JUAREZ

19 I. & N. Dec. 664

• Court: Board of Immigration Appeals
• Decided: July 1, 1988
• Docket: ID 3066
• Status: Published

Opinion

Interim Decision *M66

MAl 1ER OF JUAREZ

In Deportation Proceedings

A-27582484

Decided by Board April 29, .1988

Except possibly under unusual circumstances not present here, a single conviction for a misdemeanor offense is not a "particularly serious crime" within the scope of section 243(h)(2)(B) of the Trnmi- gration and Nationality Act, 8 U.S.C. § 1253(h)(2)(B) (1982). CHARGE: Order: Act of 1952—Sec. 241(aX2) [8 U.S.C. § 1251(aX2)]—Entered without impac- tion ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: William Drysdale, Esquire Beverley Phillips 1918 Lake Shore Avenue, Suite 65 General Attorney Oakland, California 94606

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated May 5, 1987, an immigration judge found the respondent deportable as charged under section 241(aX2) of the Im- migration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), denied his requests for asylum and withholding of deportation under sec- tions 208(a) and 248(h) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1982), and ordered him deported to Guatemala_ The respondent has appealed. The record will be remanded. The respondent is a 32-year-old native and citizen of Guatemala who entered the United States near San Ysidro, California, in June 1983 without inspection. The record reflects that the respondent was convicted upon a plea of guilty in the Municipal Court of the City and County of San Francisco, State of California, on July 31, 1985, of a misdemeanor offense of assault upon. another with a deadly weapon. He was sentenced to 4 days' time served, 6 months' suspended sentence, and 2 years' probation.

664 Interim Decision 4t3066

Concluding that the respondent's 1985 misdemeanor conviction was for a "particii arly serious crime" and that he therefore was statutorily ineligible for asylum and withholding of deportation, the iramigraticm judge declined to take the testimony of the re- spondent or any other witness and pretermitted further consider- ation of the requested relief. We do not agree with the immigration judge's conclusions. Except possibly under unusual circumstances not present here, we would not find a single conviction for a misde- meanor offense to be a "particularly serious crime" within the scope of section 243(h)(2)(B) of the Act. Ordinarily an alien seeking athniRsion as a refugee should be pro- vided an opportunity to request asylum and withholding of depor- tation. See 8 C.F_R. §§ 208.10, 236.3(a) (1988); Matter of Saban, 18 I&N Dec. 70 (131A 1981). We recognize that the right to request asylum or withholding of deportation generally carries with it the incidental right to be heard on the application, absent statutory in- eligibility for the requested relief. 8 C.F.R. §§ 208.3, 208.10(a) (1988). Under the facts of this case we are satisfied that the respondent was not provided an adequate opportunity to have his requests for asylum and withholding of deportation considered. Accordingly, we will remand the record to the immigration judge for further pro- ceedings to afford the respondent that opportunitY. ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion and the entry of a new decision.