Delgado v. Holder

that, the BIA’s view for purposes of with- CANBY, JR., Before WILLIAM C. removal, holding of the applicable statute SILER, JR.,** E. EUGENE and permits the Attorney General to decide BERZON, MARSHA S. Circuit Judges. adjudication that an alien’s individual “particularly crime is serious” though even ORDER that crime is not classified as an aggravat- Delgado’s petition for panel rehearing is felony. ed that, We also conclude for pur- opinion GRANTED. This court’s of Octo- poses asylum, the Attorney General 8, 2008, reported ber at 546 F.3d and may by adjudication determine that a thereto, dissenting opinion hereby are crime is “particularly serious” without first A opinion WITHDRAWN. new and new classifying by so it regulation. concurring dissenting opinion are filed We further hold that we are without contemporaneously with this order. Del- jurisdiction to review the merits of that gado’s petition for en banc rehearing re- “particularly serious crime” determination pending regard mains to all issues for purposes of withholding of but claim, except his which is moot. jurisdiction conclude that we have to re- petitions panel Further or en banc view the purposes determination for rehearing may be filed with to the asylum. conclude Delgado’s We DUI new opinion accordance with qualify convictions do not Fed. R.App. P. 35 & and 9th R. Cir. crimes, and we therefore remand 40-1. Delgado’s asylum application to BIA OPINION for further proceedings. CANBY, Judge: Circuit Finally, we hold that substantial evi- Hernán Delgado petitions Ismael for re- supports dence the decision of the BIA of a view decision of the Board of Immi- Delgado failed to meet his burden of ** Siler, Jr., Eugene The Honorable E. Senior felony All three convictions were for DUI. accident, Judge injury One United States Circuit involved for the Sixth Cir- two cuit, prison resulted in terms of less than sitting by designation. five years. likely to we the decision of BIA and look than not review is more

proving he guide El oral decision IJ’s “as if returned Salvador. tortured lay what conclusion.” behind BIA’s Background INS, Avetova-Elisseva Cir.2000). 1192, 1197(9th citizen of El Sal- Delgado, a native vador, States on a non- the United entered I. The crime” bar twenty years over immigrant visa visitor Delgado ultimate issue raised Immigration and July ago. BIA in deciding whether the erred that his (“INS”)2 initiated Naturalization Service DUI convictions constituted him against because proceedings removal ineligible that made him crimes” Delgado con- his visa. overstayed he had withholding asylum. of removal A sought removability asylum, ceded but major question threshold whether is withholding of and CAT withhold- applicable permit agency statutes Immigration Judge deferral.3 The ing and Delgado’s “partic determine offenses to be (“IJ”) request Delgado’s for CAT denied ularly by adjudication serious” individual deferral, Delgado had failed to finding by regula certain limited likely he more than not to show that was tory jurisdiction requirements. We have if to El removed Salvador. be tortured 1252(a)(2)(D) under 8 U.S.C. to review of Delgado’s that each The IJ also found Gonzales, question this of law. Afridi felony DUI convictions consti- prior three (9th Cir.2006). 1212, 1218 442 F.3d “particularly serious crimes” tuted eligibility him from un- barred Although scope the issue of of the Attor- 1158(b)(2)(A)(ii), (and U.S.C. withhold- der 8 ney General’s that of the ing of removal U.S.C. BIA as an delegate) his determine that 1231(b)(3)(B)(ii), withholding and CAT alien’s crime is 1208.16(d)(2). BIA under 8 C.F.R. arises to both of IJ un- affirmed decision of the in an asylum, removal the statutory context decision published per signed curiam differs for each form of and raises relief member, appeal one and this followed. legal distinctive subissues. We therefore treat of separately. the two forms relief

Discussion A. Withholding Removal of specify The BIA it re- did not whether decision, An ineligible de novo the IJ’s stat- alien is of viewed but if, agreed on removal Attor- among things, ed that it with the IJ the basis “the alien, ney “the BIA’s decides that ... [it].” of record before conclusion, having judgment simple statement of a without been convicted a final crime, analysis, suggests particularly danger that it relied of a significant- situations, ly community on the IJ’s In such to the decision. United States.”4 1, 2003, sought 2. Effective review of the denial those forms of March functions Department INS were to the transferred relief. Security Security. Homeland Homeland 107-296, Act of Stat. Pub.L. No. upheld interpretation 4. We have BIA’s (Nov. 25, 2002). This transfer has no require "only this factual find statute Delgado's effect on the review of case. ing particularly of conviction of danger support crime the determination of Delgado sought also cancellation of removal community,” necessity without Nicaraguan Adjustment under the and Cen- separate finding danger. of such Ramirez- ("NACARA”), tral American Relief Act INS, (9th Cir. Ramos v. suspension deportation, he but has not 1231(b)(3)(B). pur- adjudication For the case individual crimes poses provision, of this are “particularly serious” though even who been of an alien has convicted they aggravated are not felonies. Matter (оr felonies) felony for which N-A-M-, 24 I. & N. Dec. 338-39 ag-

the alien has been sentenced to an (BIA 2007). precedential Such a opinion imprisonment term of of at gregate least is entitled to Chevron deference. See years shall be considered to have com- Garcia-Quintero, 455 F.3d at 1012. For mitted a serious crime. The forth, reasons we now set we con- previous preclude sentence shall not clude that interpretation the BIA’s determining from reasonable, and we ac- that, notwithstanding length of sen- cordingly defer to it.5 imposed, tence an alien has been con- victed of a serious crime. circuits, Two other which addressed the question naturally Id. The from arises issue weighed before the BIA in with a plain text is whether the last sentence precedential opinion, reached opposite re is meant to limit the General to Circuit, sults. The Third applying a textu aggravated the universe of felonies de- al and approach, structural concluded that or, preceding in the scribed sentence con- an offense “must be an aggravated felony versely, simply whether the last sentence ” ‘particularly to be serious.’ Alaka v. At preserves Attorney General’s authority torney States, General the United 456 of to determine a particularly crime to be (3d Cir.2006). 88, F.3d 104-05 The court serious regardless penalty of the or its reasoned that the sentence allowing the designation or non-designation ag- as an Attorney General to determine that a gravated felony. particularly crime is serious “notwith At the time the present appeal was standing length of imposed,” sentence argued, the BIA had not addressed this § 1231(b)(3)(B), “explicitly refers in precedential opinion, issue a in this case ‘previous sentence,’ back to the and ac any or other. An unpublished by decision cordingly implies Attorney that [the Gen a single BIA member is not entitled authority] eral’s is limited to aggravated to the prescribed by itself deference Chev felonies.” Id. The Seventh Circuit disa U.S.A., ron Inc. v. Natural Resources De greed, concluding that “the absence of a Council, Inc., 837, 842-13, 467 U.S. fense provision ... for nonaggravated-felony (1984). 2778, 104 S.Ct. 81 L.Ed.2d 694 crimes does not imply only aggravat Garcia-Quintero Gonzales, v. 455 F.3d ed qualify felonies can as ‘particularly seri (9th Cir.2006). 1006, 1012-14 Recently, Achim, ous’ 462, crimes.” Ali v. however, a panel three-member of the — (7th Cir.2006), dismissed, 470 cert. BIA issued an published opinion extensive 1231(b)(3)(B) U.S. -, holding permits 128 S.Ct. 169 L.Ed.2d 624 (2007). Attorney to by ease-by- decide 1987). 2007). There, analysis We therefore confine our we remanded to the BIA for a question here to the "particularly redetermination, serious” legal based on the correct crimes, any separate and omit consideration standard, non-aggravat of whether Morales’s danger community. felony ed "particularly constituted a crime.” Id. at 983. Because the Gonzales,

5. In Morales we assumed without interpretation squarely analysis that the General could deem here, depth contested we address the issue in non-aggravated felony "particularly seri for the first time. 972, 980-81, (9th ous.” 478 F.3d Cir. serious, de particularly so that individual persuasive BIA found Sev

