Particularly serious crime


Particularly serious crime in the Immigration and Nationality Act of the United States is a predecessor of the current aggravated felony. The term "particularly serious crime" was coined for the first time when the U.S. Congress enacted the Refugee Act in 1980. As of September 30, 1996, an aggravated felony conviction with at least 1 year of imprisonment that was actually imposed by a court of law could qualify as a particularly serious crime in certain cases. This requires a case-by-case analysis. An offense that involves murder or torture is considered a particularly serious crime even if the possible term of imprisonment is 2 years or less.

History

The term "particularly serious crime" was created in 1980 during the enactment of Refugee Act, which allowed 50,000 international refugees to be firmly resettled in the United States each year. In the same Act, Congress provided permanent protection to these refugees against removability from the United States. In 1996, Congress reaffirmed the refugee protection but made clear that such protection must not be granted to any other class of aliens.
Aliens who have been convicted of particularly serious crimes are statutorily precluded from receiving asylum or a grant of withholding of removal under 8 U.S.C. § 1231. But this restriction only applies to those aliens who have been convicted by a court of law of a felony that is indisputably punishable by two years or more of imprisonment, or any state misdemeanor punishable by a term of imprisonment exceeding two years, and said "term of imprisonment was completed within the previous 15 years."
The above legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." In this regard, the INA provides the following important provision that must be applied to every person convicted of an aggravated felony:
"The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.'" Congress is expressly saying that 8 U.S.C. §§ 1101, 1158, 1182, 1227, 1229b, 1427, 1431, 1432, 1433, etc., must be overridden by the above quoted penultimate provision of § 1101. "In statutes, the 'shows which provision prevails in the event of a clash.'" Moreover, courts have repeatedly explained that "the phrase 'notwithstanding any other provision of law' expresses the legislative intent to override all contrary statutory and decisional law."
Aliens convicted of particularly serious crimes are also precluded from receiving a grant of withholding of removal under the United Nations Convention against Torture. But such dangerous aliens can still receive deferral of removal under the CAT, which is mandatory.

Comparison of a particularly serious crime to an aggravated felony

For purposes of the INA, any criminal conviction that does not qualify as an aggravated felony or a crime involving moral turpitude cannot qualify as a particularly serious crime. The following is an incomplete list of particularly serious crimes: