

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit

                                         

Nos. 96-1446, 97-1552

                         RAN CHOEUM,

                         Petitioner,

                              v.

           IMMIGRATION AND NATURALIZATION SERVICE,

                         Respondent.

                                         

        ON PETITION FOR REVIEW OF FINAL ORDERS OF THE
                 BOARD OF IMMIGRATION APPEALS

                                         

                            Before

                    Torruella, Chief Judge,                                                      
                 Bownes, Senior Circuit Judge,                                                         
                  and Lynch, Circuit Judge.                                                      

                                         

Richelle S. Kennedy, with whom Steven W. Hansen and Bingham,  Dana                                                                              
&amp; Gould LLP were on brief, for petitioner.                   
David V. Bernal, Senior Litigation  Counsel, Office of Immigration                           
Litigation, Civil Division, Department of Justice, with whom Philemina                                                                              
McNeill  Jones,   Assistant  Director,  and  Frank  Hunger,  Assistant                                                                  
Attorney General,  Civil Division,    Department of  Justice, were  on
brief, for respondent.
                                         

                       November 5, 1997
                                         

          LYNCH, Circuit  Judge.   The difficulty  of wending                      LYNCH, Circuit  Judge.                                           

through this country's immigration laws -- for the immigrants

involved, for  the courts, and even for  the federal agencies

charged with  enforcing the  laws --  is illustrated  by this

case.    For  the  courts,  what  is  involved   is  properly

ascertaining congressional intent in  light of constitutional

guarantees   in  decision  of  cases.    For  this  Cambodian

immigrant, Ran Choeum, what  is involved is whether she  will

be deported, possibly  back to  that war-torn  land she  left

when  she was  a child.    She petitions  for  review of  two

decisions  of the Board  of Immigration Appeals  ("BIA"), one

dated February 9,  1996, denying her applications  for asylum

and withholding and  for discretionary waiver, and  one dated

April 22, 1997, denying her motions to reopen.

          In the  interim, the complexity of  the immigration

laws was  enhanced by two new  statutes.  On April  24, 1996,

the  Antiterrorism and Effective  Death Penalty Act,  Pub. L.

104-132, 110  Stat. 1214  (1996) ("AEDPA"),  was signed  into

law.   On September 30, 1996,  (the same day Choeum  moved to

reopen before  the BIA)  the Illegal  Immigration Reform  and

Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009

(1996)  ("IIRIRA"), was  signed  into  law.    Both  statutes

contain jurisdiction-stripping  provisions removing  from the

federal circuit courts of appeals their previous jurisdiction

over certain categories of final orders of deportation.

                             -2-                                          2

          This case was originally argued on May 9, 1997.  In

a decision dated July 2, 1997, we upheld the decisions of the

BIA  on reasoning which rejected particular arguments by both

sides.    Each party  filed  petitions  for rehearing.    The

Immigration  and   Naturalization  Service   (INS),  in   its

rehearing petition, for  the first time raised a new argument

that this court lacked jurisdiction to review both of the BIA

orders because  AEDPA   440(a)  precludes  jurisdiction  over

deportations for "aggravated felonies" under IIRIRA   321.  

          It  would have been  vastly preferable,  of course,

for the  INS to  have asserted  this jurisdictional  argument

initially,  and we have  some concern about  the government's

burdening of  immigrants with  the obligation  to respond  to

new-found statutory interpretations  by the INS after  a case

has  been heard and decided.1  Nonetheless, because rehearing

was timely sought and parties may not waive issues of subject

matter jurisdiction,2  we  granted  rehearing  on  particular

issues.  We withdraw our  earlier opinion and restate in this

opinion   those  of  our  earlier  conclusions  which  remain

                                                    

1.  In another sense,  however, Choeum is the  beneficiary of
the  government's  shifting  position.   Because  mandate has
never issued, and because Choeum has not been deported during
the pendency of this  appeal, the effect of the  government's
delay in making  its new jurisdictional argument  has been to
delay Choeum's deportation.

2.  See United States v. Baucum,  80 F.3d 539, 541 (D.C. Cir.                                           
1996); Michigan Employment Security Comm'n v. Wolverine Radio                                                                         
Co., Inc.,  930 F.2d 1132,  1137-38 (6th Cir.  1991); Escobar                                                                         
Ruiz v. INS, 813 F.2d 283, 286 n.3 (9th Cir. 1987).                       

                             -3-                                          3

pertinent.  We  conclude that we have jurisdiction  to review

the  first decision of  the BIA, which  requires deportation,

and sustain that decision on its merits.  We conclude that we

lack  jurisdiction  over  the  second  BIA  decision, denying

Choeum's petition to reopen.

                              I.

          Ran  Choeum, an  immigrant  from Cambodia,  pleaded

guilty in  New York  state court to  charges of  burglary and

kidnapping.    The  charges stemmed  from  a  crime in  which

Choeum's boyfriend,  seeking  to settle  a family  grievance,

murdered  two  elderly  relatives  of  his  sister's  fianc .

Choeum,  who left  the scene before  the murders  took place,

pleaded guilty to burglary and kidnapping in order to avoid a

possible  murder conviction  under  the  felony murder  rule.

While Choeum  was in prison, deportation  proceedings against

her commenced. 

          Choeum seeks review of the BIA order of deportation

of  April  24, 1996.    She  argues  that AEDPA  changes  the

standard for  determining whether  an alien  is eligible  for

withholding  of  deportation.    She  also  argues  that  the

Attorney General's regulation under which her application for

asylum  was denied  exceeds the  authority  delegated to  the

Attorney General by Congress.  Finally, she contends that the

BIA  abused   its  discretion   in  failing   to  grant   her

discretionary relief  from deportation.   She also  petitions

                             -4-                                          4

for review of  the BIA's decision of April  22, 1997, denying

her motion to reopen.

          The  INS, for its  part, argues that,  under AEDPA,

this court  lacks jurisdiction to  review Choeum's petitions.

The  jurisdictional argument comes in two  parts.  First, the

INS argues that  this court has  no jurisdiction over  either

petition  for  review  because  AEDPA    440(a),  8  U.S.C.  

1105a(a)(10),  removes  jurisdiction  over  deportations  for

"aggravated felonies" as that term is more broadly defined in

IIRIRA    321(a), 8  U.S.C.   1101(a)(43).   In light  of the

effective date  provided in  IIRIRA   321(c),  we agree  that

there  is no  jurisdiction over the  second petition  on this

ground, but the first petition survives this attack.  Second,

the INS argues there is  still no jurisdiction over the first

petition for review because she is an alien who has committed

a  firearms offense under  8 U.S.C.   1251(a)(2)(C),  in this

case, burglary,  and AEDPA   440(a) does not permit review of

deportations based on  such grounds.   We hold that  judicial

review  remains available  because in the  agency deportation

proceedings, Choeum was charged with deportability based only

on  her  kidnapping  offense,  which  is  a  crime  of  moral

turpitude under 8  U.S.C.   1251(a)(2)(A)(i), and not  with a

firearms offense. 

          We further  hold that  the INS  may not  substitute

alternative  grounds for  deportation at  this  stage in  the

                             -5-                                          5

proceedings, and that its argument  fails both as a matter of

statutory  construction  and because  it  raises  due process

concerns under the  Constitution.  Therefore, AEDPA  does not

deprive this  court of  jurisdiction to  hear Choeum's  first

petition.    Choeum's legal  arguments,  however, while  ably

made, do not convince us that the BIA erred in denying Choeum

the various forms of relief  sought.  Accordingly, the  BIA's

decision is affirmed.

                             II.

