Afridi v. GonzalesAfridi v. Gonzales
ALARCÓN, Circuit Judge:
Petitioner Rahmatullah Afridi petitions for review of the Board of Immigration Appeals’ (“BIA“) decision dismissing his appeal and ordering him removed to Afghanistan. Mr. Afridi contends that the BIA erred in finding him removable pursuant to
I
Mr. Afridi, a citizen of Afghanistan, was admitted to the United States as a refugee in 1985 and became a lawful permanent resident in 1986.
In 1993, Mr. Afridi pled no contest to his indictment under what is now California Penal Code § 261.5(c) (West 2005) for unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator and was sentenced to three years probation. Mr. Afridi, who was born in 1961, testified in immigration court that this conviction resulted from
On April 15, 2003, a notice to appear was issued charging Mr. Afridi as removable under
On November 22, 2004, the BIA affirmed the IJ‘s order. The BIA found that (1) the IJ properly found that Mr. Afridi was removable for having committed an aggravated felony; (2) Mr. Afridi‘s conviction constituted a particularly serious crime, rendering him ineligible for withholding of removal; (3) the IJ was correct in its determination that Mr. Afridi‘s demonstration of unusual or outstanding equities did not compel an exercise of discretion; and (4) the IJ properly found that Mr. Afridi failed to demonstrate eligibility for protection under the Convention Against Torture. Mr. Afridi now petitions for review of the BIA‘s decision.
II
A
Mr. Afridi first contends that the BIA improperly determined that his conviction for unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator constituted an aggravated felony. The questions of law presented in this petition are reviewed de novo, with deference generally afforded to the BIA‘s interpretation of the
[1] Under
When Congress placed “sexual abuse of a minor” in the list of aggravated felonies, it did so without cross-referencing any other federal statute. United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999);
[2] In this case, the BIA, consistent with Baron-Medina, employed the “ordinary, contemporary and common meaning” of “sexual abuse of a minor.” Baron-Medina, 187 F.3d at 1146. The BIA used the definition of the term set forth in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995 (BIA 1999), which defined “sexual abuse of a minor” as “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.” Id. (quoting
[3] The BIA‘s definition was based on a permissible construction of the statute. Consistent with our precedent, it relied on authorities designed to guide it toward the common meaning of the term. Because the BIA‘s construction was permissible, we defer to it. See Yeghiazaryan, 431 F.3d at 682 (stating that deference is afforded BIA‘s interpretation of statutes).
[4] Notably, Black‘s Law Dictionary defines “minor” without reference to a specific age. Instead, minor is defined simply as “a person who has not yet reached full legal age.” Black‘s Law Dictionary (8th ed. 2004). “Legal age” is defined the same as “age of majority,” which is age eighteen or when a person attains full legal rights. Id. Therefore, the BIA‘s decision not to limit the definition of “minor” is also consistent with the common meaning of the term.
Mr. Afridi argues that in interpreting the term “sexual abuse of a minor,” courts must look to federal substantive law. Specifically, he points to
However, the term “aggravated felony” is not limited to those crimes defined by federal law as sexual abuse of a minor for purposes of determining removability. In fact,
B
[5] We next consider whether Mr. Afridi‘s offense fits the definition of sexual abuse of a minor. A crime under a state statute qualifies as “sexual abuse of a minor” if the full range of conduct defined by the statute falls within the meaning of the term. Baron-Medina, 187 F.3d at 1146 (citing Taylor v. United States, 495 U.S. 575 (1990)).
[6] Section 261.5(c) of the California Penal Code provides as follows:
Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three
years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.
“Unlawful sexual intercourse” is defined by § 261.5(a) of the California Penal Code as:
an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.
