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Matter of M-H-

This case clarifies the law regarding the particularly serious crime (PSC) bar to asylum and withholding of removal for cases arising in the jurisdiction of the Third Circuit Court of Appeals.

In Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006), the Third Circuit held that an offense must be an aggravated felony to be a PSC for purposes of withholding of removal. However, the Board reached the opposite conclusion the following year in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). Four federal circuit courts, including the Ninth, have deferred to N-A-M- after finding ambiguity in the statutory language of the PSC-bar to withholding.

In this case, the Board considered the question whether it would continue to follow Alaka in cases arising within the Third Circuit. The answer is no: the Board concluded that because the Third Circuit did not hold in Alaka that the statutory language in section 241(b)(3)(B) is ambiguous, the circuit court is required to defer to the Board’s interpretation of the statute in N-A-M-. Thus, in all circuits, an individual need not have been convicted of an aggravated felony to be subject to the PSC-bars for asylum and withholding of removal.