On June 4, 2026, the Board of Immigration Appeals (the Board) issued a decision in Matter of J-O-A-, a case discussing “particular serious crime” and its impact on eligibility for withholding of removal.
It also discussed eligibility for Convention Against Torture relief.
The Board serves chiefly as the administrative appeals forum for removal cases from immigration courts. It issues 45,000 decisions per year. A handful are published. In 2025 it published 33 decisions. Published cases explain ambiguities and gaps in the Immigration and Nationality Act (INA), the statutory source of immigration law. One such gap that the BIA ventures to define is the “particular serious crime” verbiage as it relates to withholding of removal.
Wihholding of removal is found at INA § 243(b)(3)(A) and states that “… the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” At INA § 243(b)(3)(B)(ii), the statute limits withholding if “the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States….”
This case purports to address the meaning of “a particularly serious crime.” What a particularly serious crime is is not easy to parse. One person may consider a crime extremely serious while another may not consider it serious at all. For example, demonstrating against and blocking ICE officers for some is a minor issue compared with the right to assemble and protest government actions. To others it is a serious threat to law enforcement. Sometimes, similar conduct becomes serious because of the result. People get arrested for drunk driving all the time. People do not generally consider receiving a DUI a Scarlet A that condemns a person to life-long ignominy, or, in the case of withholding of removal, banishment to a country where the individual will face severe harm, i.e., persecution. Yet if a person, just as drunk as the thousands who commit DUI on a given day, hits a school bus and kills fifty children, the crime would likely be considered particularly serious – despite identical conduct. If a mom-and pop food manufacturer substitutes some peanut oil for canola oil in a batch of brownies, it would likely not be considered a serious crime. If the brownies were fed to a group of people with peanut allergies, killing a few, it likely would be. It is not conduct or the nature of the crime, it is dumb (yes, as a lot of you don’t know, spelled with a b) luck that renders the crime particularly serious.
There is a principle in the law where a statute can be voided because of vagueness as the Supreme Court did here. . However, courts have not done so with the “particularly serious crime” statute.
The Board, in Matter of J-O-A-, addresses 18 U.S.C. § 1347, which criminalizes knowingly executing or, through false pretenses, attempting a scheme to defraud a health care benefit program or to obtain money or property from such a program. The Board had to determine whether the crime generally was “within the ambit of a particularly serious crime,” and then whether the specific conduct of the individual was particularly serious. With little explanation, the Board sort of states that fraud renders any crime particularly serious. This is not a helpful observation as fraud is an element in lots and lots of crimes making lots and lots of crimes particularly serious. It is thus a not-particularly-useful way to limit crimes to those that are particularly serious. But at least its a definition and somewhat of a limitation on the universe of all crimes.
The Board then goes on to say that because the crime involves a health care program, it “may well negatively impact or affect the entity’s ability to continue providing health care benefits, items, or services.” The Board cites convictions for frauds “involving millions of dollars of health care claims” or “significantly harmed the lives of numerous innocent people.”
So is the Board saying any crime involving fraud is “particularly serious” or any health care fraud crime is “particularly serious?” Got me.
The Board’s next step was to determine whether the specific conduct was particularly serious. This is where explanation is more sorely needed. If any fraud crime is particularly serious in general, from stealing millions from Medicare, to endorsing and cashing a check to a spouse for $20, then the second step is meaningless. If there is meaning, it would be in analyzing how to determine what conduct is particularly serious, i.e., whether endorsing a check of $20 would not be particularly serious while endorsing a check for $10,000 would be. The Board determines particular seriousness from “the nature of the respondent’s conviction, the sentence imposed, and the circumstances and underlying facts of the
conviction.”
At the very end of its exegesis, the Board gets to this analysis. It writes, “The respondent’s offense caused significant loss to the Government and the public, both in terms of the $2.65 million monetary loss and the other intangible harms inflicted. The respondent received 11 months of imprisonment, 3 years of probation, and was ordered to pay $1.5 million in restitution, all of which supports the Immigration Judge’s finding that the respondent was more than a ‘minor player’ in the scheme.”
Obviously, this is a substantial amount of money, So is the rule of the case that $2.65 million and other intangible harms make the crime particularly serious or the mere determination that it involved fraud make it serious, or both? Is it the 11 month imprisonment or the probation that makes it particularly serious? Would it be particularly serious if it were 6 months imprisonment and a $1 million loss? Or a $1000 loss and straight probation? Got me.
For example, suppose a doctor sees a patient who severely needs an x-ray, but Medicare does not cover it or the person is uninsured. Lets assume (It’s my hypothetical) the marginal cost of the x-ray is minimal but the average cost high. The doctor gets the x-ray authorized by mischaracterizing the reason for it. It saves the patient’s life. Would that be particularly serious? The decision is unhelpful in parsing how to evaluate how to evaluate “the nature of the respondent’s conviction, the sentence imposed, and the circumstances and underlying facts of the conviction.”
A case of fraud with a loss of $2.65 million does little to help determine just what a particularly serious crime is. The case cites a case in the decision about a $900,000 loss. Is that the amount? Further, the Board stresses repeatedly in the decision that crimes against property can be particularly serious. So, then what is the importance of holding that the health care frauds significantly harms the lives of numerous innocent people? Is the mere financial crime enough or is the harms to innocent people important? For a decision with the purpose of determining when a crime is particularly serious, the decision provides little or no help.
The second part of the decision, about Convention Against Torture relief eligibility, provides no new guidance or insight.
All in all, the case says that frauds can be particularly serious even if they are crimes against property alone, which we knew. Health care frauds can be particularly serious because they can amount to (but don’t have to) a lot of money and can harm people (though harming people is not necessary, I think). In evaluating the nature of a conviction, sentence imposed, and the underlying facts of the conviction the case teaches that $2.65 million (or maybe $900,000) is a particularly serious crime amount and 11 months confinement is a particularly serious sentence for a $2.65 million loss. Beyond that, it provides no help. Posted June 7, 2026.
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