Lead Opinion
ORDER
Delgado’s petition for panel rehearing is GRANTED. This court’s opinion of October 8, 2008, reported at
OPINION
Hernán Ismael Delgado petitions for review of a decision of the Board of Immigration Appeals (“BIA”) ordering him removed to his native El Salvador. The BIA denied Delgado’s applications for asylum, withholding of removal, and withholding under the Convention Against Torture (“CAT withholding”), finding that Delgado’s three prior offenses of driving under the influence (“DUI”), which were not aggravated felonies, constituted “particularly serious crimes” that made him ineligible for those forms of relief.
We grant in part and deny in part Delgado’s petition for review. We defer to the BIA’s view that, for purposes of withholding of removal, the applicable statute permits the Attorney General to decide by adjudication that an alien’s individual crime is “particularly serious” even though that crime is not classified as an aggravated felony. We also conclude that, for purposes of asylum, the Attorney General may determine by adjudication that a crime is “particularly serious” without first so classifying it by regulation.
We further hold that we are without jurisdiction to review the merits of that “particularly serious crime” determination for purposes of withholding of removal, but conclude that we have jurisdiction to review the determination for purposes of asylum. We conclude that Delgado’s DUI convictions do not qualify as “particularly serious” crimes, and we therefore remand Delgado’s asylum application to the BIA for further proceedings.
Finally, we hold that substantial evidence supports the decision of the BIA that Delgado failed to meet his burden of
Background
Delgado, a native and citizen of El Salvador, entered the United States on a non-immigrant visitor visa over twenty years ago. In July 2001, the Immigration and Naturalization Service (“INS”)
Discussion
The BIA did not specify whether it reviewed de novo the IJ’s decision, but stated that it agreed with the IJ on the basis of “the record before [it].” The BIA’s simple statement of a conclusion, without analysis, suggests that it relied significantly on the IJ’s decision. In such situations, we review the decision of the BIA and look to the IJ’s oral decision “as a guide to what lay behind the BIA’s conclusion.” See Avetova-Elisseva v. INS,
I. The “particularly serious crime” bar
The ultimate issue raised by Delgado is whether the BIA erred in deciding that his DUI convictions constituted “particularly serious crimes” that made him ineligible for withholding of removal and asylum. A major threshold question is whether the applicable statutes permit the agency to determine Delgado’s offenses to be “particularly serious” by individual adjudication not limited by certain statutory or regulatory requirements. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review this question of law. Afridi v. Gonzales,
Although the issue of scope of the Attorney General’s authority (and that of the BIA as his delegate) to determine that an alien’s crime is “particularly serious” arises with regard to both withholding of removal and asylum, the statutory context differs for each form of relief and raises distinctive legal subissues. We therefore treat the two forms of relief separately.
A. Withholding of Removal
An alien is ineligible for withholding of removal if, among other things, “the Attorney General decides that ... the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States.”
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 partiсularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.
Id. The question that naturally arises from this plain text is whether the last sentence is meant to limit the Attorney General to the universe of aggravated felonies described in the preceding sentence or, conversely, whether the last sentence simply preserves the Attorney General’s authority to determine a crime to be particularly serious regardless of the penalty or its designation or non-designation as an aggravated felony.
At the time the present appeal was argued, the BIA had not addressed this issue in a precedential opinion, in this case or any other. An unpublished decision by a single BIA member is not entitled by itself to the deference prescribed by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
Two other circuits, which addressed the issue before the BIA weighed in with a precedential opinion, reached opposite results. The Third Circuit, applying a textual and structural approach, concluded that an offense “must be an aggravated felony to be ‘particularly serious.’ ” Alaka v. Attorney General of the United States,
The legislative history of the particularly serious crime bar, referred to by the BIA in N-A-M-, 24 I. & N. Dec. at 839 340, supports this interpretation. In 1980, § 243(h) of the Immigration and Nationality Act was аmended to deny withholding to an individual who “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” Pub L. No. 96-212, § 202, 94 Stat. 102 (1980). Under this provision, the BIA determined on a case-by-case basis which crimes were particularly serious, applying the balancing test of Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982).
The statutory provision barring those convicted of “particularly serious” crimes from eligibility for withholding of removal then was amended three times. The Immigration Act of 1990 (the “1990 Act”) added the following language to § 243(h): “an alien who has been convicted of an aggravated felony shall be considered to have committed a particularly serious crime.” Pub.L. No. 101-649, 104 Stat. 4978, 5053. Nothing in the text or history of the 1990 Act suggests that Congress intended, by making aggravated felonies per se “particularly serious crimes,” to divest the Attorney General of his authority to determine, on a case-by-case basis, that other crimes were “particularly serious,” depending on the circumstances of their commission, among other things. And, notwithstanding the 1990 Act, the agency understood that it could adjudicate a crime to be “particularly serious” on a ease-by-case basis. See Ahmetovic v. INS,
We recognize that one of the aims of Congress in enacting the post-1990 statutory amendments was probably to avoid sweeping minor crimes into the categorical aggravated felony bar. But nothing in the legislative history indicates that Congress intended, by creating a categorical bar and by later relaxing that categorical bar, to eliminate the Attorney General’s pre-existing discretion to determine that, under the circumstances presented by an individual case, a crime was “particularly serious,” whether or not the crime was an aggravated felony. We therefore find the BIA’s interpretation of the statute reasonable, and conclude that the BIA was entitled to determine, by adjudication, that Delgado’s DUI convictions were particularly sеrious crimes that barred him from eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3)(B) and CAT withholding under 8 C.F.R. § 1208.16(d)(2).
