It is difficult to make much sense of the body of law governing “particularly serious crimes.” An immigrant convicted of a particularly serious crime is ineligible for asylum or withholding of removal. This is a big deal. Withholding of removal protects immigrants from being deported to a country where it is more likely than not (that is, more than 50% likely) that they will be persecuted (i.e. murdered, raped, etc.). It does not give the immigrant citizenship or many rights at all, just the right to not be sent to near-certain death.
As we recently discussed in relation to the Judulang decision, the BIA is all over the place on what crimes are “particularly serious.” Well, add this one to the mix. The BIA published its opinion in Matter of R-A-M- today, holding that while “possession of child pornography” is not “per se” a “particularly serious crime,” it is particularly serious given its heinous nature. Which is to say, it is “per se” a particularly serious crime. While, on a blank slate, we might not disagree, the decision contradicts itself as well as one precedential decision the BIA has never disavowed or rescinded.
First, the BIA’s discussion of whether “possession of child pornography” is “per se” particularly serious is nearly unintelligible. First, the Board said
The fact that the respondent was convicted for possessionof child pornography does not make the offense per se a particularly serious crime and does not end our review.
But when the Board went on to consider the “individual facts and circumstances,” it only discussed the inherent dangerousness and repulsiveness of the type of crime committed. It discussed the perpetual harm to child victims in all child pornography crimes. The Board went on to say that
the nature of the respondent’s crime is so condemnable that the length of the sentence is less significant to the analysis.
In all, the BIA’s conclusion reads like a finding that all possession of child pornography convictions will be “particularly serious” given the inherently heinous nature of the crime. But the Board concluded the opposite, that “the respondent’s offense is not per se a particularly serious crime.” What gives? It either is “per se” serious, or it’s not.
Finally, the BIA’s statement that the length of sentence really shouldn’t matter contradicts its past cases, which the Board does not attempt to reconcile. The BIA has held that misdemeanors usually are not particularly serious. In R-A-M-, the individual was sentenced to less than a year in jail under a California “wobbler” statute, which arguably makes the crime a misdemeanor. If it is a misdemeanor, then the BIA either needs to discuss why its prior precedential decision is no longer good law, or it must explain why this case is an exception to that rule.