‘Particularly Serious Crime’ Definition Altered by Third Circuit

A conviction for a “particularly serious crime” that will prevent petitioners from staying in the U.S. is the same thing under both the asylum and withholding of removal statutes, the full Third Circuit said Aug. 12.

Reaching that conclusion, the court overruled circuit precedent saying a particularly serious crime under the withholding of removal statute is limited to aggravated felonies. Instead, aggravated felonies are only a subset of the crimes covered by the statutes, the opinion by Judge Patty Shwartz said.

After an allegedly forcible sexual encounter with a female student at Goldey-Beacom College, Eduardo Bastardo-Vale, a Venezuelan citizen, pleaded no contest to second degree unlawful imprisonment under Delaware law. The Board of Immigration Appeals ordered him removed because he was convicted of a particularly serious crime.

CitingAlaka v. Attorney General, Bastardo-Vale argued he was eligible for asylum or withholding of removal under the Convention Against Torture because the crime he pleaded to wasn’t an aggravated felony.

Alaka, which was handed down in 2006, did hold that a particularly serious crime is synonymous with an aggravated felony, the court said. But every other circuit to address the issue since then has held otherwise, it said, joining the majority.

Both the asylum statute and the withholding of removal statute allow the attorney general to designate crimes that are particularly serious, the court said. Reading particularly serious crimes to mean only aggravated felonies reads this designation out of the statutes, it said.

Judges Theodore A. McKee and Thomas L. Ambro dissented, arguing that Alaka shouldn’t have been overruled. Giving the attorney general effectively unlimited power to define particularly serious crimes is inconsistent with the language of the statutes, Ambro said.

Morais Law represented Bastardo-Vale. DOJ represented the government.

The case is Bastardo-Vale v. Attorney Gen., 3d Cir., No. 17-2017, 8/12/19.