B. Asylum
We now turn to whether the BIA was authorized to determine that Delgado’s crimes were “particularly serious” for the purposes of his asylum application.
There seems little question that this last provision permits the Attorney General to make particular crimes categorically “particularly serious” even though they are not aggravated felonies. The provision would
Our discussion of the withholding statute is instructive. Just as with withholding, the agency initially made the determination whether an alien’s crime was particularly serious strictly by adjudication, applying the Frentescu factors. See Frentescu, 18 I. & N. Dec. at 247. Congress intervened in the 1990 Act only to ensure that certain crimes (aggravated felonies) would be categorically determined to be “particularly serious,” regardless of the circumstances of their commission.
We therefore conclude that the BIA did not err in proceeding to determine by adjudication, in the absence of regulation, whether Delgado had committed a “particularly serious” crime that rendered him ineligible for asylum.
C. The merits of the BIA’s decision
1. Withholding of Removal
The next question for decision is whether we may review the merits of the BIA’s determination that Delgado’s DUI convictions were “particularly serious crimes.” With rеgard to withholding of removal, we conclude that we may not.
We are statutorily precluded from reviewing decisions of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General ..., other than the granting of relief under section 1158(a) of this title [relating to asylum].” 8 U.S.C. § 1252(a)(2)(B)(ii). In Matsuk v. INS,
[T]he decision at issue in Matsuk— whether to classify an alien’s past offense as a ‘particularly serious crime’ under § 1231(b)(3)(B) — is a decision that is entirely lacking in statutory guidelines. Under the language of the statute, this decision is left entirely to the discretion of the Attorney General, with no governing statutory standards.
Spencer Enters., Inc. v. United States,
After the decisions in Matsuk and Spencer, Congress enacted the REAL ID Act of 2005, which provides that nothing in the provision limiting review of the Attorney General’s discretionary decisions “shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Our decisions subsequent to the REAL ID Act make clear, however, that the ultimate determination by the Attorney General that a crime is “particularly serious” for purposes of withholding of removal is still an unreviewable discretiоnary decision. We so stated in Unuakhaulu v. Gonzales,
Most recently, we decided in Ramadan v. Gonzales,
2. Asylum
Our circuit precedent is quite different, however, with regard to eligibility for asylum. In Morales v. Gonzales,
As we have already explained, our precedent establishes the case-by-case determination of a “particularly serious crime” to be an exercise of discretion. We accordingly review that decision for an abuse of discretion. See Surita v. INS,
As the dissenting opinion points out, the origin of the “particularly serious crime” category was the Convention Relating to the Status of Refugees, July 28, 1951, 10 U.S.T. 6259, 189 U.N.T.S. 150. The Convention prohibits returning an alien to a country where his “life or freedom would be threatened” on account of specified grounds, with an exception for aliens convicted of “a particularly serious crime.” Convention, art. 33. This requirement and exception were written into the Immigration and Nationality Act by the Refugee Act of 1980. See INS v. Cardoza-Fonseca,
We accord Chevron deference to the BIA’s discussion in the precedential decision of Frentescu, but that discussion does not in itself determine whether DUI is a particularly serious crime. The decision of a single IJ, not relying on a precedential ruling, that DUI is a particularly serious crime does not command Chevron deference. See Marmolejo-Campos v. Holder,
When the Frentescu factors are applied in the context of the international origins of the “particularly serious crime” exception, we conclude that it was an abuse of discretion to hold that Delgado’s convictions are pаrticularly serious crimes. Surely they do not exceed the “capital or grave” standard of “serious” nonpolitical crimes, and Frentescu indicates that particularly serious crimes should exceed that standard. Delgado’s sentences for the three offenses were incarceration for 12 months, 16 months, and 24 months — substantial but by no means long sentences under the standards of recent decades for serious crimes. It is true that driving under the influence can be dangerous, and at least one of Delgado’s episodes was. Yet there was no intent to injure. The crime itself is careless or even reckless, but requires no intent and is “most nearly comparable to[ ] crimes that impose strict liability.” Begay v. United States, — U.S. -, -,
We conclude, therefore, that the IJ abused his discretion in ruling that Delgado’s DUI convictions were particularly serious crimes that rendеred him ineligible for asylum. Because of that ruling of ineligibility, neither the IJ nor the BIA addressed whether Delgado met the substantive requirements for asylum and should be granted relief. We therefore grant Delgado’s petition for review with regard to his asylum claim, and remand that mat
II. Relief under the Convention Against Torture
We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA’s denial of Delgado’s claim for CAT deferral, see Morales,
As the IJ noted, Delgado presented evidence that his mother, and probably his father, were victims of the rampant human rights violations that took place in El Salvador in the late 1970s and early 1980s. However, Delgado has not provided sufficient evidence that he currently risks being harmed if he returns to his native country. Country reports indicate that conditions in El Salvador have improved significantly since Delgado left the country, and that there is no longer evidence of politically motivated violence, killings, or disappearances in El Salvador. We therefore conclude that the BIA’s decision that Delgado is not entitled to CAT deferral is supported by substantial evidence.
