Nader Ghloum Al-Salehi v. Immigration & Naturalization Service, 47 F.3d 390, 10th Cir. (1995)

47 F.
3d 390
63 USLW 2514
Nader Ghloum AL-SALEHI, Petitioner,

v.
IMMIGRATION & NATURALIZATION SERVICE,
Respondent.
No. 94-9527.
United States Court of Appeals,

Tenth Circuit.
Feb. 8, 1995.
Philip M. Alterman, Beverly W. Oserow, Denver, CO, for petitioner.

Frank W. Hunger, Asst. Atty. Gen., Robert Kendall, Jr., Alison R.
Drucker, Dept. of Justice, Civ. Div., Office of Immigration Litigation,
Washington, DC, for respondent.
Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
This petition for review raises a question of first impression in the circuit:
whether an aggravated felony conviction constitutes an absolute bar to
withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)(B), without the need
for an additional, specific finding of danger to the community. For the reasons
expressed below, we join several of our sister circuits and answer this question
in the affirmative.1
ADMINISTRATIVE PROCEEDINGS AND JUDICIAL REVIEW

2
Petitioner entered the United States as a visitor in 1989, and adjusted his status
to permanent resident in 1991 based on his marriage to a United States citizen.
On June 29, 1992, petitioner was convicted, upon a guilty plea in the United
States District Court for the District of Colorado, of possession with intent to
distribute at least 500 grams of cocaine. Thereafter, the Immigration and
Naturalization Service (INS) issued an order to show cause why petitioner

should not be deported as a consequence of this conviction, which is deemed an
"aggravated felony" for immigration purposes, see 8 U.S.C. Sec. 1101(a)(43).
Petitioner did not contest deportability, but applied for asylum and withholding
of deportation. He submitted statements from the prosecuting attorney and
sentencing judge, both of whom strongly supported his request for relief from
deportation.2 The Immigration Judge (IJ) denied the application, holding that
petitioner's conviction conclusively foreclosed such relief, pursuant to 8 U.S.C.
Sec. 1158(d) (asylum) and Sec. 1253(h)(2)(B) (withholding of deportation). On
appeal to the Board of Immigration Appeals (BIA), petitioner challenged only
the denial of withholding of deportation, arguing that the IJ had misinterpreted
Sec. 1253(h)(2)(B). The BIA agreed with the IJ's interpretation and dismissed
the appeal.
3
The statute under review provides in pertinent part:
4 The Attorney General shall not deport or return any alien ... to a country if the
(1)
Attorney General determines that such alien's life or freedom would be threatened in
such country on account of race, religion, nationality, membership in a particular
social group, or political opinion.
5 Paragraph (1) shall not apply to any alien if the Attorney General determines
(2)
that-6....
7 the alien, having been convicted by a final judgment of a particularly serious
(B)
crime, constitutes a danger to the community of the United States;For purposes of
subparagraph (B), an alien who has been convicted of an aggravated felony shall be
considered to have committed a particularly serious crime.
8
Section 1253(h) (emphasis added). The underscored passage, with its

grammatically indeterminate connection between the prior criminal conviction
and the requisite danger to the community, is the focus of the parties' dispute.
Petitioner contends, for various reasons, that the conviction serves as a
necessary but not sufficient condition for the denial of withholding of
deportation, i.e., that the conviction is a threshold requirement triggering
consideration of danger to the community, which also must be found before
relief may be denied under Sec. 1253(h)(2)(B). Because no such finding was
made in this case due to the contrary construction of the statute by the IJ and
BIA, who deemed petitioner's conviction sufficient in itself to foreclose relief,
petitioner asks us to reverse and remand for further proceedings on the merits
of his application.
When "our task is to determine if the BIA correctly determined that [petitioner]
was deportable under a particular statutory provision," we engage in a two-step
inquiry reflecting obeisance to the will of the legislature that drafted the
provision and deference to the judgment of the agency entrusted with its
implementation:
10the statutory language makes the intent of Congress clear and unambiguous, we
If
give full effect to that intent; if the statute is silent or ambiguous with respect to the
specific issue, however, we do not simply impose our own construction on the
statute, but give due deference to the BIA's interpretation of the INA [Immigration
and Nationality Act] unless it is arbitrary, capricious, or manifestly contrary to the
statute.
11
Solis-Muela v. INS, 13 F.3d 372, 375 (10th Cir.1993) (quoting Mosquera-Perez

