GONZALEZ

Citations

• 19 I. & N. Dec. 682

Syllabus

GONZALEZ, 19 I&N Dec. 682 (BIA 1988) ID 3071 (PDF) (1) An applicant in exclusion proceedings who has been convicted in a state court of possession of heroin with intent to deliver is statutorily ineligible for the relief of withholding of exclusion and deportation pursuant to section 243(h)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1982), by virtue of having been convicted of a particularly serious crime. (2) The Board of Immigration Appeals and immigration judges are not bound by the provisions of 8 C.F.R. § 208.8(f)(1)(iv) (1988) which precludes district directors of the Immigration and Naturalization Service from granting asylum 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. (3) While the Board and immigration judges are not precluded from granting the relief of asylum to an alien who is barred from relief under section 243 (h)(2) of the Act as one who has been convicted of a particularly serious crime, we have, as a matter of practice, considered such a bar to be a controlling factor in determining whether an alien warrants a grant of asylum in the exercise of discretion. (4) The Board now withdraws from the practice of pretermitting asylum applications when the statutory bar is applicable under section 243 (h)(2) of the Act and thus requires a full evidentiary hearing on the merits of the claim in order to determine if asylum should be granted in the exercise of discretion. Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986) Matter of Carballe, 19 I&N Dec. 357 (BIA 1986) Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985) Matter of Salim, 18 I&N Dec. 311 (BIA 1982) Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982) Matter of Doural, 18 I&N Dec. 37 (BIA 1981) Matter of Ballester-Garcia, 17 I&N Dec. 592 (BIA 1980) and Matter of Rodriguez-Palma, 17 I&N Dec. 465 (BIA 1980), modified.