121 F.3d 521 (9th Cir. 1997), 96-70267, Aguirre-Aguirre v. I.N.S.

Docket Nº:96-70267.
Citation:121 F.3d 521
Party Name:D.A.R. 10,337 Juan Anibal AGUIRRE-AGUIRRE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:August 08, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 521

121 F.3d 521 (9th Cir. 1997)

D.A.R. 10,337

Juan Anibal AGUIRRE-AGUIRRE, Petitioner,



No. 96-70267.

United States Court of Appeals, Ninth Circuit

August 8, 1997

Argued and Submitted May 7, 1997.

Page 522

Ralph J. Leardo, Law Offices of Nancy Ann Fellom, San Francisco, CA; Veronica L. Burris-Valentine, Tingey & Burris, Las Vegas, NV; Nadine K. Wettstein, Tucson, AZ, for petitioner.

Ronald E. LeFevre, Chief Legal Officer, Immigration and Naturalization Service, San Francisco, CA; Joan E. Smiley, Hugh G. Mullane, M. Jocelyn Lopez Wright, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service, San Francisco, California. INS No. A70-815-341.

Before: PREGERSON, JOHN T. NOONAN, Jr., and KLEINFELD, Circuit Judges.

NOONAN, Circuit Judge:

Juan Anibal Aguirre-Aguirre (Aguirre) petitions for review of the order of the Board of Immigration Appeals (the Board) finding him ineligible for withholding of deportation and asylum. Holding that the Board has erred as a matter of law in its interpretation of 8 U.S.C. § 1253(h)(2)(C) (1994) ("serious nonpolitical crime"), we grant the petition and remand.


Aguirre entered the United States without inspection. Before the Immigration Judge (IJ) he conceded deportability and applied for asylum and withholding of deportation. He testified to his activities in Guatemala as a student leader, among them the burning of ten buses and the messing up of several stores as a way of demonstrating against the ruling government of Guatemala and in particular against its raising of student fares on the buses (an element of student transportation) and its indifference to, and possible complicity in, the mysterious disappearances and deaths of political activists. Carefully reviewing Aguirre's testimony and finding it wholly believable, the IJ granted both asylum and withholding of deportation.

On appeal by the Immigration and Naturalization Service (the Service), the Board reversed. The Board disagreed with the Service's contention that Aguirre had engaged in terrorist acts as defined by 8 U.S.C. § 1182(a)(3)(B)(ii) (1994). The Board also disagreed with the Service's contention that Aguirre was a danger to the security of the country under 8 U.S.C. § 1253(h)(2)(D) (1994) and 8 C.F.R. § 208.14(c)(3). However, the Board held that the "nature of his acts against innocent Guatemalans" made him unworthy of a favorable exercise of discretion and that therefore it was unnecessary to address his statutory eligibility for asylum. The Board further held that "the criminal nature of the respondent's acts outweigh their political nature" and that he was consequently barred from withholding of deportation

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without the Board needing to address the issue of his statutory eligibility for this relief. In reaching its decision the Board did not consider what Aguirre might suffer if deported to Guatemala, nor did the Board weigh the character of Aguirre's crimes in relation to his political objectives, nor did the Board follow Ninth Circuit precedent in this area. The Board also denied Aguirre voluntary departure.

Aguirre petitions for review.


This case depends upon the construction of a single statutory provision, 8 U.S.C. § 1253(h)(2)(C) (1994), declaring that an alien is not entitled to withholding of deportation if the Attorney General determines that "there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." We review de novo the Board's interpretation of the requirements for establishing eligibility for withholding of deportation. Abedini v. INS, 971 F.2d 188, 190-91 (9th Cir.1992).

The statute at issue here has been considered by us in McMullen v. INS, 788 F.2d 591 (9th Cir.1986). Construing the statute, we found that Congress "intended the nonpolitical crimes exception to withholding of deportation to be consistent with the Convention [Relating to the Status of Refugees, 189 U.N.T.S. 150 (1951) ] and Protocol [Relating to the Status of Refugees, 19 U.S.T. 6223 (1968) ]." McMullen, 788 F.2d at 595. The United States is a party to the Protocol, and the Protocol, Article 1.2, defines the term "refugee" as "any person within the definition of Article 1 of the Convention." The relevant definition in Article 1F of the Convention excludes a person who "has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee."

In April, 1996 the Immigration and Nationality Act, 8 U.S.C. 1253(h), was amended by providing that an alien must be granted withholding of deportation if such grant was "necessary to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees." Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 413(f), 110 Stat. 1214, 1269 (1996) (adding 8 U.S.C. § 1253(h)(3)). It is unnecessary for us to determine whether this statute applies to Aguirre's case because under McMullen we are already bound to apply the Protocol in decisions regarding the withholding of deportation.

Interpreting and applying the statute in the light of McMullen and the Protocol, we find that the Board committed errors of law. First, the Board looked only at the offenses of Aguirre, which at common law would be considered crimes against property (the burning of the buses and the throwing of store merchandise on the floor) and minor assaults and batteries (the means taken to get reluctant bus passengers off the buses before their destruction). The Board did not consider these offenses in relation to Aguirre's declared political objectives. Under the Protocol the Board should have first determined the nature and purpose of Auirre's acts, that is whether they were "committed out of genuine political motives and not merely for personal reasons or gain," as stated by an authoritative commentary on the Convention and Protocol. United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees p 152 (1979) [hereafter UNHCR, Handbook ]. See INS v....

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