Carlos Bastardo-Vale v. Attorney General United States, 934 F.3d 255

Background

Petitioner Carlos Eduardo Bastardo-Vale, a Venezuelan national, pleaded no contest to second‑degree unlawful imprisonment in Delaware after an alleged forcible sexual encounter with a college freshman and received a suspended one‑year sentence.
DHS charged him as removable and he applied for asylum, withholding of removal, and CAT relief; the IJ granted asylum but the BIA reversed, holding his conviction was a "particularly serious crime" and barred asylum and withholding.
The BIA applied a case‑by‑case analysis (relying on its precedent like In re N‑A‑M‑ and M‑H‑) to find the offense particularly serious despite it not being an aggravated felony.
The Third Circuit initially had precedent (Alaka v. Attorney General) holding that "particularly serious crime" in the withholding statute was limited to aggravated felonies; the en banc court reconsidered Alaka.
The en banc majority held that in both the asylum statute (8 U.S.C. § 1158) and the withholding statute (8 U.S.C. § 1231(b)(3)), "particularly serious crime" includes aggravated felonies but is not limited to them, permitting both regulatory and case‑by‑case designations.
Bastardo‑Vale did not raise in his opening brief a challenge to the BIA’s application of its case‑by‑case framework to his conviction, and the court found that argument waived, leaving the BIA’s factual application intact and denying the petition.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "particularly serious crime" in the asylum statute is limited to aggravated felonies	Bastardo‑Vale: non‑aggravated conviction cannot trigger the bar	Government/BIA: non‑aggravated crimes may be designated by regulation or case‑by‑case	Held: Not limited to aggravated felonies; aggravated felonies are a subset and AG may designate by regulation or case‑by‑case
Whether "particularly serious crime" in the withholding statute is limited to aggravated felonies	Bastardo‑Vale: Alaka controls; withholding bar limited to aggravated felonies	Government/BIA: statute allows broader meaning; AG can determine other crimes are particularly serious	Held: Overruled Alaka; withholding phrase also includes but is not limited to aggravated felonies
Whether the phrase "by regulation" in § 1158(b)(2)(B)(ii) restricts the AG to rulemaking (precluding case‑by‑case adjudication)	Bastardo‑Vale: (and majority) "may designate by regulation" is permissive; does not preclude adjudication	Dissent: "by regulation" unambiguously limits AG to rulemaking for designations	Held: Majority rejects the limiting reading; AG may use regulation or case‑by‑case adjudication (dissent disagrees)
Whether Bastardo‑Vale preserved a challenge to the BIA’s application of case‑by‑case analysis to his conviction	Bastardo‑Vale: appellate brief argued only Alaka; did not contest BIA's factual application	Government/BIA: BIA factual determination stands	Held: Waiver — Bastardo‑Vale failed to preserve that argument; BIA’s application left undisturbed

Key Cases Cited

Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006) (prior Third Circuit panel holding "particularly serious crime" in withholding statute limited to aggravated felonies)
Gao v. Holder, 595 F.3d 549 (4th Cir. 2010) (holding "particularly serious crime" not limited to aggravated felonies and endorsing case‑by‑case analysis)
Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc) (asylum and withholding bars permit case‑by‑case determinations and AG regulatory authority)
Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008) (concluding AG may determine non‑aggravated felonies to be particularly serious)
Brand X Internet Servs. v. FCC, 545 U.S. 967 (2005) (explaining when courts must defer to agency interpretations over prior judicial constructions)
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency interpretations)
Leocal v. Ashcroft, 543 U.S. 1 (2004) (canon to give effect to every word of a statute)