A conviction under this statute meets the BIA‘s interpretation of “sexual abuse of a minor” as encompassing any offense that involves “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in . . . sexually explicit conduct . . . .” In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 991, 995. Mr. Afridi had sexual intercourse with a seventeen-year-old girl who was more than three years younger than he. Sexual intercourse clearly constitutes “sexually explicit conduct,” and the seventeen-year-old victim in this matter was a “minor” as that term is commonly defined. Further, the BIA‘s definition of “sexual abuse of a minor” is not limited to victims of any certain age. Therefore, his offense falls within that definition. Accordingly, the BIA properly found that Petitioner was removable for having committed an aggravated felony under
[7] Mr. Afridi next argues that the BIA erred in denying him withholding of removal. Under
The Government argues that we lack jurisdiction to determine whether the BIA properly concluded that Mr. Afridi‘s offense is a particularly serious crime. The Government argues that
The Government argues that Unuakhaulu v. Gonzales, 416 F.3d 931 (9th Cir. 2005), which was decided after the effective date of the REAL ID Act, is controlling here. In that case, we held that “when the Attorney General decides that the alien‘s offense was a ‘particularly serious crime,’ we lack jurisdiction to review such a decision because it is discretionary.” Id. at 935 (citing
[9] Here, however, Mr. Afridi argues that the BIA failed to apply the proper legal standard in determining whether his crime was particularly serious because the BIA misinterpreted our legal precedent defining “particularly serious crime.” This argument raises a question of law. This court has previously treated the BIA‘s interpretation of the term “particularly serious crime” as a question of law. Beltran-Zavala v. INS, 912 F.2d 1027, 1029 (9th Cir. 1990) (superceded in part by statute). See also Ramirez-Ramos v. INS, 814 F.2d 1394, 1396 (9th Cir. 1987) (treating BIA‘s interpretation of “particularly serious crime” as a question of law); Mahini v. INS, 779 F.2d 1419 (9th Cir. 1985) (same). While we cannot reweigh evidence to determine if the crime was indeed particularly serious, we can determine whether the BIA applied the correct legal standard in making its determination. The Government‘s argument that “[t]o declare that the Court has no jurisdiction over discretionary decisions in one breath, and then declare that the Court retains jurisdiction over which ‘standards’ to apply in making those discretionary decisions is self-contradictory,” Supplemental Brief for Respondent at 5, effectively reads
[10] Because “particularly serious” is not statutorily defined, the BIA developed in In re Frentescu, 18 I. & N. Dec. 244 (BIA 1982) (superceded by statute in part), the standard that must be considered in determining whether a particularly serious crime has been committed. Id. at 247. In Frentescu, the BIA explained that in most cases, determining whether a crime is particularly serious requires a case-by-case analysis, using “such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.” Id. We have approved of this formulation. Mahini, 779 F.2d at 1421; Beltran-Zavala, 912 F.2d at 1031-32.
[11] Mr. Afridi argues that the BIA in this matter evaluated “one fact and one fact only“: the length of time he was to be on probation. The BIA opinion states:
We reject [Mr. Afridi‘s] argument that, because he was only placed on formal probation and was allowed to complete his sentence of 120 days in jail on alternative sentencing, he does not meet the factors set out in Matter of Frentescu . . . for a “particularly serious crime.” . . . [A] common sense view of a sexual abuse law, in combination with the legal determination that minors are generally incapable of consent, suggests that whenever an older person attempts to sexually touch a child, there is invariably a substantial risk that physical force will be wielded to ensure the child‘s compliance. It is clear from the record . . . that [Mr. Afridi] admitted to having sexual intercourse with a minor, a serious crime that poses a danger to the community. Furthermore, although the respondent received only probation in this matter, his sentence also includes a requirement to keep his probation officer advised of his movements for a significant period of time.
(citations omitted). The BIA considered two of the Frentescu factors, the nature of the conviction and the sentence imposed, when it concluded that the crime was for sexual abuse of a minor and that Mr. Afridi had to keep his probation officer advised of his movements. In determining that Mr. Afridi posed a danger to the community, the BIA did not consider the circumstances and underlying facts of the conviction. Rather, the BIA concluded that as a general matter, crimes of sexual abuse involve force and make an individual a danger to the community. It did not determine, for example, whether force was used or any other facts or circumstances relating to the commission of the crime. In short, aside from the reference to the sentence Mr. Afridi received, there is nothing in the BIA‘s analysis regarding Mr. Afridi‘s conviction for sexual abuse of a minor that would separate it from an analysis regarding any other person‘s conviction for the same offense.
We must determine whether the BIA erred in failing to apply each of the Frentescu factors. In determining whether
In Mahini, we affirmed the BIA‘s finding that the petitioner‘s conviction for distribution of heroin with intent to distribute was a particularly serious offense. Id. at 1421. In that case, we explained that the BIA considered several of the factors set out in Frentescu: the nature of the conviction, the type of sentence imposed, and the circumstances and facts underlying the conviction. Id. We concluded that the BIA did not err in determining that the crime was particularly serious and that the petitioner was a danger to the community. Id.
