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By Brian Figeroux, Esq. | Editorial Credit: / shutterstock.com 

Navigating the complex landscape of particularly serious crimes (PSCs) in U.S. immigration law requires a deep understanding of both the legal standards and the factual nuances of each case. Recent case law has continued to evolve, placing greater emphasis on individualized assessments and opening new avenues for appeals.

The designation of a crime as a “particularly serious crime” (PSC) plays a critical role in U.S. immigration law, affecting thousands of immigrants each year. The repercussions of this classification can be profound, often resulting in the denial of asylum, withholding of removal, or other forms of relief. The immigration laws surrounding PSCs have evolved through both statutory amendments and judicial decisions, making it one of the most complex areas for immigration attorneys to navigate.

This article aims to demystify the intricacies of particularly serious crimes (PSCs) as they apply to immigrants in the United States, providing a comprehensive review of what constitutes a PSC, analyzing recent case law, and offering expert insights on how attorneys can effectively conduct a thorough analysis and build a robust record for appeals before U.S. Citizenship and Immigration Services (USCIS) or the immigration court system.

Section 1: Defining “Particularly Serious Crimes” (PSCs)

1.1 Legal Definition and Origins

The term “particularly serious crime” originates from Section 208(b)(2)(A)(ii) of the Immigration and Nationality Act (INA), where it is applied specifically to asylum seekers. This provision precludes an individual from obtaining asylum if they have been convicted of a PSC. A similar exclusion applies to withholding of removal under Section 241(b)(3)(B) of the INA. Importantly, PSCs not only cover aggravated felonies but also can extend beyond those definitions depending on the facts of the case.

• Aggravated Felonies and PSCs: The INA defines certain aggravated felonies as particularly serious per se, particularly if the individual is sentenced to at least five years in prison. However, the Attorney General and immigration judges have broad discretion to classify other non-aggravated felonies or even misdemeanors as PSCs.
• Discretionary Determination: In cases where the offense is not automatically considered a PSC by statute, the determination is made on a case-by-case basis. The adjudicator takes into account the nature of the crime, the circumstances surrounding the conviction, and the potential danger to the community.

1.2 The Role of USCIS and Immigration Courts in PSC Determination

USCIS asylum officers and immigration judges are tasked with making PSC determinations. Unlike criminal courts, immigration proceedings do not focus solely on the legal classification of the crime but also evaluate the totality of the circumstances surrounding the criminal conduct, including whether the individual poses a current threat to the community.

• Significance for Relief Eligibility: Being convicted of a PSC bars not only asylum but also withholding of removal, meaning the individual cannot avoid deportation even if they face severe harm in their home country. The only remaining avenue of relief in many cases is protection under the Convention Against Torture (CAT), which has a much higher standard.

Section 2: Recent Case Law on Particularly Serious Crimes

2.1 Case Law Developments and Shifting Standards

In recent years, federal courts and the Board of Immigration Appeals (BIA) have issued several rulings that have refined the interpretation of what constitutes a PSC. These cases highlight the growing importance of individualized assessments and the need for attorneys to construct strong records for their clients.

• Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014): In this case, the BIA ruled that even if a noncitizen has been convicted of a crime that is not automatically classified as a PSC, the adjudicator must consider the nature of the crime and the circumstances surrounding it to determine if it fits the PSC definition. This case reinforced the broad discretion immigration judges have in making these determinations.
• Barrera-Leyva v. Sessions, 872 F.3d 1002 (9th Cir. 2017): The 9th Circuit further clarified that adjudicators must consider whether the noncitizen poses a current danger to the community when deciding PSC classification. The court emphasized that the focus should not solely be on the past conviction but also on the individual’s conduct since the conviction.
• Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062 (2020): The Supreme Court ruled that noncitizens can seek judicial review of PSC determinations based on factual findings in their case. This decision is particularly significant as it opens the door for appellate review of the discretionary decisions made by immigration judges.

