FRENTESCU
BIA
Interim Decision #2906
MATTER OF FRENTESCU
In Exclusion Proceedings
A-23364219
Decided by Board June 23, 1982
(1) An alien who has been convicted of a crime involving moral turpitude is not statutorily
ineligible for asylum and withholding of deportation.
(2) Withholding of deportation and asylum are not available to an alien who, having been
convicted by afinal judgment of a "particularly serious crime," constitutes a danger to
the community of the United States.
(0) A 'pox ticularly serious crime" under section 243(h)(2)(B) of the Immigration and
Nationality Act, 8 U.S.C. 1253(h)(2)(B), is not the equivalent of a "serious nonpolitical
crime" under section 243(h)(2)(C) of the Aet, and is, in fact, more serious than a
"serious nonpolitical crime."
(4) A determination of whether a crime is a "pal ticultuiy serious crime" will depend upon
the specific facts in each case and, in judging the seriousness of a crime, the Board of
Immigration Appeals will consider such factors as the nature of the conviction, the
circumstances and underlying facts of the conviction, the type of sentence imposed, and,
most importantly, whether the type and circumstances' of the crime indicate that the
alien will be a danger to the community.
EXCLUDABLE: Act of 1952—Sec. 212(a)(9) [8 U.S.C. 1182(a)(9)] — Convicted of a crime
involving moral turpitude
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Juan M. Soliz, Esquire Samuel Der-Yeghiayan
1661 S. Blue Island Avenue General Attorney
Chicago, Illinois 60608
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
In an oral decision on June 9, 1981, the immigration judge found the
applicant excludable under section 212(a)(9) Of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(9), as an alien who had been convicted
of a crime involving moral turpitude, denied his applications for asylum .
and withholding of deportation, and ordered that he be excluded and
deported from the United States. The applicant has appealed from the
denial of asylum and withholding of deportation. The record will be
remanded_
The applicant, a 27-year-old single male alien, is a native and citizen of
Romania. He was indefinitely paroled into the United States on April 9,
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Interim Decision #2906
1980, pursuant to section 212(d)(5) of the Act. On Novewber 20, 1980,
he was convicted in the Circuit Court of Cook County, Illinois, of
burglary, in violation of Chapter 38, section 19 1 of the Illinois Revised
-
Statutes.' He was sentenced to time served (3 months) and. was placed
on probation for one year.
At his hearing, the applicant, through couhsel w admitted that he had
been convicted of the crime of burglary in Illinois. Burglary with intent
to commit theft is a crime involving moral turpitude. See Matter of De
La thus, 18 UN Dee. 140 (BIA 1981); Matter of Leyva, 16 I&N Dec.
118(BIA 1977); Matter of Scarpulla,15 I&N Dec. 139
(BIA 1974).
Thus, the applicant was properly found ex cludable under sectiori 212(a)(9)
of the Act.
Because the applicant submitted an application for asylum at the
initial hearing, the hearing was adjourned in order to obtain the Depart-
ment of State's advisory opinion. This opinion, in pertinent part, advises
as follows:
In uul view, the likelihood of perspentinn upon return to Romania was established when
Mr. Frentescu was granted refugee status and paroled into the United States in 1980.
Since that time, conditions have not changed in Romania and the forcible return of Mr.
Frentescu to that country would most likely entail serious consequences, such as
imprisonment, for him.
The immigration judge considered the Department of State's letter
but found that the applicant was ineligible for asylum because he had
been convicted of burglary, a serious crime involving- moral turpitude.
The immigration judge added that he would deny asylum, as a matter of
discretion, because the applicant had committed a crime involving moral
turpitude while in the country that gave him refuge.
The only issue on appeal is whether the immigration judge properly
denied the applicant's request for asylum and withholding of deportation.
The applicant contends that his conviction for burglary does not bar him
from eligibility for asylum inasmuch as burglary is not a "particularly
serious crime" and, even if it is, he is not a danger to the community.
Withholding of deportation as well as asylum is not available to an
alien who, having been convicted by a final judgment of a "particularly
serious crime, constitutes a danger to the community of the United
States." Section 243(h)(2)(B) of the Act; 8 C.F.R. 208.8(f)(iv).
In order to determine whether the applicant in this proceeding is
eligible for relief, we first must ascertain the meaning of "particularly
serious crime" as used in the Immigration and Nationality Act. Although
the specific language chosen by Congress reflects that a "particularly
serious crime" is more serious than a "serious nonpolitical crime," nei-
As relevant, this section provides that a person commits burglary when without author-
' ity he knowingly enters or without authority remains within a building, or any part
thereof, with intent to commit therein a felony or theft.
245
Interim Decision #2906
ther the Act nor the pertinent legislative history,' the 1967 Protocol
Relating to the Status of Refugees, 3 or the Handbook on Procedures
and Criteria for Determining Refugee Status (Geneva, 1979) specifically
defines a "particularly serious crime." In fact, the only definition of
crime, found in the Handbook, is the definition of a "serious nonpolitical
crime," which is as follows:
What constitutes a "serious" non-political crime for the purposes of this exclusion clause
is difficult to define, especially since the term "crime" has different connotations in
different legal systems. In some countries the word "crime" denotes only offences of a
serious character. In other countries it may comprise anything from petty larceny to
murder. In the present context, however, a "serious" crime must be a capital crime or a
very grave punishable act. Minor offences punishable by moderate sentences are not
grounds for exclusion under Article 1 F (IV' even if technically referred to as "crimes" in
the penal law of the country concerned.'