          Ran Choeum was born in a small Cambodian village in

1969.    She was  one of  twelve children;  her father  was a

soldier and her mother supported the family by rice  farming.

In 1973,  her father  was killed.   The  Khmer Rouge came  to

power  in the  area  in 1975,  and  Choeum's mother,  fearing

retaliation for her husband's  military activities, fled with

her  children to another  village.   Choeum's mother  died in

1978  of starvation  and illness.   In 1979,  Choeum's oldest

sister  brought  Choeum  and  two  other  sisters,  the  only

surviving members  of  the  family,  to  a  refugee  camp  in

Thailand;  they lived  in  various camps  for  the next  five

years.

          On  March 27,  1985, Choeum  and  her sisters  were

admitted  to the United States as  refugees; Choeum was later

granted permanent resident status, retroactive to  that date.

The  Choeums'  sponsors  helped them  to  obtain  welfare and

                             -6-                                          6

housing.  Choeum, who was fifteen at the time, had never been

to school in  Cambodia and spoke no English.   Choeum briefly

attended high school  in Brooklyn, but  dropped out when  she

became pregnant by her boyfriend, a Cambodian immigrant named

Lak Ling.   Choeum's son Wicky  was born on January  2, 1987.

At   Lak  Ling's  request,  Choeum   and  her  son  moved  to

Philadelphia to live with his relatives.

          In  June  1988,  Lak  Ling,  Choeum  and  the  baby

travelled to New  York for Ling's sister's  engagement party.

When they arrived at Ling's parents' house, they learned that

the sister, who was only  fourteen, and her fianc , a twenty-

eight year old  Cambodian man, had  disappeared and that  the

fianc 's family  had not  paid the  $2,000 dowry  owed Ling's

family.  

          The next night,  June 5, Choeum went outside to buy

ice  cream for her  son.  She  saw Ling  in a car  with three

Chinese  men she did not  know.  Ling told her  to get in the

car,  and told  her that they  were going to  get his sister.

When they arrived at a large apartment house on Ocean Avenue,

Brooklyn,  they all  went upstairs  and Ling  told Choeum  to

knock on  the door  of  the apartment  where Ling's  sister's

fianc 's  parents lived.   No  one answered.   After  driving

around, they  returned  to  the  house and  the  Chinese  men

knocked on the  door.  One  of the men  was carrying a  paper

bag.

                             -7-                                          7

          This time, the  door was opened.  The  men went in,

and Choeum  followed.   The Chinese  men began  searching the

apartment,  while  Ling  talked  to  his   sister's  fianc 's

parents. The Chinese men began piling up money and jewelry on

the floor in  front of the parents.   One of the  Chinese men

brought two young  children into the  room.  Ling  instructed

them to tie the children up.  Ling assured Choeum that he was

just  trying to  scare the  parents into revealing  where his

sister was.  The men  brought the children into another room,

took  out a  knife, cut  the  telephone cord,  and bound  the

children  with it.   One  of  the children  says that  Choeum

helped  tie up  the children  and put  tape on  their mouths.

According to Choeum, she merely watched, and then she noticed

that her  boyfriend was holding  a gun.  Choeum  asserts that

she became scared, went back  into the other room, and untied

the  children; the Immigration Judge, however, did not credit

this testimony.  One of the men yelled at her to get out when

he saw her near the children.   All four men then screamed at

Choeum to leave  and wait in the  car.  She went  outside and

waited.   When the  men returned to  the car  fifteen minutes

later, she  asked if anything had happened;  Ling assured her

that everything was fine.  Choeum returned to Ling's parents'

house.

          The next morning, Choeum was arrested.  It was then

that  she learned  that the  two adults  at the  Ocean Avenue

                             -8-                                          8

apartment had been murdered.   She was charged with a variety

of crimes,  but agreed  to cooperate with  the police  and to

help them find  Ling.  Facing  a possible murder  conviction,

Choeum pleaded guilty  to kidnapping in the  third degree and

burglary  in the  first degree,  with  a three  to nine  year

sentence.

          While   in   prison,  Choeum   received   favorable

performance assessments, particularly from her teachers.  She

made rapid progress in English, and came close to achieving a

GED  despite her complete  lack of formal  education.  Choeum

was  released  in  September  1991.   She  moved  to  Lowell,

Massachusetts  to live with  her sisters and  their children.

She enrolled in  job training programs, eventually  finding a

manufacturing  job.   The social  services professionals  who

worked with her  were impressed by her eagerness  to work and

to improve herself.

          In 1993,  Choeum gave birth to a second son, David.

David's father left her after  she became pregnant and has no

contact with  his son.  Choeum  quit her job when  she became

pregnant  with David, and  receives welfare and  food stamps.

Choeum still resides  near her sisters  in Lowell, and  helps

them,  as  none of  the  others  are proficient  in  English.

Choeum's older  son, Wicky,  lives in  Philadelphia with  Lak

Ling's parents,  who gained  custody of  him during  Choeum's

imprisonment.  Choeum does not see Wicky often, but speaks to

                             -9-                                          9

him monthly on the phone.  Choeum asserts in her most  recent

affidavit that she is  pregnant with a third child.  She also

asserts that,  because she fears for their  safety, she would

leave Wicky and David in this country were she to be deported

to Cambodia.

                             III.

          Deportation  proceedings  were   initiated  against

Choeum with the issuance of an Order to Show Cause ("OSC") on

September   18,  1990.     The   OSC   charged  Choeum   with

deportability pursuant to the then-current version of Section

241(a)(4)3 of the Immigration and Nationality Act ("INA"), in

that she  had been  convicted of a  crime of  moral turpitude

committed  within five  years after  entry  and sentenced  to

imprisonment  for a year  or more.   The OSC  stated that the

crime of  moral turpitude  was kidnapping.   The OSC  did not

refer to Choeum's  burglary conviction either in  the factual

allegations or in the grounds for deportability.

          In her responsive pleadings, filed March 31,  1992,

Choeum  admitted the  factual  allegations  in  the  OSC  and

conceded  deportability  as  charged.   She  also  sought the

opportunity to apply for  asylum, withholding of deportation,

and  waiver  of  deportability pursuant  to  INA    212(c), 8

U.S.C.   1182(c).

                                                    

3.  The  section has been  amended several times  since then;
the   current   version   of   the   provision   is   Section
241(a)(2)(A)(i), 8 U.S.C.   1251(a)(2)(A)(i).

                             -10-                                          10

          A hearing was  held before an Immigration  Judge on

August  7, 1992.   The  facts and  circumstances of  Choeum's

crime were  fully  explored, including  through testimony  by

Choeum's  defense attorney.  The Immigration Judge denied her

applications  for asylum  under  INA    208(a),  8  U.S.C.   

1158(a),  and   for  withholding  of  deportation  under  INA

  243(h),  8  U.S.C.     1253(h), on  the  grounds  that such

applications  must  be  denied  if  the  alien,  having  been

convicted  of  a  particularly serious  crime  in  the United

States,  constitutes  a   danger  to  the  community.     The

Immigration  Judge  found  that, based  on  all  the evidence

concerning Choeum's burglary and  kidnapping convictions, she

had "in fact been convicted of a particularly serious crime."

He noted that the BIA has interpreted the  statutory language

to mean  that an  alien convicted  of a particularly  serious

crime  necessarily  constitutes a  danger  to  the community.

Therefore, he  ruled, Choeum was  not eligible for  asylum or

withholding of deportation.

          Regarding Choeum's application  for a discretionary

waiver under INA   212(c), the Immigration Judge engaged in a

careful balancing  of the  equities.   Going through  factors

identified as significant  by the BIA, the  Immigration Judge

found that Choeum's separation from Wicky and her sisters and

the conditions  in  Cambodia were  significant  factors,  but

those  facts  did  not overcome  the  egregious  and horrible

                             -11-                                          11

nature  of her  crime.    On this  ground,  the Judge  denied

Choeum's application for discretionary waiver as well. 