2.2 Factors Considered in PSC Determinations

Courts and the BIA often take into account several factors in determining whether a crime is particularly serious, beyond the statutory elements of the crime itself. These factors include:

• Nature and Circumstances of the Offense: The specific facts of the crime, such as the use of violence, the presence of a weapon, or the intent to cause harm, are often considered.
• Sentence Length and Type: While the INA sets a five-year sentence as a threshold for automatic PSC classification in certain aggravated felonies, shorter sentences may still be deemed particularly serious depending on the underlying facts.
• Danger to the Community: The threat posed by the individual to the community is a crucial factor. This can include the presence of recidivism, evidence of rehabilitation, or a lack thereof, and other indicators of dangerousness.

Section 3: Expert Insights on Analyzing PSCs and Building the Record

3.1 Conducting a Thorough Legal and Factual Analysis

For immigration attorneys, conducting a thorough analysis of the criminal record and other relevant factors is essential when dealing with PSC issues. Key steps include:

• Reviewing the Record of Conviction (ROC): This includes examining court documents such as the indictment, judgment, and plea agreements. Attorneys must ensure that the ROC accurately reflects the nature of the offense and whether any mitigating factors are present.
• Gathering Mitigating Evidence: It is critical to build a record that highlights any mitigating factors, such as the noncitizen’s rehabilitation efforts, lack of recidivism, or positive contributions to society. Letters of support, evidence of employment, or involvement in community activities can be crucial.
• Assessing the Risk of Future Dangerousness: When preparing for immigration court or appeals, attorneys should present evidence that their client does not pose a current or future threat to the community. This could involve psychological evaluations, evidence of rehabilitation, or expert testimony.

3.2 Crafting Effective Legal Arguments for Appeals

• Appealing PSC Determinations: When challenging a PSC designation, it is essential to focus on both legal errors and factual misinterpretations. Arguments should center on whether the immigration judge or asylum officer properly applied the legal standard and considered all relevant mitigating evidence.
• Using Case Law and Precedent: Successful appeals often hinge on the ability to distinguish the client’s case from prior rulings that established PSC designations. Attorneys should be well-versed in relevant case law, including both binding precedent from the BIA and persuasive rulings from the federal courts.
• Documentation and Procedural Integrity: Attorneys must ensure that the record is fully developed at every stage of the proceedings. Failing to properly document mitigating evidence or procedural irregularities at the immigration court level can severely limit options on appeal.

Section 4: Strategic Considerations for Attorneys in PSC Cases

4.1 Preemptive Steps Before a PSC Designation

• Negotiating Plea Agreements: In criminal cases involving noncitizens, it is crucial for defense attorneys to work in tandem with immigration counsel to negotiate plea deals that avoid triggering PSC designations. Careful analysis of the potential immigration consequences of any conviction is necessary.
• Early Intervention and Rehabilitation: Encouraging clients to engage in rehabilitation programs, counseling, or community service before they even enter immigration proceedings can help mitigate the perception of dangerousness.

4.2 Engaging Expert Witnesses

In complex PSC cases, expert witnesses can play a pivotal role. For example, criminologists, forensic psychologists, or community leaders can provide testimony that speaks to the individual’s likelihood of rehabilitation and the actual threat they pose to the community.

Conclusion

Navigating the complex landscape of particularly serious crimes (PSCs) in U.S. immigration law requires a deep understanding of both the legal standards and the factual nuances of each case. Recent case law has continued to evolve, placing greater emphasis on individualized assessments and opening new avenues for appeals. For attorneys representing immigrants, building a strong record and crafting persuasive arguments are key to mitigating the potentially devastating consequences of a PSC designation.

By thoroughly analyzing the criminal record, gathering compelling mitigating evidence, and utilizing expert testimony, attorneys can increase the chances of success in PSC-related cases. With the stakes often being nothing short of deportation or asylum denial, this is one of the most critical areas of immigration law practice today.