Federico Diego De Diego v. Jefferson Sessions
691 F. App'x 459
| 9th Cir. | 2017Background
- Petitioner Federico Diego de Diego sought review of the BIA’s dismissal of his appeal from an IJ removal order. He is removable as an aggravated felon, limiting this court’s jurisdiction to constitutional claims and questions of law.
- The IJ found Diego had committed a particularly serious crime, rendering him ineligible for withholding of removal, and denied Convention Against Torture (CAT) relief on the merits. The BIA affirmed, issuing a brief opinion addressing salient contentions.
- Diego contended the BIA’s separate, limited opinion violated his due process rights and challenged the IJ’s findings on particularly serious crime and likelihood of torture.
- The IJ had held that Diego’s prior grant of withholding/asylee status was effectively terminated by its denial of asylum/withholding and the removal order.
- The Ninth Circuit reviewed only legal questions and constitutional claims regarding removability and retained jurisdiction over the CAT claim because the IJ denied CAT relief on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA’s brief separate opinion violated due process | Diego: BIA’s limited opinion failed to address key claims and denied fair process | Government: BIA addressed salient contentions; Diego had multiple full hearings and reasoned IJ opinions | BIA did not violate due process; multiple detailed proceedings and opinions were sufficient |
| Whether IJ applied correct standard in finding "particularly serious crime" making petitioner ineligible for withholding | Diego: IJ misapplied legal standard or mischaracterized crime severity | Government: IJ applied correct legal standard per Ninth Circuit and BIA precedent | Court: IJ applied correct legal standard; review limited to legal error, not reweighing evidence |
| Whether IJ erred in denying CAT relief for lack of likelihood of torture | Diego: Record compels finding of more-likely-than-not torture | Government: IJ reasonably found Diego failed to meet the 8 C.F.R. standard; BIA reviewed fact findings for clear error | Court: IJ did not err; record does not compel the conclusion petitioner would likely be tortured |
| Whether IJ erred by not expressly terminating prior withholding grant | Diego: IJ should have expressly terminated prior withholding | Government: IJ’s denial of asylum/withholding and removal order made termination clear | Court: No error; decisions were sufficiently clear to show termination |
Key Cases Cited
- Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir. 2003) (BIA may write separately to address salient contentions without lengthy opinion)
- Konou v. Holder, 750 F.3d 1120 (9th Cir. 2014) (standard for particularly serious crime review; limited appellate role)
- Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) (court retains jurisdiction over CAT where IJ denies relief on merits)
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (IJ must consider all evidence in CAT determinations)
- Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013) (standard for evaluating likelihood of torture; clear-error review of factual findings)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (agency decisions are acceptable if clear enough to reveal determinations and rationales)