Conclusion
The petition for review is granted with regard to Delgado’s asylum claim, and that matter is remanded to the BIA for further appropriate proceedings. With regard to all his other claims, Delgado’s petition is denied.
PETITION GRANTED in part, DENIED in part, and REMANDED.
Notes
. All three convictions were for felony DUI. One involved an injury accident, and two resulted in prison terms of less than five years.
. Effective March 1, 2003, the functions of the INS were transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). This transfer has no effect on the review of Delgado's case.
. Delgado also sought cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act ("NACARA”), and suspension of deportation, but he has not sought review of the denial of those forms of relief.
. We have upheld the BIA’s interpretation of this statute to require "only the factual finding of conviction of a particularly serious crime to support the determination of danger to the community,” without the necessity of a separate finding of such danger. Ramirez-Ramos v. INS,
. In Morales v. Gonzales, we assumed without analysis that the Attorney General could deem a non-aggravated felony "particularly serious.”
. The BIA looked "to 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.” Frentescu, 18 I. & N. Dec. at 247.
. The long history of case-by-case determination of "pаrticularly serious” crimes bears more weight, in our view, than the canons of construction relied upon by the dissent. Canons of statutory construction "are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent.” Scheidler v, Nat'l Org. for Women,
. Although the legislative history is sparse, there seems to be no doubt that one purpose of this enactment was to prevent violations of the Refugee Convention's non-refoulement provision that might occur because of a rigid application of the aggravated felony bar. See Matter of Q-T-M-T-, 21 I. & N. Dec. 639, 648 n. 4 (BIA 1996). Such treaty violations were becoming more likely because, at the time, the list of aggravated felonies was expanding, and a categorical bar could have included "fairly minor offenses” in its sweep. Id. (internal quotations and citation omitted); see also Choeum v. INS,
. The BIA's precedential decision in N-A-M-did not address § 1158(b)(2)(B)(I) because the asylum application in that case was untimely. We therefore have no precedential decision of the BIA to be accorded Chevron deference on the precise asylum question presented here.
. As we described in the previous section, Congress relaxed its categorical bar somewhat with regard to withholding of removal. It did not do so with regard to asylum.
. Other circuits have split on this issue. The Seventh Circuit holds that it is without jurisdiction to review the merits of the determination of an alien's crime to have been "particularly serious,” for purposes of both asylum and withholding of removal, see Ali,
. Judge Berzon's concurring and dissenting opinion here offers trenchant and, to us, persuasive criticisms of this ruling of Matsuk. As her opinion recognizes, however, we are bound as a three-judge panel to follow Matsuk.
. Delgado contends that the IJ committed legal error by applying the bar of “particularly serious crime” retroactively to his 1992 DUI conviction. Delgado did not present this argument to the BIA, however, and we therefore may not consider it. Socop-Gonzalez v. INS,
. Morales also recognized that we had no jurisdiction to review the Attorney General's discretionary decision finding DUI convictions to be particularly serious crimes for purposes of withholding of removal, as indicated by our decision in Matsuk and its progeny, discussed earlier in this opinion. Morales remanded the denial of withholding, however, because it held that the IJ had committed legal error in the parts of the record that it considered in determining the "particularly serious crime” issue. In so ruling, Morales deferred to BIA determinations of the records that may be considered. The BIA subsequently modified its stance in a precedential decision, Matter of N-A-M-, 24 I. & N. Dec. at 342. We have recently deferred to that ruling, permitting the BIA to consider all reliable information in making a particularly serious crime determination. Anaya-Ortiz v. Mukasey,
. In Marmolejo-Campos,
Concurrence Opinion
concurring in part and dissenting in part:
The majority opinion is seriously offtrack with respect to its first two holdings, but its final conclusion regarding asylum is correct: We may review the BIA’s asylum “particularly serious crime” holding on the merits, and, doing so, we can only conclude that the IJ abused his discretion in finding that Delgado was ineligible for asylum. As to our jurisdiction over the merits of the withholding of removal issue, I agree that we are bound by Ninth Circuit precedent, but believe that precedent to be quite wrong, as well as inconsistent with the law as it has been developing in other circuits.