In Beltran-Zavala, in which we again approved of the Frentescu interpretation of a particularly serious crime, we stated that when determining whether a particularly serious crime has been committed, “it is the conviction that is in issue, not other acts that might render the alien dangerous to the community.”4 Beltran-Zavala, 912 F.2d at 1031. We had
[12] This matter is distinguishable from Mahini and similar to Beltran-Zavala. In Mahini, although the BIA only applied “several” of the Frentescu factors, it did look to the circumstances of the petitioner‘s conviction to make a case-by case determination. Mahini, 779 F.2d at 1421. In the present case, the BIA referred to the Frentescu factors, but in evaluating Mr. Afridi‘s crime, it failed to engage in a case-specific analysis. Instead, it generalized to conclude that the type of crime committed by Mr. Afridi was particularly serious. Mr. Afridi, like the petitioner in Beltran-Zavala, is entitled to have the BIA examine the underlying facts and circumstances of his conviction.
This Court has never specifically addressed how extensive a Frentescu analysis is sufficient, but other courts have. For instance, in Hamana v. INS, 78 F.3d 233 (6th Cir. 1996), the Sixth Circuit affirmed the BIA‘s finding that Hamana‘s conviction for a firearms offense was particularly serious. Id. at 240. In that case, the court said:
The BIA therefore has the prerogative to declare a crime particularly serious without examining each and every Frentescu factor. Although the Board might have engaged in a more fact-specific analysis, Chevron directs us to defer to the BIA‘s interpretation . . . . The Board‘s decision in this case should be accorded such deference.
Id. The court said that some crimes are “facially particularly serious” and affirmed the BIA‘s finding. Id.
In Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001), however, the Fourth Circuit held that where the BIA failed to consider the “most important” Frentescu factor, “whether the type and circumstances of the crime indicate that the alien will be a danger to the community,” no true case-by-case determination had been made. Id. at 329-30. Because the BIA failed to engage in a case-specific analysis, the court held that the BIA‘s interpretation of “particularly serious” was arbitrary and capricious. Id.; see also Steinhouse, 247 F. Supp. 2d. at 208-09 (holding that failure to consider whether circumstances of an alien‘s crime indicated she would be a danger to the community in determining that she was ineligible for withholding was arbitrary and capricious).
[13] In this case, as in Yousefi, the BIA failed to engage in a case-by-case analysis. Nor is there any argument, as in Hamana, that Mr. Afridi‘s crime was “facially particularly serious.” We conclude that the BIA acted arbitrarily and capriciously in failing in its duty to consider the facts and circumstances of Mr. Afridi‘s conviction. Accordingly, we must grant the petition in part and remand to the BIA so that it can consider the facts and circumstances of Mr. Afridi‘s crime in determining whether he committed a particularly serious crime. See INS v. Ventura, 537 U.S. 12, 16 (2002) (holding that when a matter has been entrusted to the agency to determine, remand is appropriate).
[14] Mr. Afridi also contends that the BIA employed an improper legal standard in determining that he did not qualify for relief under Convention Against Torture. An applicant qualifies for protection under Convention Against Torture if he can show that if removed to his native country, it is more likely than not that he would be tortured by public officials, or by private individuals with the government‘s consent or acquiescence.
[15] Mr. Afridi argues that the proper standard was not applied to the facts of his case. Here, the BIA relied on the definition of “acquiesce” set forth in Zheng. Id. In applying this standard, the BIA concluded:
Although [Mr. Afridi] alleges he would be tortured if he returned to Afghanistan, we are unable to identify any particular factors in the record . . . to allow us to conclude that it is more likely than not that the [he] would be tortured by the Afghan government or that it would acquiesce to his torture if he returns to his country.
The BIA applied the correct legal standard in determining that Mr. Afridi is not eligible for relief under the Convention Against Torture.
V
Finally, Mr. Afridi argues that the denial of relief violated his due process rights. Mr. Afridi cites no legal authority for this argument. He asserts that the BIA denied him relief without “due consideration.” However, the BIA did address each
CONCLUSION
We DENY Mr. Afridi‘s petition for review of the BIA‘s finding that he is removable for having committed an aggravated felony.
We GRANT Mr. Afridi‘s petition for review of the BIA‘s determination that he committed a particularly serious offense. We REMAND with instructions that the agency engage in a case-specific analysis in determining whether Mr. Afridi‘s offense is a particularly serious crime, rendering him ineligible for withholding of removal.
We DENY Mr. Afridi‘s petition for review of the BIA‘s denial of his claim for relief under the Convention Against Torture. We DENY Mr. Afridi‘s petition for review insofar as it alleges that the BIA violated his due process rights by failing to exercise due consideration.
The petition for review is GRANTED in Part, DENIED in Part and REMANDED With Instructions.
Notes
Subparagraph (A) [proving for withholding of removal] does not apply to an alien deportable under section 1227(a)(4)(D) of this title or if the Attorney General decides that . . . (ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States . . . [f]or purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of the sentence imposed, an alien has been convicted of a particularly serious crime.