Under 8 U.S.C. § 1231(b)(3)(A), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
However, § 1231(b)(3)(B)(ii) provides an exception to withholding of removal if the Attorney General decides that the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States. 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. This 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.
An alien who is described in 8 U.S.C. § 1227(a)(4)(B) shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States.
Under 8 U.S.C. § 1252(a)(2), a court of appeals has jurisdiction to review constitutional challenges and questions of law raised in a petition for review from a BIA decision. This court reviews the petitioner’s statutory challenge and her due process claim de novo.
Consistent with the rule in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), the BIA is entitled to deference in interpreting ambiguous provisions of the INA under the specific facts of this case.
This court refuses to adopt the petitioner’s suggestion that the BIA’s construction of “particularly serious crime” should be limited to aggravated felonies as adopted by the Third Circuit. The BIA has developed administrative standards for determining what constitutes a particularly serious crime. In judging the seriousness of a crime, the BIA looks to 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. This court agrees that apart from the designation of certain aggravated felonies as “particularly serious” offenses, the statute contains no limiting language restricting the Attorney General’s discretion to label other crimes as “particularly serious.” And, the long history of case-by-case determination of ‘particularly serious’ crimes” counsels against the petitioner’s attempt to craft a bright-line rule. Furthermore, Congress’s use of two different terms–“particularly serious” crime and “aggravated felony”– is additionally indicative of substantively distinct meanings. Given these somewhat open-ended definitions, the BIA or the Attorney General is authorized to develop a reasonable construction § 1231 to which this court defers under Chevron.
Section 1231(b)(3)(b)(ii) empowers the Attorney General to deny withholding to alien petitioners upon a determination that the petitioner having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States. The BIA construes this provision as requiring only an inquiry into whether the alien has committed a particularly serious crime. Once an alien is found to have committed a particularly serious crime, the BIA no longer engages in a separate determination to address whether an alien is a danger to the community.
The petitioner’s argument that the BIA’s omission of an inquiry into whether the facts and circumstances of her felony menacing conviction warranted a finding that she is a danger to the community constitutes a misapplication of the legal standard as articulated in 8 U.S.C. § 1231 is without success. The petitioner and the distinguished amici make strong arguments that the BIA is not accurately interpreting the statute and its treaty-based under-pinnings. However, this court is bound by its precedent to hold otherwise. In Al-Salehi v. INS, 47 F.3d 390, 393 (10th Cir. 1995), as conceded by Amicus Curiae United Nations High Commissioner for Refugees, this court affirmed the BIA’s interpretation of 8 U.S.C. § 1231, holding that no separate danger-to-the community assessment is required under the statute. And, as the Second Circuit noted in Ahmetovic v. INS, 62 F.3d 48 (2d Cir. 1995), this interpretation conflating the two requirements has been accepted by every circuit that has considered the issue. This court abides by our rule in Al-Salehi and affirm the BIA’s construction of § 1231 here; indeed, the court reminds amici that a panel of this court cannot overturn the decision of a previous panel absent a change in the law.
The petitioner’s contention that the BIA’s reliance on a Statement in Support of Warrantless Arrest (“the Statement”), which reflects hearsay allegations of sexual misconduct for which she received no criminal sanction, in its “particularly serious crime” analysis violated her due process rights is without merit. When facing removal, aliens are entitled only to procedural due process, which provides the opportunity to be heard at a meaningful time and in a meaningful manner. The evidentiary rules are not so strictly applied in immigration hearings. The test for admissibility of evidence in a deportation hearing is whether the evidence is probative and its use is fundamentally fair. Under its precedent dictating the evidentiary rules for immigration proceedings, this court finds no fundamental unfairness in the BIA’s use of the Statement; the petitioner was free to contest the statement with her own evidence. Accordingly, this court rejects the petitioner’s contention that the BIA’s reliance on the statement denied her due process. The BIA’s reasonable construction of 8 U.S.C. § 1231 is entitled to this court of appeals’ deference, and the petitioner suffered no deprivation of her due process rights. Accordingly, this court affirms the decision of the BIA.
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