
USCA1 Opinion

	




                            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            ___________________            ________________     ______________        & 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. &  N. Dec. 418,  1991 WL 353530,  *3 (BIA  Nov. 5,            __            1991);  Matter of Carballe,  19 I.  & 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. & 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