To summarize my views:
. First and most important, neither of the majority’s two holdings concerning the “particularly serious crime” provisions of 8 U.S.C. §§ 1158(b)(2)(B) and 1231(b)(3)(B) can be reconciled with the most basic principles of statutory interpretation. The majority concludes that the “particularly serious crime” exclusions for asylum and withholding of removal mean nearly the same thing, substantively and proeedurally, even though the language, structure, purpose, and context of the two sections are all quite different. That simply cannot be. For the reasons I discuss below, the only viable construction of the “particularly serious crime” provision of § 1231(b)(3)(B), the withholding version, is that only aggravated felonies can be “particularly serious crime[s].” And the only viable interpretation of the asylum “particularly serious crime” provision, § 1158(b)(2)(B), is that the Attorney General can make non-aggravated felonies “particularly serious crimes” only through regulation, not on a case-by-case basis.
Second, the majority properly relies on Matsuk v. INS,
Third, the majority is correct as to its reliance on and application of Morales. I therefore also concur in part C(2) of the majority’s opinion and do not address it further in this concurrence.
I. Particularly Serious Crime Exceptions
A. Overview
Congress’s goal when it created the “particularly serious” crime exception was, in part, to provide a basis for removal of certain aliens convicted of criminal offenses that conforms to our international commitments. This purpose resulted in key differences between the “particularly serious crime” provisions applicable to withholding and those applicable to asylum. The majority’s opinion considers neither the origin of the “particularly serious crimes” provisions nor the obvious differences between them, and so comes to the erroneous conclusion that the two provisions are both essentially identical and essentially limitless. As a result, the majority allows to stand the BIA’s procedures for determining whether Delgado’s DUI convictions were each “particularly serious crimes,” for purposes of both asylum and withholding relief, a conclusion that, as I shall show, clashes with Congress’s underlying basis for adopting the “particularly serious crime” exception.
1. The Refugee Convention and Protocol
The original source оf the term “particularly serious crime” is the 1951 Convention Relating to the Status of Refugees, 19 U.S.T 6259, 189 U.N.T.S. 150 (“Convention”). The Convention prohibits states from “return[ing] an alien to a country where his ‘life or freedom would be threatened’ on account of one of the enumerated reasons.” INS v. Cardoza-Fonseca,
Both the duty not to remove an alien to a country where such persecution is likely and the “particularly serious crime” exception were adopted by the United States through accession to the 1967 UN Protocol relating to the Status of Refugees (“Protocol”), 19 U.S.T. 6223, 606 U.N.T.S. 267, which includes the obligations previously enumerated in the Convention. Both the duty and the exception were incorporated, in turn, in the Immigration and Nationality Act (“INA”) by the Refugee Act of 1980. See Cardoza-Fonseca,
Consistent with this purpose, the Supreme Court has interpreted terms used in these 1980 refugee amendments to the INA in light of their meaning under the Convention and Protocol. See id. at 439 nn. 22 & 24,
Taking that approach, how serious is a “particularly serious crime”? The Convention and Protocol do not provide a definition, but they do offer a basis for comparison with other offenses. In Matter of Frentescu, the BIA pointed out that because the Convention also established an exception to withholding of removal for “serious nonpolitical crimes” an alien has committed outside the country where he has taken refuge, “it should be clear that a ‘particularly serious crime’ ... is more serious than a ‘serious nonpolitical crime.’ ” Id. at 247 (emphasis added); see also 8 U.S.C. § 1231(b)(3)(B)(iii); Convention art. 33(1)(F) (establishing that an “alien [who] committed a serious nonpolitical crime outside the United States before the alien arrived in the United States” is not eligible for withholding of removal) (emphasis added). In other words, an offense that is less serious than a “serious nonpolitical crime” cannot be a “particularly serious crime.” The Handbook, which “provides significant guidance in construing the Protocol,” Cardoza-Fonseca,
While such an interpretation of “particularly serious crime” may seem overly narrow, it is consistent with the basic premises of the Convention. Conviction for a “particularly serious crime” permits removal of an alien to a country where it is probable that he will be deprived of “life or freedom” on account of protected grounds. Convention art. 33(1), (2). The reason removal under these circumstances is justified is that the alien has committed a crime so serious that, even if he remained in his country of refuge, its state would be justified in imposing grave punishment upon him.
In this case, the BIA determined that Delgado was ineligible for asylum and withholding of removal because his three DUI convictions constituted a “particularly serious crime” under both §§ 1231(b)(3)(B) and 1158(b)(2)(B), relating to withholding of removal and asylum respectively. Among these offenses was a conviction for driving under the influence causing death or bodily injury, which resulted from an accident where Delgado and his passenger (and possibly, though the record is unclear, the occupants of the other vehicle) were seriously injured. While I in no way minimize the seriousness of Delgado’s offenses, I do not see how a DUI' — which, as the majority recognizes, is not an “aggravated felony” for purposes of our own immigration law, see Maj. Op. at 865-66 — can be a “particularly serious crime” in the sense
2. Asylum and Withholding of Removal
A conviction for a “particularly serious crime” makes an alien ineligible for asylum, as well as for withholding of removal. § 1158(b)(2)(B) (asylum); § 1231(b)(3)(B) (withholding). However, “Congress has drawn a critical distinction in its use of the term ‘particularly serious crime’ ” in § 1158(b)(2)(B) as compared with the use of the same term in § 1231(b)(3)(B), In re L-S-, 22 I. & N. Dec. 645, 652 (BIA 1999), and for good reason.