The designation that the view to those crimes enth Circuit’s terminations per See, “par felonies sе aggravated e.g., certain not did have to be undertaken. preclude not does ticularly Garcia-Garrocho, serious” I. & N. Matter deciding, on a from case- 1986). (BIA Dec. other, basis, nonaggravated by-case barring those statutory provision “particularly also seri felony crimes are crimes convicted of serious” position of this adoption The BIA’s ous.” from of removal eligibility does lim The statute not reasonable. was then three The Im- was amended times. it the definition Act”) (the migration Act of 1990 “1990 Nor it aggravated felonies. does crimes to 243(h): following language added the Attorney General, require expressly “an has been convicted of alien who a crime considering whether that is when aggravated felony shall be considered categorically barred have committed serious,” only aggravated to consider felo 101-649, crime.” Pub.L. No. 104 Stat. imposed was less nies where sentence history Nothing in the text years. five than suggests Act history legislative intended, by making felonies bar, BIA serious crime referred crimes,” per se to di- “particularly serious N-A-M-, N. Dec. at I. & vest the General of his interpretation. supports basis, determine, case-by-case on 243(h) Immigration and Nationali- serious,” other crimes were deny ty Act was amended to depending on the circumstances of their “having been to an individual who convict- And, commission, among things. a by judgment particularly ed a final Act, notwithstanding agency the 1990 the crime, danger a constitutes to the serious adjudicate that it could a crime understood community of the L. United States.” Pub ease-by- to be a “particularly serious” on 96-212, (1980). 202, 102 No. 94 Stat. INS, case basis. See Ahmetovic provision, the BIA Under determined Cir.1995) 48, (2d 52 (agreeing with BIA’s case-by-case which on basis crimes were that a crime be an conclusion need not serious, applying balancing the aggravated felony adjudicated “par- to be Frentescu, test of Matter 18 I. & N. serious”); B-, I. (BIA 1982).6 ticularly Matter 20 & 244 Dec. This test did not (BIA 1991) 427, (applying N. Dec. 430-31 take into account whether crime Act to Frentescu factors the 1990 statutorily had been issue defined as time, alien “aggravated felony.” In BIA determine that the had been convict- crime).7 inherently crimes as ed of a particularly denominated some view, weight, BIA 6. The looked "to such factors as the more in our than the canons of conviction, upon by nature of circumstances relied dissent. Can- construction conviction, underlying facts of the ons de- construction "are tools and, type imposed, impor- signed help of sentence most what courts better determine intended, tantly, type whether Congress circumstances of not to courts to inter- lead crime indicate that the alien will be pret contrary to the law that intent.” Schei- v, Frentescu, danger community.” 9, 23, Women, 18 I. Org. dler 547 U.S. Nat'l 1264, (2006). & N. Dec. at 164 10 S.Ct. L.Ed.2d States, also Nation Chickasaw v. United 84, 93-95, long history case-by-case U.S. 151 L.Ed.2d 7. The determina- S.Ct (2001). "particularly tion of bears crimes per category interpretation relaxed the se reasonable, the statute created the 1990 Act in 1996 with the and conclude that the BIA was entitled to 413(f) passage of section of the Antiterror determine, by adjudication, that Delgado’s Penalty ism and Effectivе Death Act of DUI convictions were 104-132, Pub.L. No. 110 Stat. crimes that him barred from eligibility for (1996) (“AEDPA”). The AEDPA withholding of removal under 8 U.S.C. 243(h) amended to allow the CAT un- General, discretion,” “in to override [his] 1208.16(d)(2). der 8 C.F.R. categorical designating aggra bar all vated felonies serious” when Asylum B.

“necessary compliance to ensure with the We now turn to whether the BIA Relating 1967 United Nations Protocol to was authorized to determine that Delga Refugees.” categor the Status of Id.8 The do’s crimes were serious” for again ical year bar was relaxed later that the purposes of his application. passage Illegal Immigra with the Just as in the context of withholding, the Immigrant Responsibility tion Reform and provides relevant statute that an alien is Act of Division ofC Pub.L. No. 104- ineligible for asylum if the Attorney Gen (“IIRI- 3009-546, 110 Stat. 3009-602 alien, eral determines that “the having RA”). provision IIRIRA enacted the been convicted ‍​​​‌​‌​‌​‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‌‌​​​‌​‌‌‌​‌‌​​​‌‌‌‍of a particularly serious here, application issue which limits crime, danger constitutes a to the commu categorical bar to felons sen 1158(b)(2)(A)(ii). nity.” 8 U.S.C. For years’ tenced to 5 imprisonment. more the purposes provision, of this “an alien Id. who has been convicted judg final recognize We that one of the aims of ment of an aggravated felony shall con Congress in enacting post-1990 statu- sidered to have been convicted of a partic tory probably amendments was to avoid ularly crime.” sweeping minor crimes into the categorical 1158(b)(2)(B)(i). addition, At “[t]he aggravated felony nothing bar. But in the torney may designate by regula legislative history Congress indicates that tion offenses that will be considered to be intended, by creating a categorical bar and ” [particularly crime.... serious] by bar, later relaxing categorical to 1158(b)(2)(B)(ii). U.S.C. Attorney eliminate the pre-exist- General’s There seems question little that this last ing that, discretion to determine under the provision permits Attorney the presented by circumstances General to an individual case, particular make serious,” a crime crimes “particularly categorically “par- was ticularly whether or not aggravat- the crime was an serious” even though they are not felony. ed We therefore find the aggravated BIA’s provision felonies. The would Although legislative history 8. sparse, quotations omitted); the is ternal and citation see INS, purpose (1st there seems to be no doubt that one also Choeum v. 42-44 1997) prevent (accepting of this enactment was to argument violations of Cir. INS’s Refugee the by expansion Convention's amendments were fueled non-refoulement provision might "aggravated rigid felony”). of the term occur because of a application aggravated felony of the bar. See Q-T-M-T-, Matter I. &21 N. Dec. precedential 9. The BIA's decision in N-A-M- of (BIA 1996). treaty n. 4 Such 1158(b)(2)(B)(I) violations were did not address because the because, time, becoming likely more at the asylum application untimely. in that case was the expanding, list of felonies was We therefore precedential have no decision of categorical and a bar could have included the BIA to be accorded Chevron deference on (in- "fairly sweep. precise minor offenses” in asylum quеstion presented its Id. the here. of a crime made Attorney of alien’s commission if Gen- wholly be redundant serious, making only aggra- crime particularly to even eral confined were crimes serious” “particularly by vated though felonies same offense committed question The different by regulation. persons circumstances other statute whether asylum posed by this necessarily would be seri- by can determine Attorney General require ous. The does not statute an individual alien’s adjudication that Attorney anticipate adjudi- his General to serious,” wheth- “particularly crime was by covering each regulation par- cation provide that by regulation er he must first Ali, ticular 468 F.3d at 469. crime. See is to be so character- particular crime that the BIA We therefore conclude did ized. in proceeding by not err to determine ad- stat- Our discussion judication, regulation, in the absence as with ute is Just withhold- instructive. Delgado “partic- whether had committed initially made ing, the deter- agency ularly crime that him rendered an alien’s crime was mination whether ineligible asylum. strictly by adjudica- particularly serious tion, the Frentescu factors. See applying the BIA’s C. merits decision Frentescu, N. Dec. at 247. 18 I. & Con- Withholding Removal only to gress Act intervened (aggravated ensure certain crimes question next decision is felonies) categorically deter- would be may whether we review the merits serious,” re- mined to be Delgado’s BIA’s determination that DUI gardless of their of the circumstances convictions were then added its commission.10 crimes.” to With permission General that we not.11 wе conclude “designate regulation cases statutorily are from precluded We re- be to be offenses that will considered viewing decisions It [particularly crimes].” Id. specified “the for which is interpret provi- most this reasonable subchapter to be in the discretion of similarly sion concerned with the cate- ..., other than the gorical designation of additional crimes as 1158(a) granting relief under section Indeed, it would serious.” [relating asylum].” this title designate be regulation difficult 1252(a)(2)(B)(ii). INS, In Matsuk v. crimes to be that “will considered” (9th Cir.2001), presented F.3d 999 were we designation serious unless BIA determination that an pro- is for those crimes. The categorical in a aggravated felony resulting sentence speak ability vision does not to the simply years imprisonment of less than five was a Attorney General to determine in an case that the circumstances serious” crime. We held that individual section, serious,” previous larly purposes of both 10. As we described in the Ali, removal, categorical its bar withholding relaxed some- of see 468 F.3d regard withholding what with removal. of contrary took a at but the Third Circuit asylum. regard It did do so with not involving position withholding of in a case 94-101, removal, Alaka, F.3d at as did 456 split on Other circuits have this issue. 11. asy- the Second Circuit with both juris- Circuit holds that it is without Seventh withholding Nethagani v. lum and of the merits of the determina- diction to review (2d Cir.2008). Mukasey, 532 F.3d "particu- to have tion of an alien's crime been ruling the BIA’s was an unreviewable holding dis- of removal is still an unreviewable cretionary meaning decision within the of discretionary decision. soWe stated in statutory Gonzales, bar. Seе id. at 1002. In Unuakhaulu v. (9th Cir.2005). explaining ruling, later we stated: Then, in v. Gon- Afridi (9th zales, 442 F.3d Cir.2006), decision at issue in [T]he Matsuk— we were presented with a classify past whether to an alien’s of- case where the IJ had denied ‘particularly fense as a of crime’ removal on the ground a decision that conviction of a “particularly seri- —is crime,” entirely lacking statutory guide- is ous but had engage failed to in a lines. the language case-specific application Under of the stat- of the Frentescu ute, this decision left entirely to the factors. Id. at 1219. We determined that General, discretion of the law, with this point failure raised a and we no governing statutory standards. remanded for further proceedings. Id. at so, In doing however, 1219-21. recog- we Enters., States, Spencer Inc. v. United nized the question limits of the of law that (9th Cir.2003). F.3d The lan- we deciding: were “While we cannot re- guage that Spencer Matsuk and found to weigh evidence to determine if the crime “specify” authority discretionary to be serious, was indeed particularly we can General, within the mean- determine whether the applied BIA 1252(a)(2)(B)(ii), ing of was the legal correct making standard in its deter- provision denying withholding “if the At- mination.” Id. at 1218.13 reading A fair torney General decides that ... an alien is that the ultimate has been convicted determination Afridi 1231(b)(3)(B); crime.”12 8 serious” nature of a U.S.C. crime see for purposes of Spencer, also F.3d 689-90. removal is subject to our review. After the decisions in Matsuk and Spencer, Congress recently, Most enacted the REAL ID we decided in Ramadan Gonzales, (9th Act of which v. provides nothing Cir.2007), 479 F.3d 646 provision that in limiting review of our preserving the Attor to review ney law, discretionary questions General’s decisions the REAL ID per- Act “shall be construed as precluding review of mitted us to questions review mixed of law questions constitutional claims or of law and fact. Id. at 654. Ramadan made upon petition clear, raised however, for review.” 8 that the REAL ID Act did 1252(a)(2)(D). U.S.C. Our decisions sub not “restore jurisdiction [our] over discre- sequent clear, to the REAL ID Act make tionary determinations.” Id. it gave And however, that the ultimate determination as an example of a statutorily-specified General that a crime discretionary determination “Attorney purposes serious” for of with- General’s determination ... aggra- Judge BIA, concurring dissenting however, Berzon's argument and we there and, us, opinion per- here offers trenchant fore Socop-Gonzalez not consider it. ruling INS, suasive 1176, criticisms of this of (9th Cir.2001). Matsuk. As 272 F.3d 1183 We however, opinion recognizes, her we are regulation note as barring well that the relief three-judge panel bound as a to follow Mat- ground on the "particularly of serious suk. 1990, promulgated crimes” was first well Delgado pleaded guilty before to his first DUI Delgado INS, charge. 13. Kankamalage contends that the IJ committed See v. legal (9th by applying “particular- Cir.2003). error the bar of 860 Later bars ly retroactively serious crime” to his the preceded Delgado's 1992 to same effect last two Delgado present DUI conviction. did not this DUI convictions. See id. at 861 n. 1. 872 mining Delgado’s that convictions DUI felony particularly is a serious