          Choeum  appealed the decision  to the  BIA, arguing

that the  equities, including the  birth of her  second child

after   the  hearing,  warranted  an  exercise  of  favorable

discretion under INA   212(c), and that the Immigration Judge

should have made a separate determination that Choeum posed a

danger to the  community before denying her  applications for

asylum and withholding of  deportation.  In a  decision dated

February   9,  1996,  the   BIA  dismissed  Choeum's  appeal,

reaffirming its view that an  alien who has been convicted of

a particularly serious crime necessarily constitutes a danger

to  the  community  and  is  ineligible  for  withholding  of

deportation  and asylum.    The BIA  further  found that  the

Immigration   Judge   gave   proper   consideration  to   the

discretionary factors in denying Choeum's request for Section

212(c) relief.

          AEDPA  was signed  into  law  on  April  24,  1996.

Choeum's petition for review was filed with this court on May

9, 1996.   On September 30,  1996, Choeum filed  a motion  to

reopen with the BIA, based on new evidence, particularly  the

birth of David and  the expectation of a third child,  and on

the argument that AEDPA   413(f), 8 U.S.C.   1253(h), removed

the bar to withholding of deportation for aliens convicted of

particularly  serious crimes.  The BIA denied Choeum's motion

                             -12-                                          12

to reopen  on  April  22,  1997,  finding  that  under  AEDPA

  440(d),  Choeum  was  now  statutorily ineligible  for  INA

  212(c)  relief, and rejecting  her interpretation  of AEDPA

  413(f).    Choeum  has  asked this  court  to  review  this

decision as well.

                             IV.

A.  Jurisdiction:  The Effective Date of IIRIRA   321(c)                                                                    

          Correctly pointing out that  Congress in the IIRIRA

expanded  the   definition  of   "aggravated  felonies"   and

precluded  judicial review  over deportations  for aggravated

felonies, the INS  argues this court lacks  jurisdiction over

both petitions.  Because we agree that kidnapping, the  basis

for  the order deporting  Choeum is an  "aggravated felony,"4

the decisive question has to do with when this new definition

became effective and  the application of that  effective date

to the facts of this case.

          IIRIRA    321(c) establishes  the "effective  date"

after  which these  definitions  of "aggravated  felony"  are

binding:

                                                    

4.  Under IIRIRA   321(a), an "aggravated felony" is "a crime
of violence (as defined  in section 16  of Title 18, but  not
including a purely political  offense) for which the term  of
imprisonment at least one year." 8 U.S.C.   1101(a)(43)(F). A
"crime of violence" is defined as  "an offense that has as an
element the use, attempted use, or threatened use of physical
force against the  person or property of another."  18 U.S.C.
  16(a).  Because  kidnapping satisfies the terms of 8 U.S.C.
  16(a)  and Choeum's term of imprisonment exceeded one year,
Choeum committed an aggravated felony under IIRIRA  321(a).  

                             -13-                                          13

          The amendments made by this section shall
          apply  to actions  taken on or  after the                                              
          date  of  the  enactment  of  this   Act,
          regardless   of   when   the   conviction
          occurred . . . .

IIRIRA   321(c) (emphasis added).   The IIRIRA was enacted on

September 30,  1996, so federal  courts may not  hear appeals

from "actions taken" regarding  final orders for  deportation

occurring  after September  30,  1996  where  the  basis  for

deportation is  commission (at  any time)  of an  "aggravated

felony."

          IIRIRA    321(c)  does not  itself define  "actions

taken."   Neither  of  the  interpretations  offered  by  the

parties  appear appropriate.   Choeum  argues  that the  most

sensible  interpretation of "actions taken" is that it refers

to  immigration proceedings  brought  against the  immigrant.

Choeum  thus  characterizes  "actions"   in  the  immigration

context as analogous to a civil action.  Choeum cites Black's                                           

Law  Dictionary in support of this proposition, that "action"

should be defined in its  "usual sense" as a "lawsuit brought

in court" --  i.e., the filing of the complaint.   Under this                              

definition,  "actions taken"  would  refer  only  to  removal

proceedings  begun   after  September   30,  1996,   with  no                              

retroactive  application to  pending  proceedings.   The  INS

began removal proceedings against Choeum in 1990.

          The  INS  argues  that  "actions  taken" means  any                                                                         

action  taken  regarding  the  case  constitutes  an  "action

                             -14-                                          14

taken."   The  INS argues  that  judicial review  is such  an

action.  Thus,  this court's exercising of  jurisdiction over

the  matter (by  hearing  the  case in  May,  1997), the  INS

argues, causes the court to be divested of jurisdiction.  The

INS relies for  support on a two page, per  curiam opinion in

Mendez-Morales v. INS,  119 F.3d 738  (8th Cir. 1997),  which                                 

decides that "[b]ecause  judicial review by this  court would

be an 'action taken' for purposes of IIRIRA   321(c), we have

no jurisdiction to hear [petitioner's] appeal."   Id. at 739.                                                                 

That court  did  not  explain  this  statement  nor  cite  to

authority.  As to the second petition, the INS says that this

court has no  jurisdiction because, in  any event, the  BIA's

denial of Choeum's  motion to reopen her  case constitutes an

"action taken" after  the September 30, 1996 date.   We agree

only with the latter argument.

          Both sides  present untenable definitions  in their

arguments.    It  is   not  obvious  that  "action"  in   the

immigration context does or  should have the same  meaning as

an  "action" in  the civil  context.   The  court of  appeals

review actions  by the  administrative agency in  deportation

cases  and Choeum attacks  four different actions  on review.

Choeum's position assumes  there can be only  one action, and

that is the  initial filing in a matter.   The INS's position

is also  flawed:  it  is unlikely Congress intended  the very

act  of exercising jurisdiction to trigger the destruction of

                             -15-                                          15

that  jurisdiction.  If Congress had intended to affect every

petition pending in a court,  there was much clearer language

available to  express such an  intent.  Neither does  it make

sense that federal jurisdiction should be dependent on when a

court  schedules a  hearing  on a  particular petition.   For

example, it seems  irrational that a federal court would have

jurisdiction over a matter if it heard  argument on September

29, 1996, but would not have jurisdiction if it postponed the                                        

argument until October 1, 1996.

          Valderrama-Fonseca  v. INS, 116  F.3d 853 (9th Cir.                                                

1997) is the only other  opinion we have found that considers

the definition of "actions taken" under IIRIRA   321(c).  The

facts are similar to this case.  The INS sought to  deport an

alien because  he had committed  burglary, a crime  of "moral

turpitude;" the INS then argued that AEDPA   440(a) precluded

judicial review of the final order of deportation because the

crime   was  also  an  "aggravated  felony"  under  8  U.S.C.

  1101(a)(43).   There  was  no  question  that  the  alien's

offense  would  constitute  an  "aggravated  felony"  if  the

revised  definition were  applicable  under IIRIRA    321(c);

hence  the precise issue upon which jurisdiction depended was

whether  an "action"  had been  "taken"  after September  30,

1996.

          The court  offered three  potential definitions  of

"actions taken."  "Actions taken" could refer  to: (l) orders

                             -16-                                          16

and decisions issued against an alien by the Attorney General

acting through the BIA or  Immigration Judge, (2) steps taken

by the alien, such as applying for discretionary relief,  (3)

to any action by  anyone, including a circuit court.   Id. at                                                                      

856.     The  court   did  not  consider   Choeum's  proposed

definition:  that  "actions taken" refers exclusively  to the

commencement of deportation proceedings against the alien.