Regarding eligibility for withholding of removal, § 1231(b)(3)(B) states that,
[A]n 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 sentence imposed, an alien has been convicted of a particularly serious crime. In the case of eligibility for asylum, § 1158(b)(2)(B) establishes
that,
[A]n alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.
... The Attorney General may designate by regulation offenses that will be considered to be a [particularly serious] crime ...
The obvious differences in the statutory text of these two subsections suggest three distinctions in meaning.
First, the category of per se “particularly serious crime[s]” is broader in the asylum context than it is in the case of withholding of removal. Section 1158(b)(2)(B) makes all aggravated felonies per se “particularly serious crime[s]” for asylum purposes, while § 1231(b)(3)(B), pertaining to withholding of removal, only makes aggravated felonies “for which the alien has been sentenced to an aggregated term of at least five years imprisonment” a per se category of “particularly serious crimefs].”
Second, with regard to asylum, the statutory structure and language suggest no express limitation as to which crimes may be designated as “particularly serious.” Rather, all aggravated felonies are per se “particularly serious,” and other crimes may be so designated. In contrast, the withholding of removal provision confers on the Attorney General the authority to determine that an offense is a “particularly serious crime” notwithstanding the length of the sentence imposed, but does not confer any express authority to designate non-aggravated felonies as “particularly serious.”
Third, the two subsections define differently how offenses outside of these per se categories may be determined to constitute particularly serious crimes. The asylum provision states that “the Attorney General may designate by regulation offenses that will be considered particularly serious crimes.” (emphasis added). By contrast, the withholding provision gives the Attorney General the general authority to “determine” whether a crime is particularly serious, indicating that any otherwise permissible method of determination is allowed.
The majority concludes that these obvious distinctions are without much practical
Taking together the guidance provided by Congress’s intention to abide by the Protocol and Convention and the very different statutory language Congress used with regard to asylum and withholding of removal, I would begin my interpretation of the statute by recognizing — as the majority does not' — -that Congress wrote two different “particularly serious crime” provisions because it meant two different things. Critically, asylum and withholding of removal differ under the INA in ways other than the differences in their “particularly serious crime” provisions, and do so in ways connected to the Protocol and the Convention. These other differences go a long way toward explaining why the “particularly serious crime” exception is considerably broader substantively but more restrictive procedurally for asylum than for withholding of removal.
For an alien to be granted withholding of removal under the INA, he must show that it is “more likely than not” that he will be persecuted in the country to which he otherwise would be removed. INS v. Stevic,
By contrast, to be eligible for asylum an alien is not required to show that it is “more likely than not,” id. at 424,
These substantive differences between asylum and withholding of removal under the INA have important implications for how the “particularly serious crime” exception applies to each form of relief from removal. Withholding of removal is the form of relief essential to Congress’s goal of “conformance with the ... Protocol.” Id. at 436,
This critical substantive distinction between asylum and withholding of removal suggests some answers to the key question that the majority, puzzlingly, does not even ask: Why did Congress in IIRIRA adopt such distinctly different statutory language to define the same term — “particularly serious crime” — in § 1231(b)(3)(B), relating to withholding of removal, and in § 1158(b)(2)(B), relating to asylum? The evident reasons are two.
First, with respect to the asylum exception, Congress did not need to give the Attorney General the authority to “determine” on a case-specific basis which offenses constitute “particularly serious erime[s].” Even for aliens eligible for asylum, the Attorney General can exercise discretion not to grant asylum because of the alien’s criminal record, whether the alien has committed a “particularly serious crime” or not. The only reason to specify “particularly serious crimes” for asylum eligibility purposes, consequently, is to provide for uniformity with regard to categories of crimes. By contrast, aliens who qualify for withholding of removal are mandatorily entitled to such relief, see Stevic,
Second, the difference between the eligibility and discretion standards applicable to asylum and withholding of removal also helps explain why Congress made all aggravated felonies, not only those with sentences of five years or more, per se “particularly serious crimefs]” for asylum purposes and also why Congress did not restrict “particularly serious crimеs” to aggravated felonies for that purpose. Limitations on asylum relief do not risk violation of the Protocol, so long as withholding of removal relief conforming to the Protocol remains available. See, generally, L-S- 22 I. & N. Dec. at 652 (stating that “the reason for [Congress’] ... different approach” in § 1158(b)(2)(B) and § 1231(b)(3)(B) is that “Congress understood that in enacting revised section [§ 1231](b)(3), it was carrying forth the statutory implementation ... of our international treaty obligations”). Consequently, there was reason for Congress to take particular care with regard to withholding of removal, to assure that aliens who otherwise meet the statutory requirement for relief are denied this relief only for offenses that are likely to meet the “particularly serious crime” exception in the Protocol.
The majority turns a blind eye to all of these considerations — the meaning of the “particularly serious crime” locution in the original internal documents, the differences between asylum and withholding relief, and the obvious distinctions between the asylum and withholding “particularly
B. 8 U.S.C. § 1231(b)(3)(B)— Withholding of Removal
The majority concludes that § 1231(b)(3)(B) authorizes the Attorney General to designate any non-aggravated felony as a “particularly serious crime” for purposes of eligibility for withholding of removal.