vated It “particularly Id. 655. serious crimes.” crime,” citing Matsuk. werе there- precedent, under our clear seems our already explained, As we have questions review fore, authority to that the case-by-case the de precedent establishes of law and fact mixed questions law or of “particularly termination of a serious a Act did include the REAL ID under crime” be an exercise of discretion. We to review a determination power to that an accordingly review for decision “partic- a crime was that INS, of v. 95 abuse discretion. Surita of ularly purposes (9th Cir.1996) that a (holding F.3d removal. of of discretionary asylum denial is reviewed discretion). for abuse of Asylum out, dissenting opinion the points As the quite dif precedent circuit Our origin serious crime” however, ferent, eligibility to with category Relating the was Convention Gonzales, In v. asylum. Morales 28, 1951, Refugees, July Status of (9th Cir.2007), petitioner had F.3d 972 U.S.T. 189 U.N.T.S. 150. The Con- asylum both been denied to a prohibits returning vention an alien had ground removal on the she of country his “life or freedom would where particularly of a serious convicted been specified on be threatened” account of 1252(a)(2)(B)(ii) crime. We noted grounds, exception for aliens con- jurisdiction any of stripped us review “a crime.” victed of “specified” action of Convention, requirement art. 33. This discretion, “other to be his than exception Immigra- were written into the granting relief section Nationality Act by Refugee tion and 1158(a) 1158(a)....” governs the Section Act of 1980. See INS Cardoza-Fonse- asylum. application of aliens for We ca, 421, 429, U.S. 107 S.Ct. asylum denial of therefore held that “[t]he (1987). L.Ed.2d the Conven- Although spеcifically it is ex is reviewable because tion not define 1252(a)(2)(B)(ii)’s did jurisdic empted from crime,” exception it did create another tion-stripping provisions.” Id. at 980. aliens had a “serious non- who committed only presented issue for re political country crime” outside in Morales view was seri Convention, refuge. art. l.F.b. As crime” bar. therefore clear that ous It is stated, BIA “it clear that jurisdiction held have has should be Morales that we issue, ‘particularly equiv- not the ruling serious crime is governs review therefore, nonpolitical alent of a crime.’ Fur- present proceed, case.14 ‘serious our We ther, a more ‘particularly examine whether the IJ erred in deter- serious crime’ is ruling, recognized also that we issue. Morales 14. Morales had no serious crime” so jurisdiction to review the General's deferred to BIA determinations of the records discretionary finding DUI considered. BIA subse decision convic- quently precedential to be its tions crimes for modified stance in decision, N-A-M-, Dec. purposes withholding Matter 24 I. & N. as indi- to that proge- recently cated our Matsuk and at 342. We have deferred decision in its ruling, ny, opinion. BIA all reli permitting discussed to consider earlier in Morales however, withholding, making particularly ser remanded the able denial of information Anaya-Ortiz v. it held IJ had ious determination. because that the committed crime (9th legal Cir. parts Mukasey, error in the it F.3d 1275-76 record that 2009). determining "particularly considered in ‘serious nonpolitical than a the standards of recent for decades ” Frentescu, 18 I. & N. crime’.... Dec. at serious crimes. It is true that driving to a nonpo- 247. With reference “serious under the be dangerous, influence can crime,” on litical the Handbook Procedures at Delgado’s episodes least one of was. Determining Refugee and Criteria for Sta- Yet injure. there was no intent crime tus states that “a ‘serious’ must be a crime or reckless, itself is careless even very grave punishable capital crime or a but requires no intent and is nearly “most ¶ Handbook, act.” HCR/ comparable that impose crimes to[ ] strict (Jan.1992). Frentescu IP/4/ENG/REV.1 — liability.” States, United Begay v. went on to state that determinations U.S. -, -, 1581, 1586, 128 S.Ct. particularly would serious crimes be made (2008). Thus, L.Ed.2d 490 pur basis, case-by-case on a with reference to poses DUI has been held not to be a “such nature of factors as the the convic- Id.; felony. violent v. Ashcroft, Leocal tion, underlying the circumstances and 1, 4, U.S. 125 S.Ct. 160 L.Ed.2d 271 conviction, the type facts of the of sentence (2004). It certainly and, reprehensible importantly, imposed, most dan- [the] Frentescu, crime, ger to community.” especially repeated 18 I. & when it has N. Dec. at 247. been by Delgado, Delgado’s but offenses had no distinguishing characteristics that We accord Chevron deference to elevate them high levels inherent in in precedential the BIA’s discussion origins Frentescu, decision of but that discussion exception. crime” It violates the princi does not itself determine whether DUI ples underlying the Convention and the particularly is a crime. The deci Refugee Delgado’s Act to hold IJ, DUI single relying sion of a on a crimes prece serious,” ruling, dential that DUI is a to be рarticularly so as deny serious crime does not command Chevron him eligibility for relief from repatriation deference. Marmolejo-Campos country to a even if he is able to demon (9th Holder, Cir.2009) strate a fear of persecution “well-founded (en banc). race, religion, on account of nationality, membership in particular social group, or ap

When the Frentescu factors are 1101(a)(42).15 political opinion.” plied the context of the international origins serious crime” conclude, therefore, We the IJ exception, we conclude that it was ruling abused his Delga- discretion hold Delgado’s abuse of discretion to do’s DUI convictions were ser- convictions are serious crimes. ious crimes that him ineligible rendered Surely they “capital do not exceed asylum. that ruling Because of of ine- grave” nonpolitical standard of “serious” ligibility, neither the IJ nor the BIA ad- crimes, par and Frentescu indicates that Delgado dressed whether met the substan- ticularly serious crimes should exceed that requirements tive and should standard. Delgado’s sentences for the granted relief. grant We therefore three offenses were incarceration for Delgado’s petition months, months, for review with and 24 months —sub long asylum claim, stantial but no means to his sentences and remand that mat- Marmolejo-Campos, ground disqualification F.3d not a asylum. we deferred to the BIA's decision that DUI from The framework of the Conven- Refugee after revocation of license was a crime of tion and Act therefore did not enter turpitude, morаl but that decision dealt calculation. BERZON, in Judge, concurring Circuit appropriate for further to the BIA ter in dissenting part: and part proceedings. majority opinion seriously is off-

The respect holdings, first the Convention track with to its two Relief II. regarding asylum final is but its conclusion Against Torture asylum review the BIA’s correct: We jurisdiction pursuant haveWe holding crime” on the “particularly serious 1252(a) the BIA’s to review to 8 U.S.C. and, merits, so, can doing only we conclude deferral, for claim CAT Delgado’s denial finding that the IJ abused his discretion 980-81, and we Morales, F.3d see Delgado ineligible asylum. that was for evi for substantial that decision review jurisdiction to our over the merits of As Ashcroft, F.3d v. dence. Bellout issue, agree of removal I withholding Cir.2004). (9th eligible In order to be prece- we are Ninth Circuit that bound deferral, that Delgado prove must for CAT dent, precedent quite but believe that to be tortured likely than to be he is more wrong, as well inconsistent with the law as Id.; El Salvador. his upon return it has been circuits. developing 1208.17(a). C.F.R. my To summarize views: noted, Delgado present As the IJ . important, First and most neither of mother, probably and that his ed evidence majority’s holdings concerning two father, rampant of the were victims his provisions crime” of 8 “particularly serious place 1231(b)(3)(B) that took rights violations human §§ and U.S.C. early late and in the 1970s El Salvador prin- the most can reconciled with basic However, provid Delgado has not interpretation. 1980s. ciples currently that he ed sufficient the “particularly concludes evidence if he to his harmed returns being asylum risks serious crime” exclusions Country indicate country. reports nearly mean native removal im thing, substantively in El Salvador have and proeedural- conditions same structure, significantly Delgado though language, since left the proved ly, even is evi country, longer purpose, that there no context two sections violence, quite simply kill are all different. That cannot politically dence of motivated below, For the I discuss in El Salvador. be. reasons ings, disappearances only “particular- deci viable construction We therefore conclude the BIA’s provision ly crime” is not entitled to CAT Delgado sion version, 1231(b)(3)(B), is is evi supported deferral substantial only aggravated “par- felonies can be dence. ticularly only crime[s].” And interpretation asylum “partic- viable Conclusion ularly crime” provision, granted review petition is 1158(b)(2)(B), that the Gen- is claim, and that regard Delgado’s non-aggravated eral can make felonies matter is for further remanded BIA only through crimes” “particularly serious regard to appropriate proceedings. With case-by-case regulation, not on a basis. claims, Delgado’s petition all his other Second, majority properly relies on denied. (9th INS, Cir. Matsuk 2001), part, DE- BIA’s PETITION GRANTED in that the determination hold part, NIED in and REMANDED. that a crime