          We largely  agree with  the holding  of Valderrama-                                                                         

Fonseca.  The third reading is improbable:  it makes no sense                   

that  federal  jurisdiction  should  be  based  on  the  oral

argument  calendar.  The  second definition is  plausible, as

IIRIRA     309(c)(4)(A)  refers to  an  "action  for judicial

review," which would be initiated by the client herself.  But

we need  not  decide the  issue on  the facts  of this  case.

Choeum filed  her first  petition for review  on May  9, 1996

well before the effective date.   The first definition is the

strongest and  most sensible:  that "actions taken" refers to

actions and decisions of  the Attorney General.   "This makes

logical and  practical sense,  as 'actions  taken' is  easily

understood  to  encompass things  done  by  an agency  to  an

alien." Id.  This interpretation is also consistent with  how                       

the  word "actions"  is used  in another  section of  the INA

limiting federal court  jurisdictional section of the  INA, 8

U.S.C.  1252(g):

          Except  as provided  in this  section and
          notwithstanding  any  other  provision of

                             -17-                                          17

          law, no court  shall have jurisdiction to
          hear any cause  or claim by or  on behalf
          of any alien arising from the decision or
          action   by  the   Attorney  General   to
          commence  proceedings,  adjudicate cases,
          or  execute  removal orders  against  any
          alien under this chapter.

          We conclude  that jurisdiction over  Choeum's first

petition is  not removed  by virtue of  AEDPA   440(a).   The

decision  of the immigration  judge and the  BIA's affirmance

all  occurred prior  to  October  1,  1996,  so  the  revised

"aggravated  felony" rules in  IIRIRA   321(a) do  not apply.

By  the same reasoning, this court does not have jurisdiction                                                       

over  Choeum's second petition,  because the BIA's  denial of

Choeum's motion  to reopen occurred on April  22, 1997, which

is   after  the   October  1,   1996   triggering  date   for                      

applicability of the  "aggravated felony" rules.   We dismiss

the second petition.

B.  Jurisdiction:  AEDPAand Basis for BIA's Deportation Order                                                                         

          The INS  also filed a  motion to dismiss  with this

court,  arguing  that  Section 440(a)  of  AEDPA,  apart from

IIRIRA,  deprives this  court of  jurisdiction  to hear  this

case.   That section  ousts the  jurisdiction of  the federal

courts  to review the  deportation petitions of,  among other

classes  of aliens, aliens  deportable by reason  of firearms

offenses  under 8 U.S.C.    1251(a)(2)(C).  The  INS contends

that  Choeum's  burglary  conviction  was  such  an  offense.

However,  at the  deportation proceedings,  the  INS did  not

                             -18-                                          18

assert  the burglary   offense  as  a basis  for deportation.

Instead, the INS  rested on the kidnapping  offense, although

the INS did not argue that the kidnapping was also a firearms

offense.   The  INS's argument  seems to  be that  because it

might have  sought to deport  Choeum based  on her  burglary-                 

firearms conviction, even though it  chose not to do so, this                                                          

court lacks jurisdiction to review Choeum's deportation based

upon her  kidnapping non-firearms offense because  this court

lacks   jurisdiction    over   a    burglary-firearms   based

deportation,  even  though   this  was  not  the   basis  for

deportation.

          Section 440(a) of AEDPA  amended Section 106(a)(10)

of the INA,  8 U.S.C.   1105a(a)(10),5 to  provide that final

orders of deportation  against aliens who are  "deportable by

reason  of  having  committed"   certain  types  of  criminal

offenses, including firearms offenses, "shall  not be subject

to review by  any court."  AEDPA   440(a), 110 Stat. at 1276-

77.    This  provision of  AEDPA  applies  to pending  cases.

                                                    

5.  Section 106 of  the INA, 8 U.S.C.   1105a was repealed by
   306(b) of  the Illegal  Immigration  Reform and  Immigrant
Responsibility Act of 1996, Pub.  L. 104-208, 110 Stat. 3009-
546  ("IIRIRA");  IIRIRA   substitutes  new  judicial  review
provisions. See IIRIRA    306(a), 8 U.S.C.    1252.  However,                           
this repeal applies only  to final orders of deportation  and
motions  to reopen  filed on  or after  April 1,  1997.   See                                                                         
IIRIRA    306(c), 309, 110 Stat. at 3009-612, 625, as amended                                                                         
by Pub. L. 104-302, 110 Stat. 3656 (Oct.  11, 1996)(technical              
amendment  clarifying  that  judicial  review  provisions  of
IIRIRA  are not  effective  upon  enactment).    IIRIRA  also
provides transitional rules for certain classes of cases, see                                                                         
infra.                 

                             -19-                                          19

Kolster  v. INS, 101  F.3d 785, 790  (1st Cir. 1996).   Under                           

AEDPA, judicial review  remains available to aliens  who have

committed  other types of offenses, including aliens who have

been convicted  of only  one crime of  moral turpitude.   See                                                                         

AEDPA   440(a); 8 U.S.C.   1251(a)(2)(A).  The  INS  contends

that the first degree burglary charge to which Choeum pleaded

guilty  was  a   firearms  offense  as  defined   by  Section

241(a)(2)(C) of the  INA, which renders deportable  any alien

who "is convicted  under any law  of  . .  . using . .  . any

weapon  . . .  which is a firearm  . . .  in violation of any

law."    8  U.S.C.     1251(a)(2)(C).    Therefore,  the  INS

contends,   Choeum  is   "deportable  by  reason   of  having

committed" a  firearms offense  and Section  440(a) of  AEDPA

deprives this court of jurisdiction to hear her petition.

          Choeum makes  two responses to the  INS's argument.

First, Choeum argues that she  was not, in fact, convicted of

a  firearms offense,  as her  plea colloquy reveals  that she

herself did not "use" a handgun.6  Second, Choeum points out,

                                                    

6.  Under New York law, a person is guilty of burglary in the
first  degree "when he knowingly enters or remains unlawfully
in a dwelling with intent to commit a crime therein, and when
in effecting entry  or while in the dwelling  or in immediate
flight therefrom, he or another participant in the crime:                                                                    
    1.  Is armed with explosives or a deadly weapon; or
    2.  Causes physical  injury to  any person  who is  not a
    participant in the crime; or 
    3.  Uses  or threatens the  immediate use of  a dangerous
    instrument; or 
    4.  Display what appears to be a pistol, revolver, rifle,
    shotgun, machine gun, or other firearm . . . ."
N.Y. Penal Law   140.30 (emphasis added).

                             -20-                                          20

correctly,  that  the  OSC  only  referenced  the  kidnapping

conviction.  

          It  is undisputed that  the burglary conviction was

not charged as a  basis for deportation in the  OSC, and that

Choeum's  concession of  deportability  only encompassed  the

grounds  charged  in the  OSC,  i.e.  that  she was  in  fact                                                

deportable because the  kidnapping conviction was a  crime of

moral  turpitude.   The  Immigration Judge  did,  as the  INS

points  out,  hear  extensive  testimony  on  the  nature  of

Choeum's  crime.   Notably, however,  he  did not  attempt to

determine whether Choeum had used a firearm, because that was

not an issue in the proceedings before him. 

          The INS's argument is essentially a linguistic one.

