Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A28-472-859.
Before: Procter Hug, Jr., Jerome Farris, and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge Hug.
Mirahmad Feroz ("Feroz") is a native and citizen of Afghanistan. He travelled to the United States in 1987 on a business visa, and was at that time arrested at the airport in New York City by United States Customs Service officials, upon their discovery of heroin in his briefcase. Feroz was convicted on charges of importation of heroin and sentenced to four years in prison.
The Immigration and Naturalization Service ("INS") initiated deportation proceedings against Feroz by issuing an Order to Show Cause on January 11, 1988. INS charged Feroz with being deportable under 8 U.S.C. §§ 1251(a)(11) for importation of heroin. At his hearing before the immigration Judge, Feroz conceded deportability, and requested permission to apply for political asylum under 8 U.S.C. § 1158(a)*fn1, and withholding of deportation under 8 U.S.C. § 1253(h)(1).*fn2
The immigration Judge found that Feroz's conviction for heroin importation rendered him ineligible for both asylum and withholding of deportation, and ordered Feroz deported to Afghanistan. Feroz appealed the decision to the Board of Immigration Appeals ("BIA").
In September of 1992, the BIA dismissed Feroz's appeal, ruling that Feroz's conviction rendered him ineligible for asylum under 8 U.S.C. § 1158(d), which provides that "an alien who has been convicted of an aggravated felony . . . may not apply for or be granted asylum" under 8 U.S.C. § 1158(a) (1988 & Supp. 1992). The BIA further ruled that Feroz was ineligible for withholding of deportation under 8 U.S.C. § 1253(h)(2)(B) (1988 & Supp. 1992), which bars withholding of deportation relief to any alien who, "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States."
Feroz now contends that the BIA erred in applying sections 1158(d) and 1253(h)(2)(B) retroactively to bar his applications for asylum and withholding of deportation. He further contends that the BIA erred in applying section 1253(h)(2)(B), by failing to make separate determinations that Feroz was convicted of a particularly serious crime and posed a danger to the community.
A. The Application for Asylum
Section 1158(d) renders aliens convicted of aggravated felonies ineligible for asylum under section 1158(a). The term "aggravated felony," as defined in the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7342, 102 Stat. 4181, 4469-70 (1988), as amended by the Immigration Act of 1990, Pub. L. No. 101-649, § 501(a)(2), 104 Stat. 4978, 5048 (1990), includes "illicit trafficking in any controlled substance." Feroz concedes that he has been convicted of a crime involving narcotics trafficking.
No effective date is included in this definitional provision. Feroz contends that section 1158(d) should not apply to aggravated felony convictions, such as his, that were entered prior to the enactment of the Anti-Drug Abuse Act of 1988. Whether section 1158(d) should apply retroactively is a question that has yet to be resolved directly in this circuit. However, we believe that Congress has made clear its intentions in this regard.
In 1991, Congress amended the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) ("the Act"), by enacting the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-232, 105 Stat. 1733, 1751 (1991) ("Technical Amendments"). Among other things, the Technical Amendments ...