The Accused Philadelphia Rapist and ‘Particularly Serious Crimes’

Statutory withholding should not be a license for continued predation

By Andrew R. Arthur on October 25, 2021

On October 21, Fox News ran a harrowing story about the alleged October 13 rape of a woman on on board a Philadelphia-area SEPTA commuter train, in view of onlookers who did nothing to intervene. That case has raised issues about a little-known immigration protection known as “withholding of removal” , which is available to criminal aliens under orders of removal. Here are the facts.

The suspect in that case is one Fiston Ngoy, a 35-year-old identified as “Congolese”. There are actually two countries known as “Congo”: the Democratic Republic of the Congo (DRC, formerly Zaire, sometimes called Congo-Kinshasa, after the capital city), and the Republic of the Congo (ROC, often called Congo-Brazzaville to eliminate confusion). Nationals of each are “Congolese”, and it is unclear from which Ngoy hails.

In any event, Ngoy reportedly entered in 2012 on a student visa, which he overstayed in 2015. According to the Washington Times, he pled guilty to misdemeanor sexual abuse in 2017 in D.C., and was sentenced to 120 days in prison and nine months of probation.

In January 2018, Ngoy was placed into ICE detention, and was granted withholding of removal (known as “statutory withholding”, to distinguish it from withholding under the Convention Against Torture, “CAT”) by an immigration judge (IJ) in March 2019.

That grant purportedly followed a determination by the Board of Immigration Appeals (BIA) that his misdemeanor sex offense conviction was not a “particularly serious crime”.

The timing of the case, if correct, is interesting, because that suggests that the IJ had denied Ngoy’s application for statutory withholding on the ground that his crime was particularly serious, but the BIA reversed that determination and remanded the case to the IJ to issue the statutory withholding grant.

Statutory withholding is like asylum, but the burden for statutory withholding is higher (more likely than not that persecution will occur, as opposed to “well-founded fear” of persecution for asylum). Grants of statutory withholding only follow an order of removal (an alien granted asylum is not ordered removed), and aliens granted withholding of removal are not placed on a path to a green card or citizenship.

In addition, statutory withholding only protects the alien from being removed from the country or countries from which removal is withheld; those aliens can still be removed if a country can be found to take them, but they only rarely are removed.

Why would an alien apply for statutory withholding then? Because the alien is barred from asylum for some reason. One may be the fact that the alien failed to apply for asylum within one year of entry (the “one-year bar”). Another is that the alien committed some crime that renders the alien ineligible for asylum (asylum, unlike statutory withholding, is discretionary).

Aliens are statutorily barred from receiving asylum if they have been convicted by final judgment of a particularly serious crime, including an aggravated felony.

Similarly, aliens are barred from statutory withholding if they have been convicted of a particularly serious crime, but only an aggravated felony or felonies for which the alien has been sentenced to five years (in the aggregate) or more in a particularly serious crime by law.

That said, regardless of whether the alien’s crime is an aggravated felony or not (and regardless of the sentence that the alien received), the court can still find that the crime is “particularly serious” if, as a consequence, the alien “constitutes a danger to the community of the United States” (which is true regardless of whether the alien is applying for asylum or statutory withholding).

From the facts as reported, it’s likely Ngoy was denied asylum under the one-year bar and sought statutory withholding, notwithstanding his misdemeanor sexual abuse conviction.

Whether a crime is “particularly serious” is a judgment call for the IJ as an initial matter. With the former INS, I argued a case in which a man knocked his wife down during an argument and micturated on her in the sight of their child. One visiting IJ found (over my vigorous objection) that the crime was not “particularly serious”, but the case continued with another IJ who concluded quickly that it was.

It is usually also a fact-dependent, case-by-case determination. Here is the definition of “misdemeanor sexual abuse” under D.C. law:

Whoever engages in a sexual act or sexual contact with another person and who should have knowledge or reason to know that the act was committed without that other person’s permission, shall be imprisoned for not more than 180 days and, in addition, may be fined in an amount not more than the amount set forth in [code].

That sounds like a description of a sexual act with an impaired person, as the alleged victim in the SEPTA incident was reported to have been, according to Fox News. But so does fourth degree sexual abuse under D.C. law, which carries a possible five-year sentence. That said, the specific facts of that event (which have not been reported) would be very telling.

It is impossible to question the judgment of the IJ or the BIA without those facts, but sexual abuse crimes are all serious by their nature, and prone to repetition (which is why there are sex offender registries).

It’s likely a surprise to most that alien sex offenders are even eligible for humanitarian protection under U.S. law. They are because the United States is a signatory to the 1967 Protocol to the 1951 UN Refugee Convention.

Under article 33.1 of that convention:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

That article is the foundation of statutory withholding, and the particularly serious crime exception is found in the next article, 33.2:

The benefit of the present provision may not, however, be claimed by a refugee 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.

If the United States remains a contracting state to the Refugee Convention, alien criminals will be eligible to apply for statutory withholding, and CAT, too. The UN Torture Convention extends protection to all who meet the statutory requirements for it, regardless of whether the alien is a terrorist, and regardless of the crimes that alien has committed.

My colleague Mark Krikorian has argued that the United States should withdraw from the Refugee Convention, and although I am not quite sold, cases like this provide strong reasons for doing so. Statutory withholding should be a last chance for aliens in need, not a license for continued predation.