In a decision published last week, the Fourth Circuit Court of Appeals held that a crime that is not an aggravated felony may nonetheless be considered a “particularly serious offense” or “particularly serious crime” (PSC) for purposes of Withholding of Removal and asylum eligibility. Gao v. Holder, No. 07-2070, slip. op (4th Cir. Feb. 23, 2010) (Traxler, Wilkinson, and Michael). The Fourth Circuit also held that a crime that is not a PSC on its face, may rise to the level of a PSC if it implicates national security. Judge Wilkinson wrote the panel’s unanimous opinion.

This case concerns a lawful permanent resident convicted of unlawful export of Commerce Control List items, 50 U.S.C. § 1702 and 1705(b), and tax fraud, 26 U.S.C. § 7206(1). According to the BIA, Gao exported microprocessors to “‘quasi-governmental entities in China’ that focused on military research.” Gao, No. 07-2070, slip. op at 3.

The parties agreed that the unlawful export offense did not constitute an aggravated felony. Gao, No. 07-2070, slip. op at 6. Nonetheless, the BIA found that this offense was a PSC, thus barring Gao from eligibility for withholding of removal. Gao, No. 07-2070, slip. op at 2.

The parties and the Fourth Circuit agreed that the INA does not provide a clear definition of PSC. The INA sets out the framework for determining what constitutes a PSC in § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii):

an 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.

Individuals who have been convicted of a PSC are ineligible for Withholding and asylum.

The critical issue on appeal concerns the second sentence of the passage quoted above. Gao “contends that the second sentence modifies the one before it by granting the Attorney General discretion to find that other aggravated felonies are particularly serious on a case-by-case basis. But because the second sentence does not mention non-aggravated felonies, she argues that the Attorney General is implicitly precluded from considering those offenses as particularly serious crimes.” Gao, No. 07-2070, slip. op at 7.

In contrast, in Matter of N-A-M-, 24 I&N Dec. 336, 337 (BIA 2007), the BIA held that a PSC “need not be an aggravated felony.” Gao, No. 07-2070, slip. op at 7. In Matter of N-A-M-, the BIA explained that the second sentence “means only that aggravated felonies for which sentences of less than 5 years’ imprisonment were imposed may be found to be particularly serious crimes, not that only aggravated felonies may be found to be such crimes.” Gao, No. 07-2070, slip. op at 7 (quoting Matter of N-A-M-, 24 I&N Dec. at 341).

Relying on the deference that courts are required to give to administrative agencies, including the BIA, the Fourth Circuit disagreed with Gao and instead adopted the BIA’s position announced in Matter of N-A-M-. Gao, No. 07-2070, slip. op at 7 (discussing deference required by Chevron U.S.A. Inc v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)).

First, the Fourth Circuit concluded that, as the BIA held, the second sentence of this passage merely clarifies the first. “That is, the second sentence clarifies that the previous sentence simply creates a per se category of particularly serious crimes, rather than the exclusive category.” Gao, No. 07-2070, slip. op at 8. It is within the BIA’s authority, therefore, to determine that crimes other than those referenced by the first sentence—“ an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years”—may be considered PSCs.

The Fourth Circuit approvingly noted two other justifications that the BIA has given for its reading of the INA’s PSC provisions—one based in effect on the administrative equivalent of stare decisis and the second based on legislative intent. First, “[s]ince Congress first enacted the provision in 1980, the BIA’s ‘consistent practice’ has ‘reflected an understanding’ that particularly serious crimes need not be aggravated felonies. And despite the fact that Congress has amended the statute several times, it has never limited the concept of particularly serious crimes to aggravated felonies.” Gao, No. 07-2070, slip. op at 9 (quoting Matter of N-A-M-, 24 I&N Dec. at 338-41). In other words, the BIA has always interpreted the PSC passage quoted above as allowing it to find that offenses other than aggravated felonies constitute PSCs and the Fourth Circuit did not see a need to disturb this consistency.

Importantly, the Fourth Circuit did not mention the rule of lenity that requires, in the immigration context, that ambiguous provisions be interpreted in favor of the non-citizen. The rule of lenity recognizes the harsh punishment that is deportation, especially for lawful permanent residents, and attempts to mitigate the frequency of its infliction when Congress did not clearly indicate its intent to enact a harsh statute.

Second, “the BIA noted that its reading was consistent with the purpose of the statute, which is to protect the public from dangerous individuals….Limiting particularly serious crimes to aggravated felonies would therefore ‘create[] a gap or loophole’ whereby individuals committing very serious crimes would remain eligible for withholding of removal, unless some other statutory exception happened to apply to them.” Gao, No. 07-2070, slip. op at 9 (quoting Matter of N-A-M-, 24 I&N Dec. at 341). Though the Fourth Circuit did not state as much, it would seem that this conclusion renders the PSC category of offense a catchall provision. Anything that is not deemed to be an aggravated felony may nonetheless preclude a person from eligibility for withholding because the BIA has wide latitude to declare it to be a PSC. This despite the fact that Congress has expressed no hesitancy in expanding the number and type of offenses deemed to be aggravated felonies since that category was introduced to immigration law in 1988.

This is particularly troubling in light of the BIA’s acknowledgment that Gao’s unlawful exporting conviction “is not a particularly serious crime on its face.” Gao, No. 07-2070, slip. op at 13. Rather, the unlawful export conviction rose to the level of PSC only because of the “national security implications” surrounding the conviction. Gao, No. 07-2070, slip. op at 13.