Delgado v. Holder
2011 U.S. App. LEXIS 17209
| 9th Cir. | 2011Background
- Delgado, a native of El Salvador, entered the U.S. on a nonimmigrant visa in 1980 and overstayed.
- During residence, Delgado was convicted of DUI three times (1992, 2000, 2001).
- Delgado sought asylum, withholding of removal, and CAT relief, alleging persecution if returned to El Salvador.
- The IJ denied all relief, determining Delgado’s DUI convictions constituted a particularly serious crime (PSCr) barring relief.
- The BIA affirmed in a non-precedential decision, agreeing with the IJ that Delgado’s record rose to the level of a PSCr.
- Petition for review was granted in part and remanded to provide a clearer, more complete explanation of the PSCr determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review PSCr determination | Delgado argues the court lacks jurisdiction over PSCr findings under §1252(a)(2)(B)(ii). | The government contends jurisdiction exists and Matsuk is overruled by Kucana. | Court has jurisdiction to review PSCr determinations. |
| PSCr scope for withholding relief | DUI is not an aggravated felony; therefore cannot be PSCr for withholding. | BIA may deem non-aggravated offenses PSCr; 1231(b)(3)(B) is ambiguous and permits case-by-case determinations. | PSCr can include offenses beyond aggravated felonies for withholding. |
| ASLYM PSCr authority by adjudication | AG cannot designate non-regulated crimes as PSCr for asylum on adjudication alone. | AG/BIA may designate PSCr through case-by-case adjudication as to asylum. | Agency may designate PSCr by adjudication for asylum. |
| Need for clear BIA explanation on PSCr | BIA’s conclusory PSCr denial prevents meaningful review. | BIA’s rationale partly adopts IJ’s factors; remand is appropriate for a clear explanation. | Remand to provide a clear, articulable PSCr basis. |
| CAT deferral and otherwise | Delgado may qualify for CAT deferral if torture is more likely than not with government involvement. | Record shows conditions in El Salvador improved; not likely governmental torture. | CAT deferral denied; substantial evidence supports denial. |
Key Cases Cited
- Kucana v. Holder, 130 S. Ct. 827 (U.S. 2010) (overruled Matsuk’s jurisdictional limit; reviewability depends on statutory text)
- Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001) (held no jurisdiction to review PSCr determinations under §1252(a)(2)(B)(ii))
- N-A-M-, Matter of, 24 I. & N. Dec. 336 (BIA 2007) (BIA defers to Chevron; PSCr not limited to aggravated felonies)
- N-A-M- II, 587 F.3d 1052 (10th Cir. 2009) (affirmed BIA’s permissible interpretation of PSCr extent)
- Gao v. Holder, 595 F.3d 549 (4th Cir. 2010) (supports BIA’s permissible, case-by-case PSCr interpretation for asylum)
- Frentescu, 18 I. & N. Dec. 244 (BIA 1982) (establishes factors for PSCr: nature, circumstances, sentence, danger)
- Ramirez-Ramos v. INS, 814 F.2d 1394 (9th Cir. 1987) (establishes asylum/relief framework and non-refoulement principles)
- Cardoza-Fonseca, 480 U.S. 421 (1987) (explains asylum standard and discretionary relief dynamics)