes the serious nature of the crime. The
respondent was convicted of bringing an alien into the United States “know-
ing or in reckless disregard of the fact that an alien has not received prior
official authorization to come to, enter, or reside in the United States.”
Section 274(a)(2) of the Act. The majority also acknowledges the immigra-
tion consequences that Congress mandates for an aggravated felony con-
viction. The respondent is removable from the United States and the respon-
dent’s conviction is a statutory bar to most forms of relief from removal,
i.e., cancellation of removal, asylum, and voluntary departure, and the
respondent is ineligible for readmission to the United States and for a waiv-
er of inadmissibility. I agree with the majority that alien smuggling is a per-
sistent and serious problem faced by the United States. The United States
expends tremendous resources to combat alien smuggling. Smuggling oper-
ations cause untold misery to the population in the form of high-speed chas-
es, high-risk crossings that lead to injury and in extreme cases death, and
high crime along the border areas.
     The nature of this smuggling crime requires the specific intent that
the defendant knew the alien being smuggled had not received prior offi-
cial authorization to enter the United States. The statute authorizes
imprisonment for a violation of this section of up to 10 years. This is a
significant period of time; it signals Congress’ intent to treat alien smug-
gling as a serious crime. I note further that Congress designated this
offense an aggravated felony regardless of the sentence imposed. See sec-


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Interim Decision #3386


tion 101(a)(43)(N) of the Act, 

8 U.S.C. § 1101

(a)(43)(N) (Supp. II 1996).
     The majority’s reliance on Matter of Tiwari, 

19 I&N Dec. 875

 (BIA
1989), is misplaced. In that decision we found only that we could not con-
clude that the entire class of persons convicted under former section 274(a)
acted with evil intent or fraud. Therefore, a conviction for alien smuggling
would not render the alien deportable under section 241(a)(4) of the Act, 

8 U.S.C. § 1251

(a)(4) (1988), as an alien convicted of a crime involving
moral turpitude. However, we noted that aliens who have smuggled other
aliens “for gain” would arguably be deportable as aliens “convicted of
crimes involving moral turpitude.” Our analysis under Matter of Frentescu
permits scrutiny of each crime and would permit consideration of whether
an alien is motivated by commercial gain and fraud, as here, or by love,
charity, kindness, or religious principles, as distinguished in Tiwari.
     The circumstances of this crime highlight some of the troubling aspects
of alien smuggling. The respondent’s testimony demonstrates that he was
part of an organized smuggling operation. This respondent was paid to
bring the undocumented woman into the United States. He did not know the
woman in the van. He brought the alien in using a van especially outfitted
for the journey. The woman was kept in a small, confined compartment
slung underneath the van. She was shut in that dark, confined space with no
idea of how long she would have to stay there without fresh air, water, or
food. Due to the makeshift aspect of the compartment and its location on
the floor of the van, this woman was at a heightened risk of asphyxiation or
injury in the event of an accident brought about by a traffic collision or by
a flight from authorities.
     I am not swayed by the argument that the driver did not intend to harm
the alien and she was not harmed. If bodily injury, jeopardy to life, or actu-
al death occurred, the respondent would have been subject to enhanced sen-
tencing penalties. In fact, had actual harm occurred, the respondent likely
would have been charged with another offense. While I agree that the pro-
vision under which the respondent was convicted does not require proof of
any endangerment, harm, or intended harm, the nature and circumstances of
this crime that the respondent committed placed the smuggled woman’s life
in danger. Although the respondent testified that this was his first time
engaging in smuggling activity, we agree with the Immigration Judge that
the respondent’s credibility in this regard was called into question when he
equivocated about whether he knew that his actions were illegal at the time
he performed them.8
     While the sentence actually imposed, 31/2 months, time served, was not


     8
      The respondent conceded that the act was very serious and said that he did not know
what the term “smuggling” meant until he got caught. He said that he knew the smuggling
was illegal when he did it.

                                          658
                                                       Interim Decision #3386


significant, the commercial aspect, the ties to an organized group, and the
inherent dangers raise this crime to the level of a particularly serious crime.
In revising section 243(h)(2) of the Act, 

8 U.S.C. § 1253

(h) (1994),
Congress specifically reserved authority for the Attorney General to desig-
nate crimes with an aggregate term of imprisonment of less than 5 years to
be particularly serious crimes. I would find that this is one instance where
that authority should be exercised.




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