In Gao v. Holder, No. 07-2070, the court faced a challenge to the BIA's denial of Chinese petitioner's applications for withholding of removal and asylum.
In approving the Attorney General's finding that a conviction for unlawful export is an aggravated felony under section 1231(b)(3)(B), the court stated: "The statute does not declare that some categories of crimes may not be considered particularly serious. Instead, it creates a per se rule that some aggravated felonies must be considered particularly serious and then leaves it up to the Attorney General to 'decide[ ]' whether other crimes are as well."
Thus, in affirming the denial of petitioner's applications based on her conviction for unlawful export, the court ruled that an offense need not be an aggravated felony to qualify as a particularly serious crime for withholding and that BIA may determine that a non-aggravated felony is a particularly serious crime for asylum purposes on a case-by-case determination.