875 withholding discretionary Relating Refugees, purposes Status 19 reviewable, (“Conven- I 6259, and so concur in sec- so not U.S.T 189 150 U.N.T.S. C(l) opinion, tion”). tion of the with one prohibits The Convention states 4413-14, supra. But Mat- pp. caveat. See from an alien to a “return[ing] country recently faulty premises, suk rests on re- where his ‘life or would freedom be threat- jected by and Third Circuits in the Second ened’ on account of one the enumerated view, my convincing opinions. Matsuk Cardoza-Fonseca, reasons.” INS v. 480 should this Court sit- be reconsidered 421, 1207, 429, U.S. 107 94 S.Ct. L.Ed.2d ting en banc. (1987). exception 434 An to this rule per-

Third, majority is correct as who, to its “having mits removal of an alien been application reliance on and Morales. I convicted ... of a C(2) in part therefore also concur of the crime, danger ‍​​​‌​‌​‌​‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‌‌​​​‌​‌‌‌​‌‌​​​‌‌‌‍constitutes a to the commu- majority’s do not opinion address it nity country.” Convention, of that art. further in this concurrence. 33(2). duty Both the remove not to an alien to Particularly

I. Serious country a persecution where such likely Exceptions Crime and the “particularly serious crime” excep- A. Overview tion adopted by were the United States it Congress’s goal when created the through 1967 accession to the UN Protocol was, “particularly exception crime (“Proto- relating to of Refugees the Status part, in basis for provide removal of col”), 6223, 19 606 267, U.S.T. U.N.T.S. certain aliens of criminal convicted of- obligations which includes the previously fenses that conforms to our international enumerated in the Convention. Both the purpose commitments. This resulted in duty and exception incorporated, were key “particularly differences between turn, Immigration and Nationality provisions applicable serious crime” (“INA”) Act Refugee Act of 1980. applicable asy- and those Cardoza-Fonseca, 480 U.S. at majority’s opinion lum. The considers nei- 1207; Frentescu, S.Ct. Matter 18 I. & origin “particularly ther the (BIA 1982). N. Thus, Deс. 246 n. provisions crimes” nor obvious differ- thing legislative “[i]f one is clear from the them, ences between and so comes to the Act, history of the ... it is that one provi- erroneous conclusion the two Congress’ purposes primary was to essentially sions are both identical and es- bring refugee United States law into con- result, sentially majori- As a limitless. formance with the 1967 United Nations ty procedures allows to BIA’s stand the Protocol Relating to the Status of Refu- determining Delgado’s whether DUI con- Cardoza-Fmseca, gees.” 480 U.S. at victions were each 107 S.Ct. 1207. crimes,” purposes both Consistent purpose, with this the Su- relief, that, conclusion as I preme interpreted Court has terms used show, Congress’s shall clashes with under- these refugee amendments to the lying basis for adopting INA in light meaning of their under the serious crime” exception. Convention and Protocol. See id. at 439 Refugee 1. The Convention nn. 22 (citing & S.Ct. UN and Protocol High Refugees, Commission for Handbook on Procedures original “particu- source term and Criteria Determin- B(2)(a) larly Status, ing Refugee §§ serious crime” is the 1951 II Convention Ch. 37- under the (1979) (“Handbook”), serious crime” and 1 A. Grahl- Protocol, then, Madsen, Refugees in Inter- and an offense The Status Convention of (1966)) (interpreting “very than just any Law 180 must be serious national more 243(h) §in used “refugee” as term act.”1 grave punishable Act, through reference by 1980 INA interpretation “particu- an of While such meaning under the Proto- of its analysis overly nar- larly crime” seem serious col). “particularly serious meaning of The row, premis- it with the basic is consistent and Protocol under the Convention crime” a of Conviction for es the Convention. interpreting in important critically thus is permits crime” re- “particularly serious term the INA. the same in a it is country moval of an alien to where a how serious is Taking approach, deprived he will be of “life or probable that The crime”? Conven- serious protected grounds. of freedom” on account provide not a defini- tion and Protocol do (2). 33(1), reason re- Convention art. The tion, compari- a for they but do offer basis justi- moval circumstances is under these In Matter son with other offenses. of a is alien has committed fied Frentescu, pointed out that be- BIA that, even crime so serious if he remained also an cause the Convention established country refuge, in his of its would be state withholding of removal for exception justified grave imposing punishment in crimes” an has nonpolitical alien “serious upon him. country where he committed outside case, the BIA this determined “it should be clear that a refuge, has taken Delgado ineligible for was crime’ ... serious is more ‘particularly three withholding of removal because his than a nonpolitical ‘serious serious ” DUI convictions constituted a added); (emphasis crime.’ Id. at 247 see 1231(b)(3)(B) §§ serious crime” under both 1231(b)(3)(B)(iii); Conven- also 1158(b)(2)(B), relating withholding 33(1)(F) (establishing tion art. asylum respectively. of removal committed a serious nonpoliti- “alien [who] was for Among these offenses a conviction crime cal outside the United States before influence driving causing under the death in the the alien arrived United States” bodily injury, which from an resulted removal) eligible Delgado passenger accident where and his added). words, (emphasis In other an of- (and unclear, possibly, though record is than a fense that is less serious “serious vehicle) occupants of the were “particular- a nonpolitical crime” cannot be seriously I mini- injured. way While in no Handbook, ly serious crime.” which offenses, mize the of Delgado’s seriousness significant “provides guidance constru- which, I do not how a as the see Protocol,” Cardoza-Fonseca, ing DUI' — majority recognizes, “aggravated is not an n. U.S. at 439 107 S.Ct. describes felony” immigra- our purposes own as non-political capital a “serious crime” “a law, Maj. be a Op. tion see 865-66—can very grave punishable crime or act.” ¶ (1992 ed.). Handbook, To crime” in the sense qualify as conviction, legal Confirming understanding excep- system, would in our own scope specific examples tion’s are the typically punishable or a life death "particularly crime” offered (offering examples id. sentence. See as leading on the Convention. See commentator “blowing up crimes ... Grahl-Madsen, Commentary Refugee on the passenger airplane in- in order to collect life Convention, 1951, (1997). art. 33 cmt. 10 surance, killing public or wanton examples given are instances of murder place.”). circumstances, aggravating with which understood the term when The obvious differences in the statutory it into the INA—-at text of these two incorporated suggest it least subsections three meaning. distinctions in respect which, I explain shortly, is the bedrock First, category per “particular- se protection danger per- afforded aliens in ly serious crime[s]” broader the asy- in them home countries on a pro- secution lum context than it is in the case of with- ground. tected holding of removal. Section

makes all aggravated per felonies “par- se Asylum Withholding ticularly asylum serious for pur- crime[s]” of Removal poses, 1231(b)(3)(B), § while pertaining to removal, withholding of only makes aggra- A conviction a “particularly for serious vated felonies “for which the alien has crime” makes an ineligible asy- alien for been sentenced to an aggregated term of lum, as well as for of removal. years least five imprisonment” per a se 1158(b)(2)(B) 1231(b)(3)(B) (asylum); § category serious crimefs].” However, (withholding). “Congress has Second, asylum, the stat- drawn critical distinction in its use ” utory structure and language suggest no ‘particularly term serious crime’ express limitation as to which may crimes 1158(b)(2)(B) compared with the use designated as “particularly serious.” 1231(b)(3)(B), of the same term in In re Rather, aggravated all felonies per are se (BIA L-S-, 1999), 22 I. & N. Dec. “particularly serious,” and other crimes good reason. may be so designated. contrast, In Regarding eligibility withholding of provision removal confers 1231(b)(3)(B) that, states Attorney on the General the authority to alien who has been [A]n convicted of determine that an offense is a “particularly (or felonies) aggravated felony for which serious crime” notwithstanding the length the alien has been sentenced to an ag- imposed, of the sentence but does not con- gregate imprisonment term of of at least any fer express authority to designate non- years shall be considered to have com- aggravated felonies as “particularly seri- mitted a particularly serious crime. The ous.” previous sentence shall not preclude the Third, the two subsections define differ- Attorney General from determining ently how offenses outside of these per se that, notwithstanding the length of sen- categories may be determined to constitute imposed, tence an alien has been con- particularly serious crimes. The victed of a particularly serious crime. provision states that “the Gener- eligibility asylum, the case of may al designate by regulation offenses establishes that will be particularly considered that, added). (emphasis contrast, crimes.” By alien who has been the withholding provision gives

