Arbid v. Holder, 700 F.3d 379

The opinion addresses Khalil-Salim Arbid’s petition for review of a BIA decision upholding a finding of a particularly serious crime and denying CAT deferral.
Arbid pleaded guilty in April 2008 to mail fraud under 18 U.S.C. § 1341 with a 16-month sentence and restitution over $650,000.
The IJ previously granted asylum and withholding of removal based on past torture claims, but DHS later moved to reopen focusing on the newly alleged particularly serious crime.
The BIA upheld the IJ’s determination that Arbid’s mail-fraud conviction was a particularly serious crime and affirmed the CAT denial after considering country conditions in Lebanon.
Arbid challenges the BIA/IJ conclusions and the court ultimately denies the petition for review.
The opinion discusses the proper standard of review and the scope of judicial review under § 1231(b)(3)(B)(ii) and related statutes.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of review for particularly serious crime determinations	Arbid contends a de novo standard should apply.	BIA/IJ determinations are discretionary and should be reviewed for abuse of discretion.	Abuse-of-discretion review governs the determinations.
Jurisdiction to review discretionary BIA decisions	Argues lack of review under 1252(a)(2)(B)(ii).	Discretionary language in statute limits review.	Court retains jurisdiction to review discretionary determinations when not explicitly carved out by statute.
Impact of Kucana and Delgado on review scope	Kucana and Delgado limit review of discretionary decisions.	Their rationale supports preserving some review of BIA determinations.	Kucana/Delgado do not strip jurisdiction; abuse-of-discretion review applies to particularly serious crime determinations.
Frentescu factors and weighing by BIA/IJ	Argues misweighing or misapplication of Frentescu factors.	BIA/IJ properly weighed factors including nature of conviction and community danger.	No abuse of discretion in applying the Frentescu factors.
Deferral of removal under CAT	Arbid should obtain CAT deferral given forecasting of torture.	Changed Lebanon conditions do not compel CAT relief.	Substantial evidence supports no likelihood of torture; CAT denial affirmed.

Delgado v. Holder, 648 F.3d 1095 (9th Cir.2011) (abuse-of-discretion review applied to particularly serious crime determinations; en banc)
Kucana v. Holder, 558 U.S. 233 (S. Ct.2010) (regulatory discretion does not forbid review of discretionary decisions)
Matsuk v. INS, 247 F.3d 999 (9th Cir.2001) (prior view of discretionary determinations under §1252(a)(2)(B)(ii))
In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007) (discretionary nature of certain determinations noted by BIA)
Frentescu, 18 I. & N. Dec. 244 (BIA 1982) (factors used to assess particularly serious crimes)
Lopez-Cardona v. Holder, 662 F.3d 1110 (9th Cir.2011) (constitutional and legal challenges reviewed de novo)
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (framework for interpreting ambiguous statutory language (Chevron/Court))
Zheng v. Holder, 644 F.3d 829 (9th Cir.2011) (review of factual determinations under substantial evidence)
Hinkson, 585 F.3d 1247 (9th Cir.2009) (en banc; standard for abuse-of-discretion review)
Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir.1990) (per curiam; context on challenge to BIA standards)
Gao v. Holder, 595 F.3d 549 (4th Cir.2010) (discretionary determinations within agency after Kucana-like reasoning)
Nethagani v. Mukasey, 532 F.3d 150 (2d Cir.2008) (recognition of discretion in BIA determinations)