N-a-M v. Holder, 07-9580.

Citation587 F.3d 1052
Decision Date20 November 2009
Docket NumberNo. 08-9527.,No. 07-9580.,07-9580.,08-9527.
PartiesN-A-M, Petitioner, v. Eric H. HOLDER, Jr. Attorney General of the United States, Respondent, United Nations High Commissioner for Refugees; Deborah Anker; Guy S. Goodwin-Gill; James C. Hathaway; Amici Curiae.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Deborah Anker, Cambridge, Massachusetts, and Jeff Joseph, Joseph Law Firm, Denver, CO, filed an Amicus Curiae brief for Deborah Anker, Guy S. Goodwill, and James C. Hathaway, in support of Petitioner.

Before HENRY, Chief Judge, MURPHY and TYMKOVICH, Circuit Judges.

PER CURIAM.

Petitioner N-A-M seeks review of a Board of Immigration Appeals' ("BIA") decision to remove her to her native El Salvador.1 Although the Immigration Judge determined that N-A-M had a "viable persecution claim," I.J. Dec. at 8, the Immigration Judge denied, and the BIA affirmed, her petition for withholding of removal because she had been convicted of felony menacing—a "particularly serious crime," pursuant to the Refugee Act of 1980, Pub.L. 96-202, 94 Stat. 102, see 8 U.S.C. § 1231.

On appeal, N-A-M asserts three legal errors in the BIA's decision: First, she argues that felony menacing does not constitute a "particularly serious offense" as contemplated by § 1231; second, she asserts that the BIA applied the wrong legal framework in adjudicating her case; and third, she contends that she was denied due process of law. Finding no error of law, we affirm.

BACKGROUND

Appellant, N-A-M, is a thirty-eight year old preoperative transsexual (male-to-female) from El Salvador. In El Salvador, N-A-M was subjected to multiple instances of persecution due to her transgendered status, and fled to the United States in 2004, entering without inspection.

In June 2005, N-A-M was convicted of felony menacing, in violation of Colo.Rev. Stat. § 18-3-206(1)(a), (b) and reckless endangerment, in violation of Colo.Rev.Stat. § 18-3-208. Upon conviction, N-A-M was sentenced to four years deferred judgment and four years of probation.

In November 2006, N-A-M was served with a Notice to Appear before an immigration judge to show why she should not be removed from the United States. She filed an application for asylum pursuant to 8 U.S.C. § 1158, an application for withholding of removal, pursuant to 8 U.S.C. § 1231(b)(3), and an application for withholding of removal under the regulations implementing the Convention Against Torture, at 8 C.F.R § 1208.16(c), 18. Of these, only N-AM's withholding claim is before us.

Under 8 U.S.C. § 1231(b)(3)(A),

the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.

However, § 1231(b)(3)(B)(ii) provides an exception to withholding of removal if:

(B) Exception.

Subparagraph (A) does not apply to an alien deportable under section 1227(a)(4)(D) of this title or if the Attorney General decides that—

. . . .

(ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States; . . .

. . . .

For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime. For purposes of clause (iv), an alien who is described in section § 1227(a)(4)(B) shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States.

(emphasis added).

The Immigration Judge found that although N-A-M has suffered persecution as contemplated by § 1231(b)(3)(A), her conviction for felony menacing rendered her eligible for removal pursuant to § 1231(b)(3)(b)(ii). The Immigration Judge stated that although N-A-M "has been persecuted in the past . . . [She] has been convicted of a particularly serious crime and thereby constitutes a danger to the community. . . . And, therefore, even though the respondent has a viable persecution claim, [her] application is denied as a matter of law." I.J. Dec. at 7-8.

In April 2007, N-A-M appealed the Immigration Judge's decision to the BIA, contending that the Immigration Judge erred in his construction of § 1231, and violated her due process rights by considering evidence outside of the record of conviction. In a published decision, the Board affirmed the decision of the Immigration Judge. In re N-A-M, 24 I. & N. Dec. 336 (BIA 2007). Turning first to N-A-M's particularly serious offense claim, the BIA concluded that "Congress did not intend to limit what offenses may be particularly serious crimes to those offenses classified as aggravated felonies." Id. at 341. As to N-A-M's danger to the community claim, the BIA observed that it "no longer engage[d] in a separate determination to address whether the alien is a danger to the community." Id. at 341. And finally, in addressing N-A-M's due process challenge, the BIA noted that it "may examine all reliable information and [is] not limited to reviewing the record of conviction and sentencing information." Id. at 343.

The Board denied N-A-M's petition for rehearing en banc on March 11, 2008. These petitions followed.

DISCUSSION

Under 8 U.S.C. § 1252(a)(2), we have jurisdiction to review constitutional challenges and questions of law raised in a petition for review from a BIA decision. Brue v. Gonzales, 464 F.3d 1227, 1231 (10th Cir.2006) (citing 8 U.S.C. § 1252(a)(2)(D)). We review N-A-M's statutory challenge and her due process claim de novo.2 Id. at 1232. Consistent with the rule in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the BIA is entitled to deference in interpreting ambiguous provisions of the INA under the specific facts of this case.

1. Non-aggravated felonies may constitute "particularly serious" crimes for purposes of 8 U.S.C. § 1231.

N-A-M challenges the BIA's statutory construction of what constitutes a "particularly serious crime" under § 1231. See Aplt's Br. at 43. She urges us to accept our sister circuit's limitation of "particularly serious" offenses to aggravated felonies.3 See, e.g., Alaka v. Atty. Gen'l of the U.S., 456 F.3d 88, 104 (3d Cir.2006) ("The plain language and structure (i.e., context) of the statute indicate that an offense must be an aggravated felony to be sufficiently 'serious.'") (emphasis in original). Because her conviction did not constitute an aggravated felony, she argues, the BIA erred in classifying her felony menacing conviction as a "particularly serious" offense.

The BIA has developed administrative standards for determining what constitutes a particularly serious crime. See Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982) ("In judging the seriousness of a crime, we look 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."). We agree that apart from the designation of certain aggravated felonies as "particularly serious" offenses, the statute contains no limiting language restricting the Attorney General's discretion to label other crimes as "particularly serious." And, "[t]he long history of case-by-case determination of 'particularly serious' crimes" counsels against N-A-M's attempt to craft a brightline rule. Delgado v. Holder, 563 F.3d 863, 868 n. 7, 869 (9th Cir.2009) (noting that nothing in the statutory framework indicates an intent "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'"). Furthermore, Congress's use of two different terms — "particularly serious" crime and "aggravated felony" — is additionally indicative of substantively distinct meanings. See, e.g., United States v. Villanueva-Sotelo, 515 F.3d 1234, 1249 (D.C.Cir.2008). Given these somewhat open-ended definitions, the BIA or the Attorney General is authorized to develop a reasonable construction § 1231 to which we defer under Chevron.

2. Section 1231 does not require a separate "danger to the community" assessment.

Section 1231(b)(3)(b)(ii) empowers the Attorney General to deny withholding to alien petitioners upon a determination that the petitioner "having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." The BIA construes this provision as requiring only an inquiry into whether the alien has committed a particularly serious crime. "[O]nce an alien is found to have committed a particularly serious crime, we no longer engage in a separate determination to address whether an alien is a danger to the community." 24 I. & N. Dec. at 342. N-A-M challenges the BIA's construction of § 1231, contending that the BIA's omission of an inquiry into whether the facts and circumstances of her felony menacing conviction...

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