v. INS, 3 F.3d 553, 555 (1st Cir.1993)) (internal quotation omitted); see
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-45, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). While we thus
acknowledge the deference owed to "the agency primarily charged by Congress
to implement the public policy underlying these [immigration] laws," INS v.
Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982), we also
recognize that "[t]he judiciary is the final authority on issues of statutory
construction and must reject administrative constructions which are contrary to
clear congressional intent," Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n.
9.
HISTORICAL BACKGROUND
12
A summary of the pertinent legislative and administrative background, culled

from a recent and particularly thorough decision construing Sec. 1253(h)(2)(B),
should help to frame our inquiry. We find the source of the provision in a
qualified international obligation assumed by the United States with respect to
refugees:
13 to 1980, section 1253(h) conferred discretion upon the Attorney General to

Prior
withhold the deportation of any alien who would be subject to persecution in the
receiving nation on account of race, religion, or political opinion. The Refugee Act
of 1980, Pub.L. 96-212, 94 Stat. 107 (1980), amended section 1253(h) to comport
with Article 33 of the United Nations Protocol Relating to the Status of Refugees
("Protocol"), Jan. 31, 1967, 19 U.S.T. 6223 (1968), to which the United States had
acceded in 1968. The Protocol bound its parties to the substantive provisions of
Articles 2 through 34 of the United Nations Convention Relating to the Status of
Refugees ("Convention"), July 28, 1951, 189 U.N.T.S. 150. Article 33 of the
Convention provides:
14
1. No Contracting State shall expel or return ("refouler") a refugee ... to ...

territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political
opinion.
15
2. The benefit of the present provision may not, however, be claimed by a

refugee ... who, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that country.
19 U.S.T. at 6276.
16
17
Mosquera-Perez v. INS, 3 F.3d at 556-57 (footnotes omitted and emphasis

added); see also Garcia v. INS, 7 F.3d 1320, 1324-25 (7th Cir.1993). Article
33(1) of the Convention is implemented by Sec. 1253(h)(1), which makes
withholding of deportation mandatory upon satisfaction of the statutory criteria.
See Nguyen v. INS, 991 F.2d 621, 626 (10th Cir.1993) ("the Attorney General
has no discretion in withholding of deportation decisions"). Likewise, Sec.
1253(h)(2)(B) incorporates the conclusive bar to such relief set out in Article
33(2). Indeed, as highlighted above, the Convention employs the same
indeterminate grammatical structure already noted in connection with the
statute.
18
With the enactment of the Refugee Act in 1980, the BIA took up its task of
interpreting and applying the provisions we have been considering. The
following passage traces the development of the BIA's present position that
conviction of a particularly serious crime, and specifically an aggravated
felony, ipso facto establishes one's dangerousness to the community, thereby
precluding relief under Sec. 1253(h)(2)(B) without the need for any additional
consideration of the question of community danger:
19
Between 1980 and 1990, the operative standard for determining which crimes
were "particularly serious" for section 1253(h)(2)(B) purposes was set forth by
the BIA in In re Frentescu, 18 I. & N. Dec. 244 (1982):
20
While
there are crimes which, on their face, are "particularly serious crimes" or are
clearly 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 [various factors] ... and, most importantly, whether the type and circumstances of
the crime indicate that the alien will be a danger to the community.
Id.
21 at 247. Once an alien's crime was deemed "particularly serious," however, the
BIA interpreted section 1253(h) as not requiring a separate determination that the
alien posed a danger to the community. In re Carballe, 19 I. & N. Dec. 357 (1986)
("The phrase 'danger to the community' is an aid to defining a 'particularly serious
crime,' not a mandate that administrative agencies or the courts determine whether
the alien will become a recidivist.") modified on other grounds, In re Gonzalez, 19 I.
& N. Dec. 682 (1988).
22
The Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5053
(1990), obviated the Frentescu analysis for aggravated felonies by appending
the following paragraph to section 1253(h):
23 purposes of subparagraph (B), an alien who has been convicted of an aggravated