[A]n convicted of an the Attor- aggravated felony ney general authority shall be considered to General the to “de- have been convicted of a termine” whether a particularly crime is particularly serious, indicating any serious crime. per- otherwise missible method of determination al- ... may desig- lowed. by regulation nate offenses that will be [particularly considered to be a serious] concludes that these obvi- crime ... ous distinctions are without much practical would be “life or freedom view, alien whose majority’s On difference. country which [to in that threatened “particu- the two between only difference because removed] would be is that for alien otherwise exceptions crime” larly serious Withholding of ground]”). protected felonies of[a all asylum purposes crimes, the minimum lev represents thus removal per are se only aggra- required the Convention withholding purposes el of relief while for 1231(b)(3)(A), Compare the sentence was Protocol. for which vated felonies 33(1) automatically that no Convention, (stating are Con years art. than five longer (‘refouler’) As to “return tracting State particularly serious. designate territories ... the frontiers of refugee ultimate General’s —to serious—and be threat crime as life or freedom would any where his par- crimes as designate methodology protected ground]”). [a on account of ened —to regulation or on ticularly mandatory if an Accordingly, such relief is majority sees the case-by-case basis—the U.S.C. eligible. alien Why Congress as identical. 1231(b)(3)(A)(“[T]he two statutes General parallel the otherwise to word bothered if country an alien to may not remove when differently in this so sections decides not told. thing we are it meant the same be threatened life or freedom would alien’s added)); country (emphasis ...” in that guidance provided together Taking Stevic, 15, at 421 n. 104 S.Ct. 467 U.S. by the to abide by Congress’s intention very dif- and the and Convention Protocol Congress used statutory language

ferent contrast, asylum an eligible to be for By withholding of asylum and regard to it is to show required alien is not my interpretation begin I would not,” 424, likely than id. at 104 S.Ct. “more ma- by recognizing of the statute 2489, in the persecuted that he will be —as Congress wrote two jority does not'—-that he would be removed. country to which pro- crime” “particularly different Instead, that he has only show he need it meant two different because visions a protected on account of persecuted been withholding Critically, asylum and things. in that he has a “well- ground past, or ways under the INA of removal differ in the future. persecution fear” of founded “partic- in their than the differences 1101(a)(42)(A), §§ 8 U.S.C. See and do so ularly provisions, crime” 1158(b)(1)(A). such a well- To establish and the ways connected to the Protocol fear, only need show applicant founded go a These other differences Convention. persecution. See a one in ten chance why explaining “par- long way toward Cardoza-Fonseca, 480 U.S. con- exception crime” is ticularly serious time, grant 1207. At the same S.Ct. substantively more siderably but broader aliens is discre ing asylum eligible asylum than procedurally for restrictive mandatory. 8 U.S.C. tionary, not withholding for of removal. 1158(b)(l)(A)(“(T)he Attorney added)). (emphasis ...” may grant asylum granted withholding

For an alien to be discretionary benefit that this The reason INA, he must show of removal under country’s obligations consistent with this is likely than not” that he that it is “more Protocol, and Convention country in the to which persecuted will be Congress’ intention to therefore with removed. INS v. he otherwise would be into con refugee law Stevic, 407, 424, 104 “bring United States S.Ct. U.S. Protocol,” Cardozar- with the ... (1984); formance L.Ed.2d Fonseca, 436, 107 1231(b)(3)(A) 480 U.S. at S.Ct. removal of an (prohibiting eligibility asylum for for provide uniformity that the standards for with regard to cate are more relaxed than the Convention and gories By contrast, of crimes. aliens who result, require. As a Protocol as qualify for withholding of removal are understood, asylum need not conform all mandatorily reliеf, entitled to such see respects with the international commit- Stevic, at 421 U.S. n. 104 S.Ct. ments, long as relief withholding does 2489, so there case-by-case could be no so conform. individualized “determin[ation]” based on history criminal specific

These substantive differences between without asylum withholding of removal under E authorization. important implications the INA have for Second, the difference between the eli- excep- how the serious crime” gibility and discretion applica- standards applies tion to each form of relief from asylum ble removal Withholding removal. of removal helps explain why also Congress made all Congress’s goal form of relief essential to felonies, only those with of “conformance with the ... Protocol.” years more, sentences of five per se Id. at That can goal S.Ct. 1207. crimefs]” only be achieved if a “particularly serious purposes why and also Congress did not crime” for which an alien eligibil- is denied restrict serious crimes” to ity of removal under the aggravated felonies purpose. qualifies statute also as such under the asylum Limitations on relief do not risk asylum, Protocol itself. Not so with be- Protocol, violation of the long so as with- relief, whole, asylum cause as a is not holding of removal relief conforming to structured to conform to the Protocol. See, the Protocol remains available. gen- This critical substantive distinction be- (stat- erally, L-S- I. & N. Dec. at 652 asylum and withholding tween of removal ing that “the reason for [Congress’] ... suggests key question some answers to the 1158(b)(2)(B) § approach” different and majоrity, puzzlingly, that the does not even 1231(b)(3)(B) § is that “Congress under- Why Congress ask: did in IIRIRA adopt stood that in enacting revised section distinctly statutory language such different 1231](b)(3), it carrying [§ was forth the “particularly to define the same term — statutory implementation ... of our inter- 1231(b)(3)(B), serious crime”—in relat- treaty obligations”). national Consequent- removal, ing withholding to of and in ly, Congress there was reason for to take 1158(b)(2)(B), relating asylum? The particular care with to evident reasons are two. of to assure that aliens who oth- First, respect asylum with excep- the statutory erwise meet the requirement for tion, Congress give did not need to the relief are only denied this relief for of-

Attorney authority General the to “deter- likely “partic- fenses are to meet the case-specific mine” on a which of- basis ularly exception serious crime” in the Pro- fenses constitute “particularly serious tocol. eligible asy- Even for aliens erime[s].” majority eye turns a blind to all of lum, Attorney the General can exercise these meaning considerations —the grant asylum discretion not to because of “particularly serious crime” locution in the record, alien’s criminal the whether the documents, original internal the differ- alien has committed a serious asylum ences and withholding between re- only specify crime” or not. The reason to lief, the obvious asylum serious crimes” for distinctions between eligibility purposes, consequently, withholding “particularly is to the surpris- previous preclude Not sentence shall not exceptions. crimes” that, approach, given Attorney determining out-of-сontext General from

ingly, its majority’s conclusions on length ultimate im- notwithstanding of sentence are crime” issues “particularly serious been of a posed, an alien has convicted n wrongas well. Quite crime.” obvi- ously, “deter- conferred —to 1231(b)(3)(B)— B. 8 U.S.C. that, length notwithstanding min[e] Withholding of Removal an con- imposed, sentence alien has been concludes victed of a crime”— 1231(b)(3)(B) Attorney authorizes the refers the limitation in “the imposed any designate non-aggravated previous the offense sentence”—whether felony as a serious crime” for carried “aggregate imprison- term of eligibility purposes years.” (emphasis ment of at least five Id. terms, on its own narrow removal.2 Even added). majority’s reasoning concluding in so pre This has at least three times Court plain reading inconsistent with a viously recognized that natural this is the text, statutory canons established reading Villegas text. See interpretation, history with the (9th Mukasey, Cir. provision. 2008) (“Crimes resulting imprisonment years for at five ‘particularly least are Statutory Language se, per serious’ while the Initially, as the Third Circuit held any felony, can determine that States, Atty. Alaka v. the United Gen. of regardless imposed par of the sentence (3d Cir.2006), plain words, 456 F.3d 88 serious.”); ticularly Afridi, 442 F.3d at reading common sense 1231(b)(3)(B)(ii) 1217 (stating pro indicates did authorize vides “discre General with designate nonag- the General tion to aggravated determine whether an gravated particularly felonies as serious felony resulting a conviction in sentence specifying crimes. See at 104. After id. less a years particularly then five is seri any aggravated fеlony that in a resulting crime”); Singh Ashcroft, ous v. 351 F.3d years more sentence five “shall be (9th Cir.2003) (“An 435, aggravated 439 particularly considered ... a 1231(b)(3)(B) crime,” § felony in at provides five-year that “the that results least majority question Attorney 2. The this issue as the whether the views one of first General's impression concluding, In so our circuit. previously is broader ‍​​​‌​‌​‌​‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‌‌​​​‌​‌‌‌​‌‌​​​‌‌‌‍than discretion we had majority the decision misreads our in Morales it held was would "not be in this determined having the [that] as "assumed ... case.” Id. non-aggravated felony could deem a " Quite arguably, question the is not one that 'particularly Maj. Op. at serious.' 867 5.n. properly by three-judge pan- can be decided fact, recognized that an inter- Morales such el, given construing earlier the cases pretation previous in accord with our 1231(b)(3)(B) encompassing as not the cases; instead, we it "broadens discretion broad the BIA now See In discretion claims. previously have determined that Gravel, Complaint re Ross Island Sand & 1231(b)(3)(B)(ii) gives Gener- 1015, (9th Cir.2000) ("[A]bsent 226 F.3d 1018 (citing 478 F.3d al.” at 979-80 v. Gon- Afridi banc, authority zales, 1212, rehearing we are (9th Cir.2006); en without 442 F.3d 1217 Gonzales, 931, precedent]”). [circuit overrule I nonethe- Unuakhaulu v. 416 F.3d 935 (9th Cir.2005); Ashcroft, less in meet on its Singh this dissent v. 351 F.3d 435, Matsuk, (9th Cir.2003); ground, resting own rather than deci- 247 F.3d at on stare 1002). went on to make clear that sis. Morales anything negate is considered a seri- the contrary implica- sentence Moreover, crime. under Section “previous ous tion of the sentence”? And once (b)(3)(B)(ii) Attorney Congress did clarify choose to that some any felony, aggravated determine that discretion remained Gen- that in a sentence of less even one results eral, why it would limit that clarification to years, qualifies than five as extending “notwithstanding serious.”). repeatedly That this court has sentence,” length of a if it meant to regarded understanding of the provi- allow unlimited simply discretion? We facially one confirms apparent sion as don’t throwing read statutes as around ordinary meaning it that a loose, meaningless language for no discer- takes from it. I submit that the reader Novak, nible reason. See United States v. saying anything reason these cases did not (9th Cir.2007) (stating nothing more on the matter is that there is that courts should “avoid whenever possi- say, more to once one reads the statute. statutory interpretations ble that result in however, majority, regards our ear Yet, superfluous language”). that is what having adequately lier cases as not ad majority, relying N-A-M-, on Ali and possibility non-aggravat dressed the proposes. ed felonies are majority’s interpretation crimes,” goes adopt on to reason 1231(b)(3)(B) also conflicts with another ing of the Seventh decision in Ali Circuit’s rule, interpretive basic “expressio unius (7th Achim, Cir.2006), 468 F.3d 462 cert. alterius,” — est exclusio specifies which U.S. -,