A refugee committing a serious crime in the country of refuge is subject to due process
of law in that country. In extreme cases, Article 33 paragraph 2 of the Convention
permits a refugee's expulsion or return to his former home country if having been
convicted by a final judgement of a "particularly serious" common crime, he constitutes
a danger to the community of his country of refuge."
The concept of a "particularly serious crime" is one that is of first
impression before this Board. No definition or interpretation of a
"particularly serious crime" is contained in the Act, the Protocol, or the
Handbook. The term is not analogous to any of the crimes specified in
the Act.? We note that when Congress classified crimes within sections
212 and 242 of the Act, no reference was made to a "particularly serious
See H.R. Rep. No. 96-781, 96th Cong., 2d Sess. 20, re-printed in [1980] U.S. Code
Cong. & Ad. News 160, 161.
3 19 U.S.T. 6223 (Part 5 196$), T.I.A.S. No. 6577, 606 U.N.T.S. 267.
• Reference is made to Article 1 F (h) of the 1951 Convention Relating to the Status of
4
Refugees, 189 U.N.T.S. 137. Under this provision, status as a refugee is not applicable to
any person with respect to whom there are serious reasons for considering that he has
committed a serious nonpolitical crime outside the country of refuge prior to his admission
to that country as a refugee.
Paragraph 155.
Paragraph 154.
We disagree with the immigration judge's conclusion that the applicant is statutorily
barreddrom withholding of deportation and asylum because he had been convicted in the
united States of a crime involving moral turpitude. we do not believe Congress intended
for section 243(h)(2)(B) of the Act or for 8 C.F.R. 208.8(f)(iv) to be so construed. Neither
section 243(h)(2)(B) nor 8 C.F.R. 208.8(f)(iv)•specifically prohibits an alien who has been
convicted of a crime involving moral turpitude from obtaining relief. Further, no cross-
reference has been made to the section of the Act which excludes an alien who has been
convicted of a crime involving moral turpitude. See section 212(a)(9) of the Act; cf. section
241(a)(4) of the' Act (deportability). MoreoYer, the immigration judge apparently incorpo-
rated the language of section 243(h)(2)(C) and 8 C.F.R. 208.8(f)(v) (whereby an alien is not
eligible for withholding of deportation or asylum if there are serious reasons for consider-
ing that he has committed a serious nonpolitical crime outside the United States prior to
his arrival) into section 243(h)(2)(13) of the Act. See generally Matter of Ballester-Garcia,
246
Interim Decision #2906
crime." No administrative history or case law has been presented before
, this Board defining or otherwise interpreting "particularly serious crime."
Thus, we cannot set forth an exact definition of a "particularly serious
crime" at this time. Howeyer, there are certain attributes of this con-
cept which can be characterized in general terms. At the outset, it
should be clear that a "particularly serious crime" is not the equivalent
of a "serinns nonpolitical crime." Further, a "particularly serious crime"
is more serious than a "serious nonpolitical crime," although many crimes
may be classified both as "particularly serious crimes" and as "serious
nonpolitie al crimes." While there are crimes which, on their face, are
"particularly serious crimes" or clearly are not "particularly serious
crimes," the record in most proceedings will have to be analyzed on a
case-by-case basis. In judging the seriousness of a crime, we look to
such factors as the nature of the conviction, the circumstances and
underlyirkg facts of the conviction, the type of sentence imposed, and,
most importantly, whether the type and circumstances of the crime
indicate that the alien will be a danger to the community. Crimes against
persons axe more likely to be categorized as "particularly serious crimes."
Nevertheless, we recognize that there may be instances where crimes
(or a crime) against property will be considered as such crimes.
We find that this applicant is not statutorily ineligible for asylum or
withholding of deportation as he is not an alien whose conviction comes
within the provisions of section 243(h)(2)(B) of the Act or within the
provisions of 8 C.F.R. 208.8(f)(iv). On the record before us, we do not
find that the applicant has been convicted of a "particularly serious
crime." We do not condone his crime, in essence, burglary with intent to
commit theft. However, considering the totality of the circumstances
before us concerning this crime, we do not find it to be of such a particu-
larly serious nature as to preclude relief. The crime was an offense
against property, rather than against a person. Although the applicant
did enter a dwelling; there is no indication that the dwelling was occu-
pied or that the applicant was armed; nor is there any indication of an
aggravating circumstance. Further, the applicant received a suspended
sentence, after spending a relatively short period of time in prison (3
months).- Such sentence, as viewed by the state circuit court judge,
reflects upon the seriousness of the applicant's danger to the community.
• In view of our finding, we believe that the record should be returned
to the immigration judge for a determination of whether the applicant
17 I&N Dec. 592(BIA 1980); Matter of Rodriquez Palma,17 I&N Dec. 465
(MA 1980).
-
Ile found that the applicant had been eonvief pri of a "serious crime" rather than a
"particularly serious crime" as required by section 243(h)(2)(B) of the Act and by 8 C.F.R.
208.8(t)(iv).
247
Interim Decision #2906 .
has established a well-founded fear of persecution. * Accordingly, the
record will be remanded.
ORDER The record is remanded to the immigration judge for
further proceedings consistent ""- foregoing opinion and the entry
of a new decision.,
FURTHER ORDER: Should a decision on remand be adverse to
the applicant, an appropriate order shall be entered and the record shall
be certified to us for review.
2 We are aware that the immigration judge denied asylum as a mater of disclaim'. -
However, under the facts before_ us, we believe that it was inappropriate to deny discre-
tionary relief.
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