1. Statutory Language
Initially, as the Third Circuit held in Alaka v. Atty. Gen. of the United States,
This Court has at least three times previously recognized that this is the natural reading of the statutory text. See Villegas v. Mukasey,
The majority, however, regards our earlier cases as not having adequately addressed the possibility that non-aggravated felonies are “particularly serious crimes,” and goes on to adopt the reasoning of the Seventh Circuit’s decision in Ali v. Achim,
First, the Ali/N-A-M- interpretation renders the sentence that begins “the previous sentence” entirely superfluous. If Congress’s (unstated) understanding was that the Attorney General could designate any offense as a particularly serious crime, then why would Congress need to say anything to negate the contrary implication of the “previous sentence”? And once Congress did choose to clarify that some discretion remained to the Attorney General, why would it limit that clarification to extending this authority “notwithstanding the length of a sentence,” if it meant to allow unlimited discretion? We simply don’t read statutes as throwing around loose, meaningless language for no discernible reason. See United States v. Novak,
The majority’s interpretation of § 1231(b)(3)(B) also conflicts with another basic interpretive rule, “expressio unius est exclusio alterius,” which specifies that the inclusion of one item ordinarily excludes similar items that could have been, but were not, mentioned. See Barnhart v. Peabody Coal Co.,
Ali suggests that the canon does not apply in this case because “ § 1231 does not state a general rule that only aggravated felonies can be considered ‘particularly serious.’ ”
Moreover, and critically, the majority’s interpretation fails to give effect to the distinctions in statutory language between § 1231(b)(3)(B) and § 1158(b)(2)(B). The latter states, in § 1158(b)(2)(B)(i), that any “[c]onviction of an aggravated felony,” is a particularly serious crime, but then adds, in § 1158(b)(2)(B)(ii), that “[t]he Attorney General may designate by regulation offenses that will be considered” a particularly serious crime, without any mention of “the length of the sentence imposed.” The majority nonetheless reads the authority accorded the Attorney General under the two quite different “particularly serious crime” provisions as identically broad. “[Wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Tang v. Reno,
To make matters worse, the majority’s interpretation of § 1231 (b)(3)(B)(ii) is also inconsistent with the rest of the subsection. As I explained earlier, the subsection also provides that an “alien [who] committed a serious nonpolitical crime outside the United States before the alien arrived in the United States” is ineligible for withholding of removal. § 1231(b)(3)(B)(iii) (emphasis added). “[W]hat constitutes a ‘serious nonpolitical crime’ is not susceptible of rigid definition.” INS v. Aguirre-Aguirre,
The short of the matter is that the majority’s reading of § 1231(b)(3)(B)(ii), like BIA’s reading in N-A-M-, clashes with one principle of statutory interpretation after another. Applying those principles, there is nothing ambiguous about the withholding exception for “particularly serious crimes.” And because the application of a myriad of “the traditional tools of statutory interpretation” to § 1231(b)(3)(B) shows that “the intent of Congress” — that non-aggravated felonies cannot qualify as “particularly serious crimes” for purposes of withholding of removal — is clear from the
The BIA’s opinion in N-A-M- does not warrant Chevron deference for the additional reason that the Board itself did not consider the opinion to reflect its reasonable interpretation of an ambiguous statute. Rather, the Board concluded that its position was compelled by a “plain reading of the Act.” See N-A-M- 24 I. & N. at 338. Bеcause the Board was not attempting to fill a gap left by Congress, it was not acting pursuant to an agency’s general authority to resolve statutory ambiguities, and its decision is therefore not entitled to deference. See Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin.,
2. Legislative History
On my understanding of the withholding exception for “particularly serious erimefs],” the analysis should stop with the words of the statute, read common-sensically, in context, and in light of established principles of statutory interpretation. See Cardoza-Fonseca,
As the majority accurately recounts, the “particularly serious crimes” concept first appeared in the INA in 1980, in a provision denying withholding of removal to an alien who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” Pub.L. No. 96-212, § 200, 94 Stat. 102 (1980). The majority does not recognize, however, that the original “particularly serious crime” concept was adopted from the Refugee Convention and Protocol’s non-refoulement provision, not created out of whole cloth by Congress. As such, the concept was intended, as its words suggest, as a quite narrow exception to the responsibility not to send aliens back to countries where they are likely to be persecuted on protected grounds, for crimes not only “serious,” but “particularly serious.”
The changes to § 243(a) here relevant all furthered Congress’s intent to assure compliance with the Refugee Convention and Protocol. First, in the Immigration Act of 1990 (“1990 Act”), soon after the first appearance of the “aggravated felony” concept in the INA in 1988, See Pub.L. 100-690, § 7342, 102 Stat. 4181 (1988), Congress created a categorical bar to withholding of removal for aliens convicted of aggravated felonies by designating all such offenses per se “particularly serious
Next, in 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which “expanded the definition of аggravated felony” to include a much greater range of offenses, thus broadening the “particularly serious crime” exception’s reach. See Choeum v. INS,
[T]o declare an aggravated felon anyone convicted of an offense involving imprisonment of one year, ... means that people with fairly minor offenses would be ineligible to seek withholding of deportation, [which] in many instances may violate the Refugee Convention.