According  to the INS,  for purposes of  jurisdiction, aliens

"deportable by reason of"  having committed firearms offenses                       

are not only those aliens  who have been ordered deported for                                                                     

firearms  offenses,  but  also  those  aliens  who  could  be                                                                         

deported  for  that  reason.    As   a  matter  of  statutory

construction, that  argument  is  somewhat  illogical:    The

contested  phrase comes  from  Section  440(a)  of  AEDPA,  a

statutory  section  solely  concerned with  final  orders  of

deportation.   The  section therefore  applies,  by its  very

terms,  only  to  aliens  who  have  actually  been  adjudged

                                                    

    Thus, under  New York law,  Choeum could be convicted  of
burglary in the  first degree simply by virtue  of Ling's use
of the gun.

                             -21-                                          21

deportable.   It is  therefore highly doubtful  that, in that

context, Congress meant "deportable by reason of" to mean, as

the  INS would  have it,  "potentially  susceptible to  being

deported by reason of . . ."  

          The  reading of the  statute that the  INS proposes

also raises due  process concerns.   "It is well  established

that  the Fifth Amendment  entitles aliens to  due process of

law in  deportation proceedings."   Reno v. Flores,  507 U.S.                                                              

292, 306 (1993).  At the core  of these due process rights is

the  right to  notice of  the  nature of  the  charges and  a

meaningful opportunity  to be  heard.   See, e.g.,  Kwong Hai                                                                         

Chew v. Colding, 344 U.S. 590, 596-98 (1953); Kaczmarczyk  v.                                                                     

INS, 933 F.2d 588, 596 (7th Cir. 1991)(citing cases).                 

          We do  not need to  determine what  form of  notice

would be constitutionally required, because the statutory and

regulatory  scheme under  which  deportation proceedings  are

conducted  mandate  specific  procedures.    The  INA  itself

provides that, in deportation proceedings, written notice  --

referred to as  an order to show  cause -- shall be  given to

the  alien  specifying,  among other  things,  "[t]he charges

against the alien and the statutory provisions alleged to  be

have  been  violated."    8 U.S.C.     1252b(a)(1)(D).    INS

regulations permit  the INS  to lodge  additional charges  of

deportability  "at any  time  during  a  hearing"  before  an

Immigration Judge, but specifically state that these  charges

                             -22-                                          22

must be submitted in writing for service on the alien and for

entry into the record, that  the Immigration Judge shall read

the additional charges to the  alien and explain them to her,

and  that the  alien may  have a  reasonable time,  including

requesting a continuance,  to respond to  additional charges.

8 C.F.R.   242.16(d).  It is undisputed that the INS did not,

at  any time, reopen  deportation proceedings to  comply with

these statutory and regulatory formalities.

          In United States v. Hirsch, 308  F.2d 562 (9th Cir.                                                

1962), the BIA  had ordered petitioner deported on  the basis

of   crimes  which  were   admitted  into  evidence   at  his

deportation hearing, but which were never added to the  INS's

charge against him.  The  court found that this procedure not

only violated INS  regulations similar to the  ones discussed

above, but also  contravened basic notions of  procedural due

process:

          [A]t all pertinent  times, petitioner was
          entitled  to a  statement of  the charges
          against  him,  to  a   hearing  of  those
          charges, and to answer them. 
               Procedural due  process requires  no
          less, and such due process is required in
          such  a  hearing.    We  have  frequently
          commented upon the severity of the remedy
          of  deportation,   with  the   consequent
          requirement  that  prescribed  procedures
          must  be followed  for the  protection of
          the alien.   Surely being advised  of the
          charges  upon  which  the  proceeding  is
          based is fundamental to due process.

Id. at 566-67 (internal citations omitted).               

                             -23-                                          23

          Here the INS  is not actually attempting  to deport

the  petitioner  on  uncharged  grounds,   but  rather  using

uncharged grounds to cut off judicial review.  However,  this

court has  found that  even arguably  lesser deprivations  of

notice  and  the  opportunity  to  be  heard  "ran  afoul  of

petitioner's  procedural rights."   Gebremicheal  v.  INS, 10                                                                     

F.3d 28,  39 (1st Cir. 1993) (holding that BIA could not rely

on  extra-record facts  concerning human  rights in  Ethiopia

without  affording petitioner an opportunity to respond).  In

these  circumstances,  where  the  word  "deportable"  has  a

meaning that the context makes plain, and  the INS asks us to

choose a different  interpretation, we are influenced  by the

maxim  of statutory construction  that tells us  to interpret

statutes so as to avoid constitutional concerns.   See, e.g.,                                                                        

Frisby v. Schultz, 487 U.S. 474, 483 (1988); United States v.                                                                      

Three  Juveniles,  61  F.3d  86,  90 (1st  Cir.  1995).    We                            

therefore  reject  the  INS's  suggested  interpretation   of

Section 440(a)'s use of "deportable by reason of."     

          The  INS  suggests  that this  court  can  make the

necessary determination  that Choeum's offense was a firearms

offense,  implying that  briefing  and  argument before  this

court provide sufficient notice.   The INS points out that in

Kolster,  we  termed  deportability  "a  largely   mechanical                   

determination  based on facts  that can often  be objectively

ascertained."  101 F.3d at 789.  That description, of course,

                             -24-                                          24

assumes  that the necessary facts will be before the decision

maker.    Use  of  a  firearm  not  being  an  issue  in  the

proceedings below,  the record  before this  court cannot  be

considered complete and  the INS argument fails  on pragmatic

grounds.7  More importantly, it is not the institutional role

of this  court to serve  as a factfinding  body on  issues of

first impression.  

          We  hold that the  INS cannot, consistent  with due

process  and  the   statutory  and  regulatory   requirements

governing its  own  proceedings, substitute  new grounds  for

deportation at this stage in  the proceedings, solely for the

purposes  of depriving  the federal courts  of jurisdiction.8

                                                    

7.  The INS draws our attention to Yang v. INS, 109 F.3d 1185                                                          
(7th  Cir.  1997).   In that  case, petitioner  contested the
administrative  finding that he  was deportable by  reason of
having committed  certain crimes,  crimes which  would render
him  ineligible,  under  AEDPA, for  judicial  review  of his
deportation  order.   The Seventh  Circuit  asserted that  "a
court  has   jurisdiction  to   determine   whether  it   has
jurisdiction" and reviewed  the record to see if  the law had
been  properly applied  to petitioner's  case.  Id.  at 1192.                                                               
That  situation, where the  court reviews  the administrative
record to determine if the  law has been correctly applied to
petitioner's  case, is not  analogous to the  situation here,
where the  question to be  answered was not addressed  in the
proceedings below.

8.  To the extent that Abdel-Razek  v. INS, 114 F.3d 831 (9th                                                      
Cir. 1997), takes a different position on this issue, we find
it unpersuasive.   But  we do  not  believe that  Abdel-Razek                                                                         
really  conflicts  with  our  conclusion.    Abdel-Razek, and                                                                    
Mendez-Morales v. INS,  119 F.3d 738  (9th Cir. 1997),  which                                 
the INS also  cites, both involve aliens who  had committed a
single  crime which was  the sole basis  for their respective
deportations,  and  the  issue  was  whether  the  INS  could
substitute  one ground for deportation, i.e., commission of a                                                        
crime  of moral turpitude,  for another, i.e.,  an aggravated                                                         

                             -25-                                          25

We  therefore  need  not determine  whether  or  not Choeum's

conviction for  burglary in  the first  degree constitutes  a

firearms offense.  We turn to Choeum's claims of legal error,

based on the grounds on which the INS actually proceeded. 

                              V.

          Choeum appeals the  February 9, 1996 denial  of her

applications  for   three  separate  types  of   relief  from

deportation:  (1) withholding  of  deportation under  Section

243(h) of the  INA, 8 U.S.C.    1253(h); (2)  asylum under  8

U.S.C.   1158;9 and (3) discretionary waiver of deportability

under Section 212(c)  of the INA, 8  U.S.C.   1182(c).10   We

address each of these claims in turn.

