430 F. App'x 448
6th Cir.2011Background
- Hernandez-Vasquez, a Salvadoran national, entered the U.S. without admission or parole and received derivative asylum based on his mother's application in 1989.
- In May 2004, an Ohio indictment charged five counts of gross sexual imposition; he pled guilty to one count of child endangerment and was sentenced in June 2005 to two years imprisonment; remaining counts were nolle prosequi.
- Removal proceedings were started in 2006, charging inadmissibility and a CIMT conviction; in 2007 proceedings to terminate asylum were initiated based on a final judgment of a particularly serious crime.
- An Immigration Judge (IJ) in 2007 relied on evidence outside the record of conviction to determine a particularly serious crime, citing Matter of N-A-M (BIA 2007).
- In 2009, after the Silva-Trevino decision, the IJ revisited the CIMT issue and, July 2009, denied withholding of removal, protection under CAT, and cancellation of removal; the BIA affirmed on October 20, 2009, and this petition for review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether outside-record evidence can support a particularly serious crime finding | Hernandez-Vasquez | BIA/N-A-M support outside-evidence use | Proper under N-A-M; outside records admissible where elements potentially bring crime within scope |
| Whether the BIA/ IJ’s determination of a particularly serious crime is reviewable | Hernandez-Vasquez | Agency decisions reviewable post-Kucana | Court has jurisdiction to review the particularly serious crime determination |
| Whether the conviction for child endangerment may be treated as particularly serious crime | Hernandez-Vasquez | Statutory and factual context allow such treatment | Court upholds BIA’s treatment consistent with N-A-M framework |
| Whether the IJ/BIA reliance on non-elemental factors violates categorical approach | Hernandez-Vasquez | N-A-M permits considering facts and circumstances beyond the record of conviction | No error; factors beyond elements may be considered |
Key Cases Cited
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (review of BIA decisions where agency explains reasoning)
- Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010) (jurisdiction to review asylum determinations after Kucana)
- Matter of N-A-M, 24 I. & N. Dec. 336 (BIA 2007) (establishes when outside evidence may be considered in particularly serious crime determinations)
- Matter of L-S, 22 I. & N. Dec. 645 (BIA 1999) (recognizes consideration of evidence beyond the elements of the offense)
- Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) (contrasts Morales with BIA’s interpretation; Morales relied on state decision records)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (Chevron deference framework for agency interpretations)
- Kucana v. Holder, 130 S. Ct. 827 (2010) (jurisdiction-stripping provisions do not bar review of asylum eligibility determinations)