Anthony Alphonsus v. Eric Holder, Jr.
2013 U.S. App. LEXIS 1308
| 9th Cir. | 2013Background
- Alphonsus, a Bangladeshi Christian, seeks relief from removal after two petty-theft with priors convictions and a resisting-arrest conviction.
- IJ held Alphonsus’s resisting-arrest conviction qualifies as a particularly serious crime, barring withholding of removal; CAT deferral denied.
- BIA affirmed the IJ, adopting the two rationales (crime against the orderly pursuit of justice and meaningful risk of harm) for the particularly serious crime designation.
- Court grants petition to the extent of remanding for an explicit, consistent explanation of the BIA’s particular serious-crime ruling; CAT denial remains intact.
- This court acknowledges jurisdiction over constitutional/legal challenges to the BIA’s decision, but remands to clarify the reasoning and consistency with precedents.
- Alphonsus’s CAT claim is decided on the merits; substantial country-condition evidence does not compel likelihood of torture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of §1231(b)(3)(B)(ii) | Alphonsus argues the statute lacks a definition for ‘particularly serious crime’. | Board contends the statute has an ascertainable core and is not void-for-vagueness. | Facial vagueness challenge failed; statute has definable core and explicit framework. |
| Adequacy of BIA’s justification for P.S.C. designation | BIA failed to provide a clear, consistent rationale reconciling with precedents. | BIA’s discretion to determine ‘danger to the community’ allows case-by-case reasoning. | Remanded for explicit, reasoned explanation of which rationale applied and why. |
| Meaningfulness of the two rationales (orderly pursuit of justice; meaningful risk of harm) | The Board’s new rationale is inadequately explained and divergent from precedent. | The two rationales are legitimate interpretive avenues under Frentescu/Carballe/N-A-M-. | Remand required to articulate basis and reconcile with statutory text. |
| Jurisdiction over CAT claim given §1252(a)(2)(C) | Review of CAT merits lies within jurisdiction despite removal-bar in aggravated-felony cases. | §1252(a)(2)(C) bars review of removal orders except legal questions; CAT merits reviewed if merit-based. | Court retains jurisdiction over CAT challenge under the argued exceptions; CAT denial reviewed on the merits. |
| CAT evidence sufficiency to show torture likelihood | Country reports demonstrate credible risk of religious persecution and potential torture. | Record does not show Alphonsus more likely than not to be tortured; government reports less alarming. | Substantial evidence supports the Board’s denial of deferral of removal under CAT. |
Key Cases Cited
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc decision on particularly serious crime framework; remand guidance)
- Israel v. INS, 785 F.2d 738 (9th Cir. 1986) (arbitrary agency action review; departure from precedents must be explained)
- Cardoza-Fonseca, 480 U.S. 421 (Sup. Ct. 1987) (refugee status framework; Convention/Protocol guidance)
- Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) (CAT/withholding/availability of merits review)
- Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003) (agency flexibility; country-condition evidence consideration)
- Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (consideration of contradictory country reports; agency expertise)
- Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003) (agency deference to reports in country conditions)
- Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010) (limits on agency departure from precedent; need for explanation)
- Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007) (aggravated felony crime of violence; circuit precedent)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (central framework for particularly serious crime analysis)