                                                    

felony.   This  a different  situation  than we  have in  the
present  case,  where  Choeum  had  committed  two  different
crimes, and the INS wishes to use one crime as the  basis for
deportation but then the other crime as the basis for denying                                          
this  court jurisdiction.  By citing Abdel-Razek as authority                                                            
that  opposes this  conclusion, the  INS  confuses the  legal
grounds for deportation with its underlying factual basis.

9.  Withholding of deportation and asylum are similar in that
both offer relief from deportation based on the likelihood of
persecution  in the alien's home country.   Asylum requires a
greater showing  than withholding,  and carries  with it  the
entitlement  to  become  a  lawful  permanent  resident,  and
eventually a citizen.   Withholding, on the  other hand, does
not  give the  alien the  automatic  right to  remain in  the
United States;  the alien  may still be  deported to  a third
country in  which she would not face persecution.  See INS v.                                                                      
Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987).                           

10.  Section  212(c),  by  its  express  terms,  permits  the
Attorney  General  to   waive  the  exclusion  of   otherwise
excludable aliens; a longstanding interpretation extends this
discretionary  authority   to  the  waiver   of  deportation.
Kolster, 101 F.3d at 787.                   

                             -26-                                          26

A. Withholding of Deportation                                         

          Choeum's  argument with  regard  to withholding  of

deportation  again  requires  us to  consider  the  effect of

AEDPA's  amendments   to  the  immigration   laws.    Section

243(h)(1) of the INA, 8 U.S.C.   1253(h)(1), provides that:

          The Attorney General shall  not deport or
          return any  alien . .  . to a  country if
          the Attorney General determines that such
          alien's   life   or  freedom   would   be
          threatened in such country on account  of
          race,  religion, nationality,  membership
          in   a   particular  social   group,   or
          political opinion.

An alien who meets this standard of eligibility, and who does

not   fall  under  a  statutory  exception,  is  entitled  to                                                                     

withholding  of  deportation; the  Attorney General  does not

have discretion  in  Section 243(h)  proceedings.    Cardoza-                                                                         

Fonseca,  480 U.S. at  429.  However,  Section 243(h)(2) does                   

enumerate several classes of aliens to whom Section 243(h)(1)

does not apply.   8 U.S.C.   1253(h)(2).  One  such exception

is  where  "the  alien,  having been  convicted  by  a  final

judgment  of  a  particularly serious  crime,  constitutes  a

danger to  the community  of the United  States." 8  U.S.C.  

1253(h)(2)(B)("the Particularly Serious Crime Exception").

          The BIA  has interpreted this  exception to require

only  a  determination   of  whether  an  alien's   crime  is

"particularly  serious";  according  to  the  BIA,  an  alien

convicted  of   a  particularly  serious   crime  necessarily

                             -27-                                          27

constitutes a danger to the  community.  See, e.g., Matter of                                                                         

K-, 20  I. &amp;  N. Dec. 418,  1991 WL 353530,  *3 (BIA  Nov. 5,              

1991);  Matter of Carballe,  19 I.  &amp; N.  Dec. 357,  360 (BIA                                      

1986)("The  phrase 'danger  to the  community' is  an aid  to

defining 'particularly  serious crime,'  not  a mandate  that

administrative agencies  or the  courts determine whether  an

alien  will  become  a  recidivist.").    This  court,  while

acknowledging that  there is "considerable logical  force" to

the argument that  the Particularly  Serious Crime  Exception

requires a  separate  determination of  dangerousness to  the

community,  has  upheld  the  agency's  interpretation  under

Chevron  U.S.A., Inc.  v. Natural Resources  Defense Council,                                                                         

Inc., 467 U.S. 837 (1984).  See Mosquera-Perez v. INS, 3 F.3d                                                                 

553 (1st Cir. 1993).

          The Immigration Judge here  made a specific finding

that Choeum's crime was a particularly serious one, and then,

applying the BIA interpretation of the  Exception, determined

that Choeum  was ineligible for  withholding of  deportation.

The BIA  similarly rejected  Choeum's argument  that she  was

entitled to a  separate determination of whether  she poses a

danger to the  community.  Were it not for AEDPA, that, under

Mosquera-Perez, would be the end of it.                          

          However,  in  Section  413(f)  of  AEDPA,  Congress

amended Section 243(h) of the INA to include a new subsection

(h)(3).  The new provision states, in relevant part:

                             -28-                                          28

          Notwithstanding  any  other  provision of
          law,  paragraph   (1)  [the   withholding
          provision] shall  apply to  any alien  if
          the Attorney  General determines,  in the
          discretion of the Attorney General, that
          . . .
          (B) the  application of paragraph  (1) to
          such   alien  is   necessary  to   ensure
          compliance with  the 1967  United Nations
          Protocol  Relating   to  the   Status  of
          Refugees.

8 U.S.C.   1253(h)(3).

          Choeum   argues  that,   by   directing  that   the

withholding   provisions   be  applied   so  as   to  "ensure

compliance" with the 1967 United Nations Protocol Relating to

the Status  of Refugees,  19 U.S.T.  6223, T.I.A.S.  No. 6577

(the  "Protocol"), "not  withstanding any other  provision of

law," Congress incorporated the  Protocol into United  States

statutory  law.    The Protocol,  Choeum  argues,  requires a

separate,  individualized  determination  that  the alien  is

currently a  danger  to the  community.   Thus, according  to                     

Choeum, Section  413(f)  of AEDPA  expressed a  congressional

intent to  reject the  BIA's rulings  that Section  243(h)(2)

requires  only  a  determination  that  the  alien  has  been

convicted of a particularly serious crime.11

                                                    

11.  The  INS initially argued  that Section 413(f)  of AEDPA
did  not apply  to  Choeum's case,  as  AEDPA Section  413(g)
instructed  that the amendments made by Section 413(f) should
apply only to  those applications on  which final action  had
not been  taken before the  date of  AEDPA's enactment,  i.e.                                                                         
April 30, 1996.  See AEDPA   413(g), 110 Stat. 1269-70.   The                                
BIA denied Choeum's application  for withholding on  February
9, 1996;  the INS  argued that this  - not judicial  review -
constituted "final action" on  Choeum's application, and that

                             -29-                                          29

          The  Protocol binds  its signatories  to compliance

with  the substantive provisions  of the 1951  United Nations

Convention Relating to  the Status of Refugees,  189 U.N.T.S.

150,  176 (1954),  19 U.S.T.  6259, 6278,  T.I.A.S. No.  6577

(1968)  (the "Convention").   Article 33.1 of  the Convention

prohibits  the   "refoulement"  --   the  forced  return   or

expulsion --  of a refugee  to territories where  his life or

freedom would be threatened on account of his race, religion,

nationality,  membership  in a  particular  social  group, or

political opinion.   Art. 33.1,  19 U.S.T. at 6276.   Article

33.2   of  the  Convention  provides  an  exception  to  this

principle of "nonrefoulement":

          The benefit of  the present provision may
          not, however, be claimed by a refugee for
          whom  there  are reasonable  grounds  for
          regarding as a danger to the security  of
          the  country  in  which he  is,  or  who,                                                               
          having been convicted by a final judgment                                                               
          of   a   particularly    serious   crime,                                                               
          constitutes a danger to  the community of                                                               
          that country.                                  

Art. 33.2, 19 U.S.T. at 6276(emphasis added).

