Javier Perez-Palafox v. Eric Holder, Jr.
2014 U.S. App. LEXIS 4534
9th Cir.2014Background
- Perez-Palafox, a Mexican national and lawful permanent resident, previously had withholding of removal granted by an IJ; later convicted (2006) in California for sale/transportation of a controlled substance (Cal. H&S § 11379(a)) and sentenced to three years.
- The government moved to reopen to terminate withholding based on the 2006 conviction as a "particularly serious crime." The IJ initially refused to consider a police report not reflected in the plea colloquy and denied termination.
- The BIA remanded, instructing the IJ to consider all reliable information (including the police report) under Matter of N-A-M- and Anaya-Ortiz. On remand the police report was admitted: officer found methamphetamine, cocaine, marijuana, a digital scale, and empty plastic bags; Perez-Palafox admitted possession but claimed some items belonged to his brother and said he had not paid for the drugs.
- The IJ again denied termination after a case-by-case N-A-M- analysis, finding the government had not proven intent to distribute; the IJ relied on Perez-Palafox’s explanations and did not find the government met its burden.
- The BIA reviewed de novo the legal question of whether the facts established a "particularly serious crime," applied the Frentescu factors to the IJ’s factual findings, concluded the conviction was particularly serious (danger to community), vacated the IJ’s decision and prior withholding, and ordered removal.
- Perez-Palafox petitioned for review, arguing the BIA engaged in improper factfinding; the Ninth Circuit accepted jurisdiction over that legal claim and denied the petition, finding the BIA applied legal review properly and did not supplant the IJ’s factual findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA’s determination that the 2006 conviction is a "particularly serious crime" | Perez-Palafox argued the BIA engaged in legal error by improper factfinding, raising a reviewable question of law | Government argued § 1252 limits review and bars jurisdiction because alien convicted of an aggravated felony | Court has jurisdiction to review the legal question of whether the BIA engaged in impermissible factfinding (question of law under § 1252(a)(2)(D)) |
| Whether the BIA engaged in impermissible factfinding when it vacated the IJ’s grant of withholding | Perez-Palafox: BIA relied on facts not found by the IJ and thus violated 8 C.F.R. § 1003.1(d)(3)(iv) | Government/BIA: Board applied Frentescu legal factors to the IJ’s factual findings and did not add new facts | Held for respondent: BIA applied the clear-error standard to IJ’s facts and made a legal determination; no improper factfinding |
| Whether the 2006 conviction is a "particularly serious crime" eliminating withholding eligibility | Perez-Palafox argued the IJ correctly found government failed to prove intent to traffic and that facts did not meet "particularly serious" threshold | Government argued the quantity, implements (scale, baggies), possession of multiple drugs, and admissions (owing dealer) demonstrate trafficking and danger to community | BIA’s legal conclusion that the conviction was particularly serious was upheld by the court (petition denied) |
| Whether BIA’s remand and interim orders violated due process | Perez-Palafox claimed procedural due process violation from sua sponte reopening and amended orders | Government: BIA has authority to reopen/reconsider sua sponte under 8 C.F.R. § 1003.2(a) | Court rejected the due process claim; BIA may reopen sua sponte |
Key Cases Cited
- Pechenkov v. Holder, 705 F.3d 444 (9th Cir. 2012) (clarifies jurisdiction to review particularly serious crime determinations and exceptions to § 1252(a)(2)(C))
- Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) (distinguishes BIA legal review from improper de novo factfinding; explains review standards)
- Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010) (defers to BIA that IJs may consider reliable information outside the record of conviction)
- Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013) (reverses where BIA engaged in improper factfinding and ignored IJ’s factual findings)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc) (establishes that a particularly serious crime renders an alien ineligible for withholding)
- Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006) (BIA may apply Frentescu factors to IJ’s facts as a legal determination)
- Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007) (application of Frentescu factors to facts is a legal, not factual, determination)
- Mendez-Castro v. Mukasey, 552 F.3d 975 (9th Cir. 2009) (jurisdictional principles governing review of BIA legal standards)