Shuli Marambo v. William P. Barr, 932 F.3d 650

Background

Marambo, a DRC national admitted as a refugee in 2007, later pled guilty (2013) to two counts of second-degree burglary and (while on probation) was convicted of unlawful possession of a firearm (2014). Probation was revoked and he received a 60-month aggregate sentence.
DHS charged removability under three grounds: two or more crimes involving moral turpitude (which Marambo conceded), aggravated felony, and unlawful possession of a firearm. The IJ and BIA found him removable (the BIA reversed the aggravated-felony ruling but relied on the conceded basis).
Marambo applied for adjustment of status, asylum, withholding of removal, and CAT relief; the IJ denied all relief and the BIA affirmed denial of withholding and CAT relief.
The IJ found the firearm conviction to be a "particularly serious crime," barring withholding of removal; the IJ also found insufficient evidence that Marambo would more likely than not be tortured in the DRC, denying CAT protection.
Marambo appealed to this Court challenging (1) the particularly-serious-crime determination for the firearm offense and (2) the BIA’s CAT analysis and standard of review; he also argued the IJ relied on uncharged conduct. The court limited review to legal and constitutional claims because Marambo is a "criminal alien."

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the firearm conviction is a "particularly serious crime" barring withholding	Marambo: IJ/BIA improperly relied on unproven/unreliable facts and misweighed factors; conviction not particularly serious	DHS: BIA/IJ permissibly considered conviction record and surrounding facts; conviction indicates danger to community	Court: Affirmed — review limited to legal issues; factual challenges barred; IJ/BIA acted within authority to consider complaint facts and weigh factors
Whether BIA precedent interpreting "particularly serious crime" is entitled to deference	Marambo: BIA precedent (In re N-A-M-) is unlawful and not entitled to deference (raised for first time)	DHS: BIA precedent is binding/entitled to deference; administrative exhaustion required	Court: Issue unexhausted — Marambo failed to raise before BIA; court will not consider it for first time on review
Whether IJ/BIA impermissibly relied on uncharged conduct (attempted burglary) in making the particularly-serious-crime finding	Marambo: IJ inferred guilt of attempted burglary from complaint and used it to characterize firearm offense	DHS: IJ relied only on facts related to the firearm arrest (context), not to adjudicate guilt of another crime	Court: IJ did not decide guilt on uncharged offense; reliance on factual context of arrest was permissible
Whether BIA applied incorrect standard or erred denying CAT relief	Marambo: BIA should have used de novo review and, on either standard, CAT relief warranted	DHS: BIA applied clear-error review; factual findings are discretionary and unsupported to reopen	Court: Marambo failed to exhaust standard-of-review argument; substantive CAT challenge amounts to factual disputes outside court's jurisdiction; denial affirmed

Key Cases Cited

Constanza v. Holder, 647 F.3d 749 (8th Cir.) (jurisdiction in criminal-alien cases limited to constitutional claims and questions of law)
Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir.) (deference to BIA statutory interpretations)
Zine v. Mukasey, 517 F.3d 535 (8th Cir.) (exhaustion and jurisdictional discussion)
Frango v. Gonzales, 437 F.3d 726 (8th Cir.) (court-imposed administrative exhaustion where proceedings adversarial and represented)
Tian v. Holder, 576 F.3d 890 (8th Cir.) (factors for particularly serious crime determination)
Vue v. INS, 92 F.3d 696 (8th Cir.) (permissibility of considering criminal complaint in immigration determinations)
Cherichel v. Holder, 591 F.3d 1002 (8th Cir.) (factual determinations by IJ/BIA not reviewable on petition for review)
Njong v. Whitaker, 911 F.3d 919 (8th Cir.) (standard of review issues where facts undisputed)