Mark-up on S. 1664 before the Senate Committee on the Judiciary, 104th Cong., 2d Sess. 60-61 (1996). To address this concern, Congress included in AEDPA a provision allowing the Attorney General to override the 1990 Act’s categorical designation of “aggravated felonies” as “particularly serious crimes” if withholding of removal was “necessary to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees.” 8 U.S.C. § 1253(h) (current version at § 1231(b) (1996)); Choeum,
The final step in the evolution of the withholding of removal “particularly serious crime” exception was the enactment, later in 1996, of IIRIRA, which gave us the current statutory text of the INA and yet again expanded significantly the “aggravated felony” concept. See Pub.L. No. 104-208, Div. C, § 321, 110 Stat. 3009-546, 3009-627-3009-628. In particular, for several offenses Congress reduced the minimum penalty necessary fоr a conviction to qualify as an aggravated felony from five years to one, see § 321(a)(3), (10), (11). This vast broadening of the “aggravated felony” category of crimes had obvious implications for the usefulness of that category as a stand-in for the “particularly serious crime” withholding exception. It was in that context that Congress, in IIRIRA, removed the 1990 Act’s broad categorical bar for all aggravated felonies as well as AEDPA’s override provision, substituting for both (1) the narrower categorical bar for aggravated felonies “for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years,” and (2) the provision for “the Attorney General ... [to] determine] that, notwithstanding the length of sentence imposed,[the] alien has been convicted of a particularly serious crime.” The current statutory text thus is most sensibly understood as still another attempt to implement the “particularly serious crime” exception in a manner that conforms with the Protocol, this time accounting for IIRIRA’s further broadening of the aggravated felony category by both limiting the per se category to a subset of aggravated felonies
Nothing in this history suggests a Congressional intent in 1996 to allow the Attorney General to designate as “particularly serious crimes” offenses so minor that Congress did not regard them as within the now broad category of “aggravated felonies” used for other INA and immigration law purposes.
In sum, the statutory text of § 1231(b)(3)(B), interpreted in context and in light of established canons of statutory construction, can only be read — and we have always read it — as providing the Attorney General the authority to determine that aggravated felonies with sentences of less than a year, but not other crimes, are “particularly serious” for the purposes of eligibility for withholding of removal. Nothing in the legislative history indicates otherwise. I therefore cannot agree with the majority’s conclusion that the Attorney General has free rein to call any crime “particularly serious” and so send an alien to a country where he is likely to be persecuted.
C. 8 U.S.C. § 1158(b)(2)(B)(ii)— Asylum
Nor can I agree with the majority’s reading of the quite different asylum provision concerning “particularly serious crimes.” Adopting, once again, the reasoning of the Seventh Circuit in Ali, the majority concludes that the IJ was authorized to decide on a case-specific basis that Delgado’s nonaggravated felony convictions also qualified as particularly serious crimes, rendering him ineligible for asylum under § 1158(b)(2)(B). See
The first problem with this reading of the statute is that it is not what the statute says. The “by regulation” sentence is general; it is not limited to categorical distinctions. And the statute does not provide for any other way of determining that offenses are “particularly serious” for asylum purposes.
Moreover, the majority’s implication from silence does not explain why Congress included the “by regulation” sentence. Indeed, under the majority’s interpretation, the sentence is — once more— entirely surplusage. “Absent express congressional direction to the contrary, agenciеs are free to choose ... between rule making and adjudication.” Davis v. EPA,
Similar language concerning the promulgation of regulations as to particular issues has been understood to require regulations as the mode of agency decisionmaking as to that issue. See Davis,
This implication is strengthened by the consideration that no similar “by regulation” sentence appears in the withholding of removal section governing “particularly serious crimes,” a difference that should be accorded some significance. See City of Chicago v. Envtl. Def. Fund,
This understanding of the textual differences makes perfect sense in light of other differences between asylum and withholding of removal. The Attorney General retains discretion to decide on a case-by-case basis whether to grant asylum to eligible applicants. Cardozar-Fonseca,
Further, on my reading, Congress has already designated for withholding purposes the universe of offenses that can be designated as “particularly serious crimes” — aggravated felonies, as defined in the INA. See 8 U.S.C. § 1101(a)(43). As the authority accorded the Attorney General with regard to asylum is not so circumscribed, Congress could well have preferred a formal process, subject to public comment and to uniform application.
Finally, making such designations “by regulation” would not require the Attorney General to “sift through each state’s [penal] code” to “identify through regulation every single ‘particularly serious’ [crime].” Ali,
In sum, Congress chose to require designation of ^ore-aggravated felonies as “particularly serious crimes” for asylum purposes by formal promulgation of regulations, while allowing case-by-case designation of “particularly serious crimes” for withholding purposes, but only from among aggravated felonies. Any other reading of the two statutes once again makes sameness out of difference and supposes that Congress indulged in redundancy and indirection.