          The  United States  statutory  law on  withholding,

including the  Particularly  Serious  Crime  Exception,  thus

closely mirrors the language of the Convention.  (This is not

surprising,  as  Congress,  when   it  enacted  the  relevant

provisions of Section  243(h) in 1980, specifically  intended

                                                    

Section 413(f) was therefore  inapplicable to Choeum's  case.
      We need not decide whether  the INS's interpretation  of
"final action" is the correct one.  

                             -30-                                          30

to  bring United States refugee law into conformance with the

Protocol.  See Cardoza-Fonseca, 480 U.S. at 436-37; Mosquera-                                                                         

Perez,  3  F.3d  at  556.)    As  the express  terms  of  the                 

Convention do  not differ  from those  of the  United States'

Particularly Serious Crime Exception, the explicit  reference

to the Protocol in AEDPA's Section 413(f) would not appear to

modify that Exception.

          Choeum   argues,  however,   that  Section   413(f)

expresses a congressional  intent to  incorporate the  United

Nations'   interpretation  of   the  Protocol's   withholding

provisions  into United States  immigration law.   She refers

this  court  to  an  advisory  opinion  on  AEDPA  issued  by

Representative Anne  Willem Bijleveld  of the United  Nations

High  Commissioner for  Refugees  ("UNHCR")  to the  American

Immigration Lawyers Association, and to the UNHCR Handbook on                                                                         

Procedures  and  Criteria   for  Determining  Refugee  Status                                                                         

(1979)("UNHCR Handbook").  

          Mr. Bijleveld's opinion takes the position that the

Protocol  requires a  signatory  state  to  make  a  separate

determination that the refugee it  seeks to expel is a danger

to the community.  The UNHCR Handbook, for its part, does not

unambiguously support Choeum's  position. The UNHCR Handbook,

while  requiring  an  individualized  determination  of   the

applicability of Article 33.2's exclusion clause, focusses on

the  definition of "serious non-political crime" and does not

                             -31-                                          31

explicitly  require a  separate dangerousness  determination.

See UNHCR Handbook, supra,    154-57, at 36-37.                                     

          The INS, in  contrast, points this court  to Matter                                                                         

of Q-T-M-T-, Interim Dec. 3300, 1996 WL 784581, *16 (BIA Dec.                       

21, 1996).  In Matter of  Q-T-M-T-, the BIA held that Section                                              

413(f)  of AEDPA  did not  require  a separate  dangerousness

determination:

          [W]e have consistently  held that neither
          the Convention  and Protocol  nor section
          243(h)(2)(B)  of   the  Act   requires  a
          separate   "dangerousness"  determination
          "focusing  on  the likelihood  of  future
          misconduct on the part of the alien." . .
          . [E]very  reviewing court  reaching this
          issue has sustained  our prior holding in
          this  regard.    Indeed,   in  1995,  the
          Attorney  General  issued   a  regulation
          adopting  this  construction  of  section
          243(h)(2)(B).          8     C.F.R.      
          208.16(c)(2)(ii)(1995).   Moreover, there
          is nothing in  the legislative history of
          either the AEDPA or the IIRIRA suggesting
          that Congress had any intent to  override
          this  well-settled  construction  of  the
          law.  And, particularly  in enacting  the
          IIRIRA, Congress reflected its ability to
          clearly  address and  override Board  and
          judicial constructions  of the  law which
          it  deemed erroneous.   Thus,  we do  not
          find our  ruling on  this  issue [to  be]
          affected by section 243(h)(3) of the Act.

Id.                 

          The INS further argues that the reason for enacting

Section  413(f) was  that AEDPA  expanded  the definition  of

"aggravated  felony"   to  include   crimes  that  might   be

considered less serious  than those the Protocol  intended to

cover in its exclusion clause.  Section 243(h)(2) of the INA,

                             -32-                                          32

8 U.S.C.   1253(h)(2), expressly states that, for withholding

purposes, "an alien  convicted of an aggravated  felony shall

be  considered  to  have  committed  a  particularly  serious

crime."  The INS contends  that AEDPA Section 413(f) was thus

intended  to preserve  the Attorney General's  flexibility in

assessing whether crimes now  defined as aggravated  felonies

were, in fact,  "particularly serious" within the  meaning of

the Protocol.

          In interpreting Section  413(f) of  AEDPA, we  must

first determine if the statutory language makes the intent of

Congress  clear and unambiguous; if the statute is ambiguous,

we   give  deference  to  the  BIA's  interpretation  of  the

immigration  laws, unless  that interpretation  is arbitrary,

capricious, or contrary to the statute.  Chevron, 467 U.S. at                                                             

842-45 (1984); Mosquera-Perez, 3 F.3d at 554.                                         

          The  plain language of  Section 413(f) is  not very

illuminating.   It  directs the  Attorney  General to  ensure

compliance with the Protocol,  yet as noted, the  language of

the  Protocol's  withholding   provisions  has  already  been

codified as United States statutory law.  Section 413(f) thus

appears, at first glance, to be surplusage.  The  legislative

history of AEDPA is similarly unhelpful.

          The import of Section 413(f) is thus ambiguous, and

we  turn to the agency  interpretation.  The reasoning behind

the BIA's interpretation  is fairly persuasive.   Congress is

                             -33-                                          33

presumed to be  aware of the BIA's  longstanding construction

of the Particularly  Serious Crime Exception.   See Mosquera-                                                                         

Perez, 3 F.3d at 559.  If  Section 413(f) of AEDPA were meant                 

to correct  that construction, Congress  certainly would have

done so in a less oblique fashion.  We also note that Section

413 of AEDPA, as a whole, is entitled "Denial of Other Relief

to Alien Terrorists," and that the legislation  shows few, if

any, indications of having  intended to expand the rights  of                                                          

criminal aliens.  In  this context, the INS's  explanation of

why Section 413(f) was enacted is certainly a reasonable one.

          In turn,  Choeum's arguments are  unpersuasive.  As

noted,  the UNHCR Handbook does not unambiguously support her

interpretation of the Protocol.  Moreover, the Supreme Court,

while acknowledging  that the  UNHCR Handbook  is "useful  in

giving  content   to  the   obligations  that   the  Protocol

establishes,"  expressly disclaimed  the suggestion  that the

Handbook had "the  force of law or in any way binds the INS."

Cardoza-Fonseca, 480 U.S. at 439 n.22.                             

          In  this context,  where the statute  is ambiguous,

and the  BIA has offered  a reasonable interpretation  of its

provisions, it would be improper for this court to substitute

the  advisory  opinion  of  an  international  body  for  the

reasoned judgment of the domestic  administrative agency with

primary   responsibility  for   administering  the   statute.

Accordingly,  we  find  that  the  interpretation  of Section

                             -34-                                          34

243(h)(2)(B)  and Section 243(h)(3) adopted by the BIA is not

unreasonable, arbitrary,  or  capricious.    Consequently,  a

separate inquiry into Choeum's dangerousness to the community

was not required.  See Mosquera-Perez, 3 F.3d at 559.  Choeum                                                 

was not eligible for withholding of deportation.

B. Asylum                     

          Choeum next argues that  the regulation under which

she  was deemed ineligible  for asylum exceeds  the authority

delegated to the Attorney General by Congress.  

          An  INS regulation  provides that:  "An application

for asylum shall  be denied if . . . [t]he alien, having been

convicted by a final judgment of a particularly serious crime

in the United States, constitutes a danger to the community .

. .  ."   8  C.F.R.    208.14(d)(1).12   This regulation  was

promulgated pursuant  to then-current  Section 208(a)  of the

INA, 8 U.S.C.   1158(a),13  which provided:

          The  Attorney General  shall establish  a
          procedure for an alien . . . to apply for
          asylum,  and  the  alien  may be  granted
          asylum in the discretion of the  Attorney

                                                    

12.  8  C.F.R.   208.14(d) previously  appeared at 8 C.F.R.  
208.14(c), and  is referred to  by its former  designation in
the administrative proceedings in this case, and in the cases
discussed herein.