granted, 128 S.Ct. — the inclusion of one item ordinarily ex- dismissed, L.Ed.2d cert. U.S. been, cludes similar items could have -, 128 S.Ct. 169 L.Ed.2d 624 not, but were mentioned. See (2007). Barnhart v. interpretation, adopted AWa later Co., 149, 168, Peabody Coal 537 U.S. N-A-M-, BIA in In re I. & N. (2003). (BIA S.Ct. 154 L.Ed.2d 653 Section 2007), Dec. 336 relies on what the 1231(b)(3)(B) specifically permits the At- say, statute doesn’t rather than it on what “ torney does, designate General to asserting that because 1231 does resulting felonies general only aggravat prison not state a rule that terms of less years than ‘particularly ed felonies can be considered five crimes,” § serious’ “creates the items expressed crime[s].” “[W]hen presumption Attorney no that the General are of an members associated ... group case-by- not exercise on a discretion that items not inference[is] mentioned case nonaggra basis to decide that other were excluded deliberate choice.” Id. vated-felony ‘particularly crimes are also (internal omitted). quotation marks ” serious.’ 468 F.3d at 470. Ali—and the Whether we define the “associated group” 1231(b)(3)(B) § majority’s reading “crimes,” “aggravated here as “felonies” or — runs counter to basic of statuto- principles felonies,” the sole members of group ry construction. 1231(b)(3)(B) named in are convictions aggravated for carrying felonies: those

First, interpretation the Ali/N-A-M- years, sentences of more than five and begins renders the that pre- sentence “the carrying those sentences of than less five entirely superfluous. vious sentence” If (unstated) years. The fact that non-aggravated Congress’s understanding was felo- nies were not mentioned at all designate necessarily that the General could crime, any suggests Congress offense as a serious did not intend to why Congress say then would need to include them as serious 882 withholding of v. 526 Aguirre-Aguirre, tion.” INS U.S. purposes

crime[s]” L.Ed.2d 119 S.Ct. 143 590 removal. (U.S.1999) (quoting Deportation Proceed- canon does not suggests Ali “ Doherty, ings Op. Legal 13 Off. Coun- § 1231 does in this case because apply (1989)). Still, offenses sel only aggravat- rule that general not state nonpoliti- BIA has considered “serious ‘particularly can be ed felonies considered ” crimes,” typically cal fall well within the re- F.3d at 470. But this serious.’ 468 aggravated felony. current definition of joinder turns the canon of construction 420-21, Compare, e.g., id. at 119 S.Ct. 1439 to what a backwards. The canon looks (battery, public pri- and destruction of and unius”), (“expressio to de- statute includes Ashcroft, property); Kenyeres vate v. (“exclusio it does not alteri- termine what 1301, 1306, S.Ct. U.S. ”), vice versa. us not (2003) (money-laundering L.Ed.2d 301 Moreover, critically, majority’s crime); organized fails to interpretation give effect 1101(a)(43)(D) “aggravated (defining fel- in statutory language distinctions between ony” including money as laundering); 1158(b)(2)(B). 1101(a)(43)(F) (defining “aggravated fel- states, 1158(b)(2)(B)(i), any latter ony” including as crimes of violence aggravated felony,” is “[c]onviction against persons physical property). crime, adds, particularly serious then but Yet, ... ‘particularly “a serious crime’ is 1158(b)(2)(B)(ii), §in that “[t]he than nonpolitical more serious a ‘serious may designate by regulation of ” Frentescu, crime,’ 18 I. & N. Dec. at 247 will particu fenses that be considered” a added). So, (emphasis unless the statute crime, larly any mention of serious without inconsistent, hopelessly internally of- length imposed.” “the sentence fenses less than felo- nonetheless reads nies cannot be accorded the under the INS, crime[s]”. Padash v. F.3d quite two different (9th Cir.2004) (“We 1161, 1170-71 must provisions identically crime” broad. every interpret make effort “[Wjhere Congress particular includes lan provision at issue in a manner that renders guage one section a statute but omits provisions statute the same incon- Act, it in аnother section of it is the same ” (internal .... quotation sistent marks in generally presumed acts omitted)). and brackets tentionally purposely disparate in the Reno, or exclusion.” Tang inclusion The short of the matter is that the ma- (9th Cir.1996). 1194, 1197 F.3d 1231(b)(3)(B)(ii), jority’s reading §of like N-A-M-, reading BIA’s clashes with worse, majority’s To make matters principle statutory interpretation one (b)(3)(B)(ii) §of also interpretation principles, another. those Applying after inconsistent with the rest subsec- nothing there is the with- ambiguous about earlier, I explained tion. As the subsec- holding exception for provides tion also that an “alien [who] application crimes.” And because the nonpolitical committed serious crime out- myriad of “the traditional tools of statuto- the the alien side United States before ry interpretation” §to shows ineligible arrived in the United is States” Congress” that “the intent of non- withholding removal. —that 1231(b)(3)(B)(iii) added). “par- felonies as qualify cannot (emphasis ticularly purposes constitutes a serious crimes” for nonpolitical “[W]hat ‘serious susceptible rigid crime’ is not defini- of removal—is clear from the

883 West, statute, appropriate the Sloan v. 140 F.3d language face of “where the of the (9th 1255, Cir.1998), not, we need 1261 clear.”); enactment at issue is see also assertion, contrary’s majority’s the ex- Enters., Inc., United States v. Ron Pair posi- deference to the BIA’s tend Chevron 235, 240-41, 1026, 489 U.S. 109 S.Ct. 103 in N-A-M- on this issue. Chev- tion See (“[A]s long L.Ed.2d 290 as the statutory U.S.A, NRDC, 837, ron Inc. U.S. consistent, scheme is coherent and there 9, 2778, n. 81 L.Ed.2d 694 S.Ct. generally is no need for a court to inquire Reno, (1984); 86, Bell v. see also statute.”). beyond plain language the of the Cir.2000) (“An (2d agency’s interpreta- majority The and N-A-M- nonetheless in- statutory provision of a is not reason- tion reading sist on the through statute ignores when it an established rule of able prism history, of its rather than on its by construction set forth Su- so, doing get face—and the message of Court.”). preme history dead wrong. in N-A-M- does not opinion The BIA’s majority accurately recounts, As the warrant Chevron deference for the addi- concept serious crimes” first tional reason that the Board itself did not appeared in the INA in in a provision opinion consider the to reflect its reason- denying withholding of removal alien interpretation ambiguous able of an stat- who, “having been convicted a final Rather, the Board concluded that ute. its judgment crime, of a by a position compelled “plain reading was danger constitutes a community of the Act.” See N-A-M- I. & N. at 96-212, the United States.” Pub.L. No. attempt- 338. Because the Board was not (1980). 94 Stat. 102 ing gap by Congress, to fill a left it was however, does not recognize, acting pursuant agency’s general origi- to an statutory ambiguities, to resolve nal “particularly serious crime” concept and its decision is therefore not entitled to adopted Refugee was from the Convention Lines, See Peter Pan deference. Bus Inc. and Protocol’s provision, non-refoulement Admin., v. Fed. Safety Motor Carrier 471 not created out of whole cloth Con- (D.C.Cir.2006) (“[Djefer- F.3d such, gress. intended, concept As was agency’s ence to an interpretation of a suggest, its quite words as a narrow appropriate agency statute is not whеn'the exception to the responsibility not to send wrongly interpretation believes they aliens back to countries where are (internal compelled by Congress.”) quota- likely persecuted to be on protected omitted). tions marks and citations grounds, “serious,” only crimes not but “particularly serious.” Legislative History 243(a) changes here relevant my understanding On all furthered Congress’s intent to assure exception compliance with Refugee Convention erimefs],” analysis stop should First, and Protocol. Immigration statute, words of the read common-sensi- (“1990 Act”), Act of 1990 soon after the context, cally, in in light of established appearance “aggravated felony” first principles statutory interpretation. concept in the INA in See Pub.L. Cardoza-Fonseca, 452-53, 480 U.S. 100-690, (1988), 102 Stat. 4181 (“Where (Scalia, J., concurring) S.Ct. 1207 a categorical created bar to with- clear, language we are [a] law[ ] holding of removal for aliens convicted of replace not free to it with an unenacted intent;” aggravated legislative designating nor is an felonies all such “exhaustive analyses]” legislative history of a statute’s per “particularly offenses se serious “par- 101-649, “aggravated felonies” as ignation No. Pub.L. crimes.” See ticularly withholding crimes” if time, the crimes At the 4978, 5053. Stat. compli- “necessary were was to ensure felonies” removal “aggravated designated as serious, them Nations Proto- designating ance with 1967 United so quite indeed way Refugees.” Relating was col to the Status of per “particularly as se 1253(h) (current efficiency. at uniformity and version assuring 7342, 1231(b) 100-690, (1996)); Choеum, 102 Stat. 129 F.3d at Pub.L. No. INA) (1988 (1st Cir.1997). of the version 4469-4470 “murder; as: felony” defined (“aggravated in step final the evolution of crime, any ... or trafficking any drug seri- “particularly of removal any in firearms or de- trafficking illicit enactment, exception was the ous crime” devices”); also Pub.L. No. 101- structive IIRIRA, gave us in which later (Immigra- 649, 501, 104 Stat. of the INA and the current text 1990) (money laundering and tion Act of “ag- yet again expanded significantly for which the term violence crimes of No. gravated felony” concept. See Pub.L. added years at least five imprisonment 3009-546, 104-208, C, 321, Div. 110 Stat. felon[ies]”). “aggravated list for sev- particular, 3009-627-3009-628. In An- Next, enacted the Congress in the mini- eral offenses reduced Penalty Effective Death titerrorism and a conviction to penalty necessary mum (AEDPA), “expanded the defini- Act which felony from five qualify aggravated felony” (11). to include a aggravated 321(a)(3), (10), one, tion of years see offenses, thus range of greater much broadening “aggravated This vast of the broadening im- felony” category of crimes had obvious exception’s reach. See Choeum crime” catego- of that plications for the usefulness (1st Cir.1997). INS, Be- ry as a stand-in for the seri- ag- expanded definition of cause AEDPA’s withholding exception. crime” It was ous crimes gravated felony “include[d] IIRIRA, Congress, in context than less serious might be considered categorical broad removed the 1990 Act’s in its intended to cover those the Protocol aggravated bar all felonies as well as clause,” con- Congress became exclusion provision, substituting override AEDPA’s application categorical cernеd (1) categorical for both the narrower bar that did not result in removals bar would aggravated felonies “for which the the Protocol. Id. As Senator conform to aggregate to an alien has sentenced been Kennedy explained, years,” imprisonment term of least 5 anyone (2) felon aggravated declare an

