Arbid v. Holder
2012 U.S. App. LEXIS 6625
9th Cir.2012Background
- Arbid, a Lebanese citizen, sought asylum; he fled after torture by Syrian agents and entered the U.S. by misrepresenting citizenship.
- IJ granted asylum and withholding of removal prior to his criminal conviction.
- In 2008 Arbid pled guilty to mail fraud (16 months, $650,000 restitution).
- DHS moved to reopen removal proceedings asserting ineligibility for asylum/withholding due to a particularly serious crime.
- IJ and BIA concluded the mail fraud conviction was a particularly serious crime and that Lebanon’s conditions had changed for CAT deferral.
- Petition denied on review; court affirms BIA’s discretionary determinations and Lebanon country-condition finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA’s ‘particularly serious crime’ finding is reviewable. | Arbid challenges the discretionary nature of the finding. | BIA/Attorney General discretion governs such determinations. | Yes; court reviews for abuse of discretion. |
| What standard governs reviewing BIA’s P.S.C. determinations. | Review should be de novo given no explicit statute vesting discretion. | Discretionary, but reviewable for abuse of discretion. | Abuse-of-discretion standard applies. |
| Whether the Frentescu factors support P.S.C. designation. | Conviction facts do not show danger or severity. | Complex scheme and substantial sentence support P.S.C. | BIA and IJ did not abuse discretion; designation upheld. |
| Whether Lebanon conditions negate CAT deferral. | Conditions remain such that torture is more likely than not. | Post-1990s changes show no likelihood of torture. | Substantial evidence supports no CAT deferral. |
Key Cases Cited
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc: review of particularly serious crime determinations improper unless statutorily explicit)
- Kucana v. Holder, 130 S. Ct. 827 (2010) (regulatory discretionary decisions may be reviewed; importance of statutory language)
- Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001) (discretionary nature of particularly serious crime determinations)
- In re Frentescu, 18 I. & N. Dec. 244 (BIA 1982) (factors for determining P.S.C.: nature of conviction, sentence, circumstances, danger to community)
- In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007) (describes BIA’s discretion in P.S.C. determinations)
- Gao v. Holder, 595 F.3d 549 (4th Cir. 2010) (P.S.C. determinations within Attorney General’s discretion; abuse-of-discretion review)
- Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (substantial-evidence standard for CAT determinations)