13.  Section  604 of  IIRIRA, "Asylum  Reform," substantially
amends Section  208 of the  INA, 8  U.S.C.   1158.   However,
Section 604 of IIRIRA applies only to applications for asylum
filed on or  after April 1, 1997.   See IIRIRA    604(c), 110                                                   
Stat. 3009-694.    References  in this  opinion  are  to  the
earlier version of 8 U.S.C.    1158, which may be found at  8
U.S.C.A.   1158 (West 1996).

                             -35-                                          35

          General   if    the   Attorney    General
          determines that such  alien is a  refugee
          within the meaning of . . . this title.

          Choeum points out that, in 1990, the same year that

the challenged regulation was adopted, Congress enacted  what

was then 8 U.S.C.    1158(d), which provided that "[a]n alien

who has been convicted of an aggravated  felony . . . may not

apply for or be granted asylum."  8 U.S.C.   1158(d).  Choeum

argues that, by negative implication, Congress did not intend

a similar per  se bar  for aliens  convicted of  particularly                             

serious  crimes, and that  the Attorney General  exceeded the

authority delegated by Congress in  barring a larger class of

aliens than that barred by statute.

          The statute expressly  conferred broad authority on

the  Attorney General to  "establish a procedure"  for asylum

applications, and the  granting of asylum is  explicitly left

to the Attorney  General's discretion.  Under  Chevron, where                                                                  

Congress "explicitly left a gap  for the agency to fill," and

where there is  thus "an express  delegation of authority  to

the agency to  elucidate a specific provision of  the statute

by  regulation,"  we  should uphold a  gap-filling regulation

unless it  is "arbitrary, capricious, or  manifestly contrary

to the statute."  Chevron, 467 U.S. at 843-44.                                     

          The  Attorney General's  determination that  aliens

convicted of particularly serious crimes should be ineligible

for asylum is not unreasonable.   Applying Chevron, we do not                                                              

                             -36-                                          36

find that the regulation exceeds the broad grant of authority

conferred  by  the enabling  statute.   Accordingly, Choeum's

application for asylum was properly denied.  We note that the

two other circuits to have  considered the argument made here

by Choeum have also upheld  the regulation.  See Ahmetovic v.                                                                      

INS, 62 F.3d 48, 51  (2d Cir. 1995)(finding that Congress did               

not  intend  to  limit  agency's  power  to impose  a  higher

standard on asylum seekers);  Komarenko v. INS, 35 F.3d  432,                                                          

436 (9th Cir. 1994)(noting similarity of asylum regulation to

statutory   withholding  provisions   for  aliens   who  have

committed particularly serious crimes).14  

C. 212(c) Waiver                            

          Choeum  also  argues  that   the  BIA  abused   its

discretion  in  denying  her  application  for  a  waiver  of

deportation  under  Section 212(c)  of  the INA,  8  U.S.C.  

1182(c).

          The  BIA denied  Choeum's  application for  Section

212(c)  relief twice,  first  when affirming  the Immigration

Judge's  decision and again  when denying Choeum's  motion to

reopen.  We  consider only the first of these denials.  See 8                                                                       

U.S.C.   1105a(a)(6)("[W]henever a petitioner seeks review of

                                                    

14.   We also note that,  in the asylum provisions of IIRIRA,
Congress  has  made   aliens  who  have  been   convicted  of
particularly  serious  crimes  ineligible  for  asylum,   and
explicitly stated that  the Attorney General may  provide, by                      
regulation,  additional  limitations  and  conditions on  the
consideration of  an application for  asylum. See 8  U.S.C.                                                               
1158(b)(2)(A)(ii); 1158(d)(5)(B) (1997 version).

                             -37-                                          37

an order under  this section, any review sought  with respect

to a motion to  reopen or reconsider such  an order shall  be

consolidated with the review of the order.").15  

          We  only  have  jurisdiction  to  review  the BIA's

initial  denial of  Section  212(c)  relief.    Relief  under

Section 212(c) is  discretionary, and review by this court is

for abuse of discretion.  See, e.g., Hazzard v. INS, 951 F.2d                                                               

435,  438 (1st  Cir. 1991).   We  will uphold  such a  denial

unless  it  was   made  "without   a  rational   explanation,

inexplicably departed from established policies, or rested on

an impermissible basis."  Id.                                          

          Here,  the  BIA found  that  the Immigration  Judge

"gave proper consideration to the discretionary factors."  We

agree, and can find no abuse of discretion.    Choeum's crime

was, as  the Immigration Judge found,  profoundly disturbing.

Choeum   argues  that   the   Immigration  Judge   improperly

determined  that she  showed little  remorse.   However,  the

Immigration  Judge  observed  her  demeanor  and  heard   her

testimony.    This  finding  essentially  turns  on  Choeum's

credibility and does not provide a basis to overrule the BIA.

Choeum  also argues  that  the  Immigration Judge  improperly

emphasized  her reliance on  welfare, by failing  to consider

                                                    

15.  As noted, IIRIRA  repealed 8 U.S.C.   1105a.   See supra                                                                         
note 2.  IIRIRA does  adopt a consolidation provision that is
substantially similar  to the  old provision.   See IIRIRA                                                                  
306(a)(2) (current 8 U.S.C.   1252(b)(6)).  

                             -38-                                          38

the  circumstances that  have made  it  difficult for  her to

work.    Many of  these  circumstances  are of  Choeum's  own

making.    Moreover,  many,  if  not  most  immigrants,  face

language   and  educational   barriers   that  make   finding

employment challenging. 

          Choeum's  only argument  of substance  is  that, by

affirming the decision  of the Immigration Judge  "based upon

and  for the  reasons set  forth in  that decision,"  the BIA

apparently did not  consider the  new evidence  of the  post-

hearing birth of her son David.  The INS replies that the BIA

is an  appellate body and  that Choeum failed to  comply with

the proper procedure for presenting new evidence, which is to

move  to reopen proceedings before the Immigration Judge, see                                                                         

8 C.F.R.   3.2.

          While  the BIA may, in its discretion, consider new

evidence  presented  for  the  first time  on  appeal,  it is

certainly appropriate  for the  BIA to  insist on  compliance

with  the proper  procedures.    Fair  proceedings  are  best

assured  through proper entry into the record of all relevant

evidence, and through  the ability of the  factfinder to sift

that  evidence.    The  BIA  has  given  notice,  in  earlier

decisions, that it  may refuse to consider  new evidence that

is not part of the record before the Immigration Judge.  See,                                                                        

e.g., Matter of C-,  20 I. &amp; N. Dec. 529,  1992 WL 200361, *6                              

(BIA   May  28, 1992).    In these  circumstances, the  BIA's

                             -39-                                          39

insistence that the procedural formalities be observed cannot

be considered an abuse of discretion.16

          Accordingly, the decisions of the BIA challenged in

the  first petition  are affirmed.   The  second petition  is                                             

dismissed.

                                                    

16.  We  also note  that  the  birth of  a  second child  was
unlikely to  substantially shift the equities of petitioner's
case.  While it is true that Choeum has a second child, he is
very  young, allegedly has  no relationship with  his father,
and   presumably does  not yet have  significant ties  to the
United  States.   Additionally,  the BIA,  by relying  on the
record before  the Immigration  Judge, did  not consider  the
other  post-hearing   events  in  Choeum's   life,  including
quitting  her  job,  returning to  reliance  on  welfare, and
failing  to pursue  further  her  GED  or  other  educational
avenues. 

                             -40-                                          40