[T]o provision for “the involving impris- convicted of an offense that, ... notwith- determine] [to] year, of one ... means onment im- standing length of sentence fairly minor offenses would people with posed,[the] alien has been convicted of ineligible to seek of de- crime.” The current particularly serious many portation, instances [which] sensibly statutory text thus is most under- Refugee violate the Convention. attempt implement stood as still another exception crime” Mark-up on before the Senate S. 1664 Proto- that conforms with the a manner Judiciary, Cong., on the 104th Committee fur- col, accounting for IIRIRA’s (1996). this time 60-61 To address this 2d Sess. felony broadening concern, ther in AEDPA a Congress included limiting per se cate- category by both Attorney General provision allowing the aggravated felonies gory to a subset of categorical to override the 1990 Act’s des- and, construction, only serious crimes” can be read —and limiting we felonies. only aggravated always have read providing it—as the At- torney General the to determine history suggests a Con- Nothing felonies with sentences of in 1996 to allow the At- gressional intent year, crimes, than a less but not other are designate “particular- as torney General “particularly serious” for the purposes of crimes” offenses so minor ly serious eligibility removal. within did not them as Congress ‍​​​‌​‌​‌​‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‌‌​​​‌​‌‌‌​‌‌​​​‌‌‌‍Nothing in the legislative history indicates category “aggravated broad the now I otherwise. therefore cannot agree with immigra- felonies” used for other INA and majority’s purposes.3 way, law Put another conclusion tion sequence in the nothing any of enactments General has free rein to call crime ending current version “particularly serious” and so send an alien 1231(b)(3)(B) § indicates that in- country likely where he is to be tended to allow an alien to be removed to a persecuted.

country probably perse- where he will be race, religion, account na- cuted on of his 1158(b)(2)(B)(ii)— § C. 8 U.S.C. tionality, membership in a particular social Asylum he com- group, political opinion, because can I agree majority’s Nor with the designated mitted a crime too minor to be reading of “aggravated felony” quite asylum under the INA— different pro- minor, disqualify him example, concerning “particularly too vision require forms of relief or to from other crimes.” Adopting, again, once the rea- pending pro- that he be detained removal Ali, soning the Seventh Circuit in Instead, the current version of ceedings. that the concludes IJ was author- among that even recognizes the statute case-specific ized to decide on a basis that designated “aggravated crimes as felo- Delgado’s nonaggravated felony convic- nies,” many' perhaps most—now would qualified tions also — excep- not meet crimes, him rendering ineligible Convention, of the Protocol аnd tion and so 1158(b)(2)(B). § See 468 F.3d at leaves the General the task of § (stating does not out, basis, case-by-case sorting on which require to anticipate expanded “aggravated class of felo- adjudication by regulation his covering ev- are nies” serious.” crime.).4 ery single interpreta- And this is, sum, again, once statutory tion conflict with the text words, 1231(b)(3)(B), plain common interpreted reading in context and sense in light of established canons of statute. issue, Among things, “aggravated fel- 4. As to this neither the BIA’s decision case, underlying opinion in this nor its re- designation requires mandatory deten- on[]“ published opinions. tion, viewed in Ali are 1226(c)(1)(B), No permits expe- 8 U.S.C. opinion published BIA discusses whether proceedings, dited removal 8 U.S.C. 1158(b)(2)(B) permits the determination of may disqualify the alien from benefits "particularly whether an offense ais perma- such as cancellation of removal for basis, case-by-case crime” on a rather than residents, 1229b(a), tempo- nent 8 U.S.C. "by regulation." We therefore do not owe status, 1254a(c)(2), rary protected 8 U.S.C. point. the BIA Chevron deference on this pre- post-hearing voluntary depar- Garcia-Quintero Gonzales, ture, 1229c(a)(l) (b)(1). §§ & (holding unpublished BIA deci- 1012-14 deference). sions are not entitled to Chevron 7545(a)’s § that directive (citing the au- U.S.C. explicitly stated

Congress may by regulation Administrator U.S.C. granted “[t]he thority 1158(b)(2)(B)(ii) registration ... of- “designate designate any fuel ... [for to 7545(b)]” proof considered to be pursuant will be to as fenses that anis crime]” authori- rulemak [particularly “Congress impose knew how to “by regulation.” exercised ty that Air Act requirements under the Clear ing “by rеgu- so”) that the majority maintains (emphasis it to do add when wanted only categori- to language pertains ed). lation” Moreover, Congress spec could have BIA can also that the exceptions, cal Attorney au ified that the General was adjudication. case-by-case proceed “particularly thorized to make adjudication, via crime” determinations via reading of this problem first with it regulation, or via both methods. As not the statute that it is what the statute is only “by regulation,” specify chose to gen- is “by regulation” sentence says. The 1158(b)(2)(B), necessary non- the eral; categorical distinc- it not limited to is —and is that it chose to superfluous implication provide the statute does tions. And — Barnhart, options. exclude the other See determining that way of any 168, 123 537 U.S. S.Ct. asy- “particularly are offenses lum purposes. strengthened by is the implication This “by regula consideration no similar

Moreover, majority’s implication appears tion” sentence why Con explain does not from silence governing “particularly of removal section “by regulation” sen gress included the crimes,” a difference that should Indeed, majority’s under the inter tence. significance. City be accorded some more— pretation, the sentence is—once Fund, 328, Chicago v. Envtl. 511 U.S. entirely express “Absent con surplusage. Def. (1994) 1588, 128 contrary, agen S.Ct. L.Ed.2d 302 gressional direction to (“It generally ... between rule presumed are free to choose cies EPA, adjudication.” intentionally purposely Davis v. when it making and acts Cir.2003) (9th (parenthe particular language in one section 348 F.3d includes omitted). another”) (inter pro The INA ses and citations it in statute but omits omitted) Attorney power General broad vides the quotation (citing nal marks Keene ... he regulations States, such as “establish Corp. v. 508 U.S. United (1993)). au necessary carrying deems out his 2035, 124 L.Ed.2d 118 113 S.Ct. thority chap of this provisions under the general, broad authori Given 1103(a) (current ter.” Congress gave zation Gener Chen, 2 1103(g)(2); States v. United rea regulations, al to issue we could not Cir.1993)). (9th there F.3d So sonably surmise “by regulation” was no need to include precluded issuing regulations from sentence in to authorize implement of removal designating BIA regulations to issue provisions serious crime” categories of offenses as seri categories partic as specifying offenses That existed al crimefs].” ous only implica ularly serious. The sensible ready. from difference between the two tion provisions, serious crime” promul- language concerning