For
felony shall be considered to have committed a particularly serious crime.
824U.S.C. Sec. 1253(h) (1993). The BIA has continued to follow Carballe since the
1990 amendment to section 1253(h), by requiring no separate finding of
dangerousness to the community in the case of an alien convicted of an aggravated
felony.
25
Mosquera-Perez, 3 F.3d at 557 (footnote omitted); see also Garcia, 7 F.3d at

1322.
ANALYSIS
26
Petitioner looks to four separate sources to support his contrary interpretation of

Sec. 1253(h)(2)(B): the language of that particular provision; the structure of
the statutory scheme, particularly the divergent treatment of the related matter
of asylum; the legislative history of the 1990 amendments; and the nature of the
obligations assumed by the United States with respect to refugees under the
Convention and Protocol discussed above. We address each of these matters in
turn.
1. Statutory Language
27
The courts generally have recognized that the linguistic structure of Sec.
1253(h)(2)(B) precludes an unequivocal, conclusive interpretation based on
language alone. See, e.g., Mosquera-Perez, 3 F.3d at 555-56 (holding provision
"ambiguous"); Martins v. INS, 972 F.2d 657, 661 (5th Cir.1992) (noting
grammatical support for petitioner's position, though affirming BIA's
interpretation based on legislative history); Ramirez-Ramos v. INS, 814 F.2d
1394, 1397 (9th Cir.1987) (holding BIA's interpretation "reasonable" upon "a
close reading of the language"); see also Garcia, 7 F.3d at 1326 & n. 6
(characterizing essentially identical Convention provision as "uncertain[ ]" and
"somewhat opaque"). But see Arauz v. Rivkind, 845 F.2d 271, 275 (11th
Cir.1988) (holding statute itself expresses cause and effect relationship between
conviction and community danger obviating need for independent finding on
latter). We agree that Congress could have expressed its intent much more
clearly, either by simply inserting the conjunction "and" between its references
to criminal conviction and danger to the community (thus mandating
petitioner's construction), or by plainly stating that the requisite conviction also
satisfied the community danger element (thus mandating the BIA's
construction).
28
The linguistic difficulty marked here is evidently a result of Congress'

adherence to the phraseology of the Protocol, revealing more about the locution
of international diplomacy than about Congressional intent. But, whatever its
cause, the uncertainty involved favors the BIA by implicating the principle of
administrative deference discussed earlier. Moreover, the legislative history
referenced infra note 4 indicates the BIA accurately divined the statute's
intended effect, however obscured by its peculiar derivation.
2. Disparate Treatment of Asylum

29
"Where Congress includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion." INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S.Ct. 1207, 1213,
94 L.Ed.2d 434 (1987) (quotations omitted). Petitioner invokes this general rule
of thumb as a categorical premise from which to argue that Congress' plain and
direct exclusion of aggravated felons from asylum relief in 8 U.S.C. Sec.
1158(d)3 belies the BIA's effort to accord the same effect to the comparatively
cryptic language in Sec. 1253(h)(2)(B).
30
This argument illustrates the myopia that can result from the use of an
ahistorical principle of construction in a context with a rich historical
background. When Congress added the asylum exclusion to Sec. 1158 in 1990,
the existing exclusion in Sec. 1253(h)(2)(B) already had been interpreted--by
the BIA and two circuits--as automatically barring withholding of deportation
upon conviction of a particularly serious crime.4 As Congress was
presumptively aware of this prevailing construction of the statute, Lorillard v.
Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 869, 55 L.Ed.2d 40 (1978), "it was far
easier for Congress simply to build on [the existing] structure [of Sec. 1253(h)
(2)(B) ] by providing that aggravated felonies are themselves particularly
serious crimes [and thus barred under the established construction of the
statute], rather than creating a new independent bar [like that created for asylum
in Sec. 1158(d) ] based on conviction for an aggravated felony." Garcia, 7 F.3d

at 1322-23; see also Mosquera-Perez, 3 F.3d at 555-56, 559.
3. Legislative History
31
Petitioner raises several additional points of legislative history to counter the

