A Statute in Particularly Serious Need of Reinterpretation: The Particularly Serious Crime Exception to Withholding of Removal

Abstract

Withholding of removal provides that a deportable alien may avoid removal if she can show that it is more likely than not that her life or freedom will be threatened if she is removed to a particular country. Aliens are not eligible for withholding of removal, however, if they are found to have been convicted of a particularly serious crime as defined by 8 U.S.C. § 1231(b)(3)(B)(ii). Although Congress provided a per se definition of a particularly serious crime in the statute, the majority of U.S. courts of appeals have held that immigration judges can also declare crimes that do not fit this statutory definition to be particularly serious. This Note argues that the majority interpretation is incorrect and that the minority interpretation, which only allow crimes that fit the statutory definition to be declared particularly serious, is correct. This Note additionally argues that a further finding that an alien poses an ongoing danger to the community should be required before an alien is denied withholding of removal.