The Supreme Court will likely decide this week whether it will hear a case testing the limits of the “particularly serious crimes” bar to withholding of removal and asylum. At its first conference of the year, scheduled for January 7, the Court is expected to decide whether or not to grant cert on Gao v. Holder, No. 10-130.
This case involves an LPR who was convicted of tax fraud and unlawful exporting of goods (computer microprocessors). Gao was placed into removal proceedings as a result of these two offenses. The IJ found that she was removable because these offenses constitute crimes involving moral turpitude. The IJ, however, concluded that these were not particularly serious crimes. Therefore, the IJ determined, Gao was eligible for and received asylum and withholding of removal. DHS appealed. The BIA and Fourth Circuit concluded that Gao’s offenses constituted particularly serious crimes, thus she was barred from eligibility for asylum and withholding. Gao is now asking the Supreme Court to overturn the Fourth Circuit’s decision.
Gao’s petition asks the Court to decide: 1) whether the category of “particularly serious crimes” is limited to “aggravated felonies,” with the sole exception that – with respect to asylum – the Attorney General may “designate” additional offenses “by regulation” and 2) whether the government make an individualized determination that an individual poses “a danger to the community” before denying her withholding of removal or asylum? The Solicitor General submitted a brief in opposition to Gao’s petition.
Update: The Court denied certiorari on January 10, 2011.