BIA's interpretation, but these have all been refuted by other courts. First,
petitioner notes that the 1990 amendment to Sec. 1253(h)(2)(B), expressly
designating aggravated felonies as particularly serious crimes for purposes of
the withholding of deportation exclusion, was enacted in lieu of other bills
which would have linked such crimes much more directly to the exclusion of
relief, in the manner of the asylum amendment. Petitioner contends the fate of
these rival bills reflects Congress' explicit rejection of the BIA's approach. We
agree with the First Circuit's treatment of this issue, which is firmly guided by
Supreme Court precedent:
32 nonadoption of these legislative bills is not probative of congressional intent in

Mere
this instance, however, since several equally tenable inferences[ ] may be drawn
from such inaction, including the inference[,] [eminently reasonable here,] that the
existing legislation already incorporated the offered change. In these circumstances,
it is no less reasonable to infer that the proposed amendment failed of adoption
because Congress was satisfied with the administrative and judicial construction
then being given section 1253(h)(2) than to assume that Congress intended to signal
its dissatisfaction with the prevailing construction.
33
Mosquera-Perez, 3 F.3d at 558 (internal quotations and citations omitted).
34
Petitioner also directs our attention to a letter written by Senator Edward

Kennedy, chair of the Senate Subcommittee on Immigration and Refugee
Affairs that approved the 1990 amendments, which suggests Congress
intended, as petitioner maintains, that both an aggravated felony conviction and
danger to the community must be shown before withholding of deportation
may be denied under Sec. 1253(h)(2)(B). The First and Fifth Circuits have
addressed and soundly disposed of this point:
35 a general rule, ... post-enactment legislative history is accorded less weight than
As
contemporaneous commentary. Even if we were to give weight to this letter, it
would be counterbalanced by the pre-passage legislative history.... [T]he Fifth
Circuit, considering the identical question ..., found unambiguous support for the
BIA's interpretation in the legislative history accompanying the Refugee Act.
Mosquera-Perez, 3 F.3d at 558 (footnotes and citations omitted); see Martins,
36
36
972 F.2d at 661 (similarly rejecting Kennedy letter based on contrary

indications of legislative intent). We agree and expressly note our reluctance to
rely on the unilateral and extra-legislative comments of particular individuals,
especially where, as here, full committee reports are available (and indicate
contrary views). The same points undercut petitioner's reliance on another item
of Congressional correspondence, from Senator Alan Simpson, which,
moreover, does not even appear to support petitioner's position--Senator
Simpson merely expresses his wish not to deviate from the existing (i.e., pre1990) system, which, as discussed above, already countenanced the denial of
relief under Sec. 1253(h)(2)(B) without a specific finding of danger to the
community.
4. International Obligations of the United States

37
38
Noting, correctly, that legislative intent to abrogate or modify a treaty must be

affirmatively and clearly expressed, Trans World Airlines, Inc. v. Franklin Mint
Corp., 466 U.S. 243, 252, 104 S.Ct. 1776, 1782, 80 L.Ed.2d 273 (1984)
(quoting Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 311, 77 L.Ed.
641 (1933)), petitioner maintains Congress' failure to express any such intention
in connection with the passage and amendment of Sec. 1253(h)(2)(B) requires a
strict correspondence between constructions of the statute and Article 33(2) of
the Convention. Petitioner contends, further, that the BIA's interpretation of
Sec. 1253(h)(2)(B) deviates from the Convention provision and, thus, must be
rejected.
39
We have no quarrel with the general legal premise petitioner relies upon; its
application here, however, is quite dubious. First of all, this is not a simple case
of comparing a disputed statutory construction against a definitively stated
treaty obligation. The operative provisions in the Convention and the statute are
ambiguous in precisely the same way. Thus, absent some reason--and none
have been suggested--to approach the language of Article 33(2) differently, a
plausible construction of the statute is perforce a plausible construction of the
Convention, thus showing the requisite congruity between statute and treaty.
Furthermore, petitioner does not cite any authority for his reading of the
Convention; he merely insists in conclusory fashion that it dictates his
construction of Sec. 1253(h)(2)(B). We agree with the Seventh Circuit, which
considered the same question and stated that "[i]n light of this uncertainty
[about the meaning of the Convention], we conclude that the BIA's
interpretation of [Sec. 1253(h)(2) ] does not violate Article 33(2)." Garcia, 7
F.3d at 1326.CONCLUSION
40
For the foregoing reasons, we hold that the administrative construction of Sec.
1253(h)(2)(B) enforced by the BIA in this proceeding is entitled to our

