If anyone doesn’t already think the “Particularly Serious Crime” doctrine is a muddled, unconstitutionally vague, morass, there’s more proof in the decision issued by the BIA today.  As we wrote in December

the statute does not define which crimes are “particularly serious,” and the Attorney General has done a terrible job of filling in the gaps. Matter of Frentescu lists factors the BIA typically considers in deciding this question. But the decisions that have followed are all over the place. For example, in Matter of De La Cruz, the Board stated without explanation that the term “danger to the community” is not equivalent to the term “threat to the community.” Sometimes it matters if a crime is “inherently dangerous,” notwithstanding the lack of actual injury. Matter of Rodriguez-Coto; Matter of Garcia-Garrocho. Other times the inherent dangerousness doesn’t matter as long as no-one was actually injured. Matter of L-S-. Sometimes violent crimes are “particularly serious.” E.g. Matter of B-. Other times they are not. Matter of Juarez, 19 I. & N. Dec. 664 (BIA 1988).

Today, in Matter of M-H-, the Board repeats what it concluded in Matter of N-A-M-, that the statutory language of the particularly serious crime bar to withholding of removal is ambiguous. Although the Third Circuit disagreed in Alaka v. Attorney General of U.S., 456 F.3d 88 (3d Cir. 2006), the Board now says it doesn’t have to apply the Third Circuit’s decision, because it “did not expressly determine that the language in question was unambiguous.”  Instead, the court in Alaka said the statutory language on particularly serious crimes was “plain.”  Got that?  Nevermind that “plain” and “unambiguous” are basically synonyms. Because the Third Circuit said “plain” instead of “unambiguous,” the BIA thinks it has room under the Supreme Court’s decision in Brand-X to wiggle past clearly precedential case law from the Third Circuit. The Third Circuit actually said more than that the statute was “plain.”  It said that it “clearly” and “explicitly” compelled the result it reached. “Clearly” and “explicitly” are not “ambiguous.

The decision also does not resolve the question left open by Matter of R-A-M- whether and when crimes against children are “particularly serious.”  In that case the Board held that possession of child pornography was “heinous” in nature and thus “particularly serious”. But the individual in Matter of M-H- was convicted in Pennsylvania for Indecent Assault and corruption of a minor. Indecent Assault requires indecent contact with the victim without their consent. If the Board can’t reach the same conclusion it reached in Matter of R-A-M- less than a year ago, we have little faith for its ability to administer this section of the statute at all in a manner that is fair or consistent.

The second half of the Board’s decision is equally specious.  The credibility determination (which the IJ used to deny the respondent’s withholding of removal claim) was based on his testimony about his criminal history – and not based on any inherent unbelievability, that his “account of events is not consistent with the required elements of the crimes to which he pled guilty.”  But what about his testimony about his fear of persecution in Pakistan?  The Board said based on his testimony about his criminal conviction alone, it would agree with the IJ’s credibility finding.  This is a stark reminder of what Judge Posner called the doctrine of “falsus in uno, falsus in omnibus” in his decision in Kadia v. Gonzales, where he said:

“The immigration judge failed to distinguish between material lies, on the one hand, and innocent mistakes, trivial inconsistencies, and harmless exaggerations, on the other hand. In effect, he applied the discredited doctrine of falsus in uno, falsus in omnibus (false in one thing, false in all things), which Wigmore called “primitive psychology,” [and] an “absolutely false maxim of life.” Anyone who has ever tried a case or presided as a judge at a trial knows that witnesses are prone to fudge, to fumble, to misspeak, to misstate, to exaggerate. If any such pratfall warranted disbelieving a witness’s entire testimony, few trials would get all the way to judgment.