Pechenkov v. Holder

8 C.F.R. § 208.24(a)(2) is constitutional because it simply implements Congress's intent as expressed under 8 U.S.C. § 1158(c)(2) that an alien who has been granted asylum may have that status revoked after committing a serious crime, regardless of an application for withholding of removal.

Petitioner Pechenkov sought review of a decision of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) denial of his application for withholding of removal, arguing that the BIA abused its discretion in ruling that he was ineligible for withholding of removal because he had been convicted of a “particularly serious crime” within the meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). Petitioner also raised a constitutional challenge to the legal provisions precluding adjustment of his immigration status because his asylee status was revoked improperly, under a regulation that purportedly contradicted relevant statutory authority.
The Court of Appeals dismissed, for lack of jurisdiction, the challenge to the “particularly serious crime” determination, and denied the petition regarding the application to adjust status. Previously, Pechenkov was granted asylum, but then was convicted of felony assault. He filed an application to adjust his status to lawful permanent resident, which was denied. Pechenkov’s asylee status was also revoked, and removal proceedings were commenced, to which petitioner applied for withholding of removal. “In addressing Petitioner’s withholding of removal application, the IJ noted that 8 U.S.C. § 1231(b)(3), which provides for withholding of removal, does not apply to an alien who, ‘having been convicted by a final judgment of a particularly serious crime’.” The Court noted that the Petitioner did not raise a constitutional question concerning the “particularly serious crime” determination, but merely requested a “re-weighing of the factors involved.” Jurisdiction over this petition was stripped by provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Reviewing the constitutional arguments de novo, the Court noted that 8 C.F.R. § 208.24(a)(2) simply incorporates relevant statutory authority under 8 U.S.C. § 1158(c)(2) that states when the immigration authority may terminate a grant of asylum. DISMISSED in part; DENIED in part.