II. Jurisdiction
The majority accepts that we may decide the issues I have already discussed, presumably because they are purely legal issues. See 8 U.S.C. § 1252(a)(2)(D). But the majority concludes that we lack jurisdiction to review the merits of the BIA’s ultimate determination that Delgado’s DUI
In Matsuk v. INS, we held that the authority granted by 8 U.S.C. § 1231(b)(3)(B) to deny withholding of removal of an alien “if the Attorney General decides that ... [the] alien has been convicted of a particularly serious crime” is discretionary within the meaning of § 1252(a)(2)(B)(ii), and therefore that the BIA’s denial of withholding on this basis is not reviewable by this Court. See
Matsuk’s conclusion on this specific point has, however, recently been rejected by two circuits, in opinions I find persuasive. See Alaka v. Atty. General of the United States,
Moreover, Matsuk is in tension with our own case law. Matsuk stated that,
The decision to deny withholding to Matsuk was based upon the Attorney General’s discretion, pursuant to Section 1231(b)(3)(B)(ii), to determine whether an aggravated felony conviction resulting in a sentence of less than 5 years is a particularly serious crime. Thus Section 1252(a)(2)(B)(ii) divests this court of jurisdiction to review this issue.
As this Court recognized in Spencer Enterprises, however, § 1252(a)(2)(B)(ii) does not deprive us generally of jurisdiction to review “discretionary decisions” of the Attorney General under the INA.
I note, however, that at least some of the issues Delgado seeks to raise on the merits regarding the IJ’s designation of his offenses as a particularly serious crime are not ones that fall within the jurisdiction-stripping provisions of § 1252(a)(2)(B)(ii). Congress, in the REAL ID Act, has made clear that § 1252(a) (2) (B) (ii) does not “preclude! ][our] review of ... questions of law raised upon a petition for review.” § 1252(a)(2)(D). In Morales, this Court considered, in light of the REAL ID Act, how broadly to construe Matsuk’s holding regarding the BIA’s unreviewable discretion to determine that a specific offense is a particularly serious crime. See Morales,
In his petition for review, Delgado questions whether, as a matter of law, DUI convictions can constitute a “pаrticularly serious crime” under § 1231(b)(3)(B), and whether this statute should be applied retroactively to his convictions. See Ramadan v. Gonzales,
Conclusion
I cannot agree with the majority that the BIA has authority to make “particularly serious crime” determinations for asylum purposes on a case-specific basis. I also would conclude that the IJ and BIA erred as a matter of law in determining that Delgado’s convictions rendered him ineligible for withholding of removal under § 1231(b)(3)(B), so I would remand for consideration of the merits of this claim as well. I agree, however, that Delgado is eligible for asylum, and that we lack jurisdiction, for the most part, over the application of the withholding of removal standard. I therefore concur in the majority opinion to that extent.
. Confirming this understanding of the exception’s scope are the specific examples of "particularly serious crime” offered by a leading commentator on the Convention. See Grahl-Madsen, Commentary on the Refugee Convention, 1951, art. 33 cmt. 10 (1997). The examples given are instances of murder with aggravating circumstances, for which conviction, in our own legal system, would typically be punishable by death or a life sentence. See id. (offering as examples of particularly serious crimes “blowing up ... a passenger airplane in order to collect life insurance, or wanton killing in a public place.”).
. The majority views this issue as one of first impression in our circuit. In so concluding, the majority misreads our decision in Morales as having "assumеd ... [that] the Attorney General could deem a non-aggravated felony 'particularly serious.' " Maj. Op. at 867 n. 5. In fact, Morales recognized that such an interpretation is not in accord with our previous cases; instead, it "broadens the discretion we have previously determined that § 1231(b)(3)(B)(ii) gives the Attorney General.”
Quite arguably, the question is not one that can be properly decided by a three-judge panel, given the earlier cases construing § 1231(b)(3)(B) as not encompassing the broad discretion the BIA now claims. See In re Complaint of Ross Island Sand & Gravel,
. Among other things, the “aggravated felon[]“ designation requires mandatory detention, 8 U.S.C. § 1226(c)(1)(B), permits expedited removal proceedings, 8 U.S.C. § 1228, and may disqualify the alien from benefits such as cancellation of removal for permanent residents, 8 U.S.C. § 1229b(a), temporary protected status, 8 U.S.C. § 1254a(c)(2), and pre- and post-hearing voluntary departure, 8 U.S.C. §§ 1229c(a)(l) & (b)(1).
. As to this issue, neither the BIA’s decision in this case, nor its underlying opinion reviewed in Ali are published opinions. No published BIA opinion discusses whether § 1158(b)(2)(B) permits the determination of whether an offense is a "particularly serious crime” on a case-by-case basis, rather than "by regulation." We therefore do not owe the BIA Chevron deference on this point. See Garcia-Quintero v. Gonzales,
. Spencer Enterprises’ actual holdings, however, concerned the applicability of § 1252(a)(2)(B)(ii). to a different provision of the INA, § 1153(b)(5). See