deference. Petitioner, who concedes his prior conviction of an aggravated
felony, is therefore conclusively disqualified from withholding of deportation
under the statute, regardless of whether other circumstances mitigate his
potential dangerousness to the community. As this point is dispositive of the
case, the petition for review is DENIED.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument
The judge wrote she had been convinced by the evidence that "[petitioner] was
prodded into arranging a drug purchase [for someone else] by an overly
enthusiastic DEA agent who badgered him," that "this was [petitioner's] first
and only contact with drugs," that "he has absolutely learned his lesson and will
not be involved in the future in any illegal activity," and that "[t]he supplier of
the drugs would never have been convicted without [petitioner's] assistance and
testimony." Admin.R. at 58. The prosecuting attorney similarly noted
petitioner's minimal criminal involvement, sincere remorse, and substantial
cooperation resulting in the conviction of a "significant cocaine supplier." Id. at
56-57. They both concluded petitioner was an exceptional case warranting the
favorable exercise of administrative discretion
"An alien who has been convicted of an aggravated felony ... may not apply for
or be granted asylum." 8 U.S.C. Sec. 1158(d)
See Arauz, 845 F.2d at 275; Ramirez-Ramos, 814 F.2d at 1397. Indeed, the
legislative history accompanying the Refugee Act of 1980 indicates Congress
explicitly intended the construction imposed on Sec. 1253(h)(2)(B) by the BIA
and these courts. See Martins, 972 F.2d at 661 (quoting House Judiciary
Committee Report)

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47 F.

Nader Ghloum AL-SALEHI, Petitioner,

United States Court of Appeals,

Philip M. Alterman, Beverly W. Oserow, Denver, CO, for petitioner.

ADMINISTRATIVE PROCEEDINGS AND JUDICIAL REVIEW

Naturalization Service (INS) issued an order to show cause why petitioner

The statute under review provides in pertinent part:

Section 1253(h) (emphasis added). The underscored passage, with its

Solis-Muela v. INS, 13 F.3d 372, 375 (10th Cir.1993) (quoting Mosquera-Perez

A summary of the pertinent legislative and administrative background, culled

13 to 1980, section 1253(h) conferred discretion upon the Attorney General to

1. No Contracting State shall expel or return ("refouler") a refugee ... to ...

2. The benefit of the present provision may not, however, be claimed by a

Mosquera-Perez v. INS, 3 F.3d at 556-57 (footnotes omitted and emphasis

23 purposes of subparagraph (B), an alien who has been convicted of an aggravated

Mosquera-Perez, 3 F.3d at 557 (footnote omitted); see also Garcia, 7 F.3d at

Petitioner looks to four separate sources to support his contrary interpretation of

The linguistic difficulty marked here is evidently a result of Congress'

2. Disparate Treatment of Asylum

"Where Congress includes particular language in one section of a statute but

in Sec. 1158(d) ] based on conviction for an aggravated felony." Garcia, 7 F.3d

Petitioner raises several additional points of legislative history to counter the

32 nonadoption of these legislative bills is not probative of congressional intent in

Mosquera-Perez, 3 F.3d at 558 (internal quotations and citations omitted).

Petitioner also directs our attention to a letter written by Senator Edward

972 F.2d at 661 (similarly rejecting Kennedy letter based on contrary

4. International Obligations of the United States

Noting, correctly, that legislative intent to abrogate or modify a treaty must be

1253(h)(2)(B) enforced by the BIA in this proceeding is entitled to our

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