Similar consequently, is that the particular issues gation regulations as can, not, proceed by regulation but need require regulations understood to has been adjudication case-by-case rather than decisionmaking agency as the mode of Davis, proceed must respect withholding, at 785 but to that issue. See regard exception through [pe with to the General to “sift each state’s by regulation asylum. eligibility to for “identify code” to through regulation nal] every single ‘particularly serious’ [crime].” understanding of the textual differ- This Ali, in majority 468 F.3d at cited the in perfect light makes sense of other ences at opinion majority 4379. As the recog asylum and withhold- differences between nizes, Attorney the General could issue Attorney of removal. ing regulations designating specific categories case-by- discretion to decide on a retains grant asylum non-aggravated to to particularly case basis whether felonies as Cardozar-Fonseca, eligible applicants. crimes, just serious as Congress already at n. 107 S.Ct. 1207. As an U.S. has done statute aggravated for felo individualized determination occurs down- See, 1101(a)(43)(des e.g., § nies. asylum process, the-line in the there was certain ignating categories of crimes as case-by- for provide no reason to such felonies). aggravated Alternatively, just eligibility at the In process stage. case already adjudica as the BIA does through contrast, withholding of removal is manda- felonies, tion in the case of aggravated the any tory eligible applicants, so individ- Attorney specify, through General could occur at the ualized determination must rule-making, those factors which would There is eligibility stage. also less need non-aggravated felony render a conviction case-by-case determination regard pur serious crime for this asylum, asylum a denial of to an to because Gonzales, pose. Miguel-Miguel See eligible directly otherwise alien does not (9th Cir.2007) F.3d (holding that noncompliance raise the risk of with the Attorney the authority has the L-S-, 22 I. & N. Refugee Convention. Cf. strong “create a presumption drug Recognizing differing these Dec. trafficking offenses are in concerns at issue the two contexts re- crimes”). interpretation in an procedural sults sum, require chose to des- 1158(b)(2)(B) § more requirements ignation ^ore-aggravated felonies as than Congress’ purposes faithful to “particularly asylum serious crimes” for approach adopted by one-size-fits-all by formal purposes promulgation regu- L-S-, majority. 22 I. & N. Dec. at 652 Cf. lations, while allowing case-by-case desig- 1158(b)(2)(B), § (interpreting nation of serious crimes” for way same “annul[s] withholding purposes, only but from by Congress deliberate distinction made among aggravated IIRIRA”). Any felonies. reading of the two again statutes once Further, my reading, Congress on has sup- makes sameness out of difference and already designated withholding pur- poses Congress indulged in redundan- poses the universe of offenses that can be cy and indirection. designated felonies, as defined in crimes”— II. Jurisdiction 1101(a)(43). INA. See 8 U.S.C. As accorded the Gen- majority accepts that we de- eral with is not so cir- already discussed, cide the I have issues cumscribed, Congress pre- could well have presumably they purely because are legal subject formal process, public ferred a 1252(a)(2)(D). issues. See 8 But U.S.C. application. comment and to uniform juris- concludes that we lack Finally, “by diction to review the merits of the BIA’s making designations such regulation” require Delgado’s would not ultimate determination that DUI Gener- grant of ‘discretion’ were

convictions 1231(b)(3)(B). Secretary This con- al or the of Homeland Securi- crimes” under 1231(b)(3)(B). ty”). on the view It did not do so premised clusion id.; Nethagani, falls 532 F.3d at determination see also 1252(a)(2)(B)(ii)’s judicial preclusion 154-55. authority for ... “decision[s] review Moreover, Matsuk is in tension with our under this subseсtion specified which is that, case law. Matsuk stated own Attorney Gener- be in the discretion deny withholding The decision to to al.” upon Attorney Matsuk was based INS, held that In Matsuk v. we discretion, pursuant to General’s Section by granted 8 U.S.C. 1231(b)(3)(B)(ii), to whether determine 1231(b)(3)(B) deny re § felony conviction result- “if the General moval of an alien ing years in a of less than 5 sentence ... alien has been con [the] decides serious crime. Thus Sec- particularly crime” is particularly of a victed 1252(a)(2)(B)(ii) court tion divests this meaning discretionary within the jurisdiction to review this issue. 1252(a)(2)(B)(ii), § and therefore that the (footnote quotation at 1002 F.3d denial of on this basis is BIA’s omitted). not, however, marks Matsuk did by reviewable this Court. See not Instead, why simply it explain this is so. 1002; Spencer Enterprises, at Inc. v. F.3d cited the BIA’s decision in Matter S-S- (9th States, 683, 690 United 345 F.3d Cir. (BIA 1999), 22 I. & N. Dec. 458 which 2003). agree I with the So 1231(b)(3)(B) § At- states that “affords the controlling in Matsuk is as to our decision torney discretion to exercise her General reviewability ultimate deter of the IJ’s judgment as to whether conviction is mination that his DUI convictions consti for a serious crime when an tuted a serious crime” under alien has been sentenced to less than 5 1231(b)(3)(B). § years very 22 I. for the same offense.” & specific Matsuk’s conclusion on this (cited Matsuk, N. Dec. at 464 in 247 F.3d has, however, recently rejected point been 13). at 1002 n. circuits, opinions persua two in I find recognized Spencer in En- As this Court Atty. Alaka v. sive. See General of 1252(a)(2)(B)(ii) however, § terprises, does (3rd States, Cir.2006); United 456 F.3d 88 deprive generally jurisdiction us (2d Nethagani Mukasey, 532 F.3d 150 “discretionary review decisions” of the At- Cir.2008). Both the and Third Second Cir torney under the INA. 345 F.3d аt fact cuits concluded 1252(a)(2)(B)(ii) Instead, only § re- 1231(b)(3)(B) gives “ ” reviewing from those decisions stricts us authority to ‘decide’ or ‘determine’ authonty specified “the for which is under an offense is a serious crime is discretionary.” (empha- the INA to be Id. “not, alone, standing ‘specify’ sufficient original). in the test this sis Under Court Alaka, at discretion.” 456 F.3d 96-97. As adopted Spencer Enterprises, in it would Alalca, the Third in “Con Circuit observed “particu- that the determination of appear gress ‘specify’ knows how to discretion and larly under crime[s]” repeatedly provisions has done so 1231(b)(3)(B) is not a decision “the au- at (citing of the INA.” Id. 97 and n. 17 thority under the specified for which is “thirty-two very ... provisions sub- discretionary.” INA chapter of the INA referenced 1252(a)(2)(B)(ii) 1252(a)(2)(B)(ii); at 689. explicit that make 345 F.3d. however, (parentheses was de- 478 F.3d at Enterprises, and citation Spencer omitted). “the and characterized cided after Matsuk in Matsuk —whether to decision at issue review, petition Delgado In his ques- ‘partic- classify past an alien’s offense as whether, law, tions as a matter of DUI

ularly crime’ can convictions constitute a one that” did fall un- —as 1231(b)(3)(B), serious crime” under it “a category, because der this second applied whether this statute should be ret- entirely lacking that is statuto- decision roactively to his convictions. See Rama- Mat- ry guidelines.”5 Id. 690. Given ‍​​​‌​‌​‌​‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‌‌​​​‌​‌‌‌​‌‌​​​‌‌‌‍Gonzales, (9th dan v. Morales, suk, I Enterprises, and Spencer Cir.2007) (issues construction majority’s accept have no choice but to law). per questions are se It well jurisdiction lack plenary conclusion that we Delgado be that cannot on рrevail either of “particu- to review the General’s 1252(a)(2)(B)(ii), these issues. Section larly designations crime” with re- however, deprive jurisdic- does not us of cases, But for these gard withholding. tion to make this determination. hold, I as have the Second and would Circuits, statutory provision that a Third gives Conclusion simply authority something to “determine” is not agree I cannot majority with the “specified one that is under the INA be the BIA “particular- has to make 1252(a)(2)(B)(ii). discretionary.” § ly asy- serious crime” determinations for however, note, that at some of I least lum purposes case-specific on a I basis. Delgado seeks to raise on the the issues also would conclude that the IJ and BIA regarding designation

merits the IJ’s erred as a matter of law in determining crime his offenses as a Delgado’s convictions rendered him jurisdic- are not ones that fall within the ineligible of removal under tion-stripping provisions 1231(b)(3)(B), § so I would remand for 1252(a)(2)(B)(ii). Congress, in the consideration of the merits of this claim as Act, ID clear REAL has made however, agree, well. I Delgado 1252(a) (ii) (2)(B) “pre- does eligible asylum, juris- and that we lack ... questions review of of law ][our] clude! diction, applica- for the over the part, most upon petition raised review.” tion of the removal stan- 1252(a)(2)(D). Morales, this Court dard. I therefore concur considered, Act, ID light of the REAL opinion to that extent. broadly holding how to construe Matsuk’s regarding the BIA’s unreviewable discre- specific

tion to determine that a offense is Morales,

a particularly serious crime. See Matsuk, citing

478 F.3d at

at 1002. We stated that “this court has

jurisdiction pursuant 1252(a)(2)(D) legal ques- ... to consider determination of

tions related

whether a crime is serious.” 1252(a)(2)(B)(ii). holdings, provision Spencer Enterprises’ 5. actual howev- to a different er, INA, 1153(b)(5). applicability concerned See 345 F.3d

Case Details

Case Name: Delgado v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 17, 2009

Citation: 563 F.3d 863

Docket Number: 03-74442

Court Abbreviation: 9th Cir.