648 F.3d 1095 (9th Cir. 2011), 03-74442, Delgado v. Holder

Docket Nº:03-74442.
Citation:648 F.3d 1095
Opinion Judge:FISHER, Circuit Judge:
Party Name:Hernan Ismael DELGADO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
Attorney:Niels W. Frenzen (argued), University of Southern California Gould School of Law, Los Angeles, CA, and J. Thomas Logan, Los Angeles, CA, for the petitioner. Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, and Erica B. Miles (argued), Attorney, U.S. Dep...
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, WILLIAM C. CANBY, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, M. MARGARET McKEOWN, RAYMOND C. FISHER, JAY S. BYBEE, CONSUELO M. CALLAHAN, CARLOS T. BEA, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges. Opinion by Judge FISHER; Partial Concurrence and Par...
Case Date:August 19, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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648 F.3d 1095 (9th Cir. 2011)

Hernan Ismael DELGADO, Petitioner,

v.

Eric H. HOLDER Jr., Attorney General, Respondent.

No. 03-74442.

United States Court of Appeals, Ninth Circuit.

August 19, 2011

Argued and Submitted Dec. 16, 2010.

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Niels W. Frenzen (argued), University of Southern California Gould School of Law, Los Angeles, CA, and J. Thomas Logan, Los Angeles, CA, for the petitioner.

Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, and Erica B. Miles (argued), Attorney, U.S. Department of Justice, Washington, D.C., for the respondent.

Stephen W. Manning, Jennifer M. Rotman and Jessica M. Boell, Immigrant Law Group PC, Portland, OR, for amicus curiae American Immigration Lawyers Association.

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H. Elizabeth Dallam, Office of the United Nations High Commissioner for Refugees, Washington, D.C., for amicus curiae Office of the United Nations High Commissioner for Refugees.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078-461-226.

Before: ALEX KOZINSKI, Chief Judge, WILLIAM C. CANBY, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, M. MARGARET McKEOWN, RAYMOND C. FISHER, JAY S. BYBEE, CONSUELO M. CALLAHAN, CARLOS T. BEA, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges.

Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge REINHARDT.

OPINION

FISHER, Circuit Judge:

Hernan 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 affirmed the immigration judge's (IJ) ruling that Delgado was ineligible for asylum, withholding of removal and withholding under the Convention Against Torture (CAT) because he had been " convicted of a particularly serious crime" — driving under the influence (DUI). 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). The BIA also ruled that Delgado was ineligible for deferral of removal under CAT because he failed to prove a likelihood of future torture. We grant the petition in part, deny it in part and remand to the BIA. 1 We hold as follows:

First, we hold that we have jurisdiction to review the BIA's determination that an alien has been convicted of a " particularly serious crime" and is therefore ineligible for withholding of removal. We held otherwise in Matsuk v. INS, 247 F.3d 999 (9th Cir.2001), relying on 8 U.S.C. § 1252(a)(2)(B)(ii), which strips us of jurisdiction to review " any ... decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified ... to be in the discretion of the Attorney General or the Secretary of Homeland Security." 2 We now overrule Matsuk in light of the Supreme Court's decision that § 1252(a)(2)(B)(ii) bars judicial review " only when Congress itself set out the Attorney General's discretionary authority in the statute." Kucana v. Holder, __ U.S. __, 130 S.Ct. 827, 837, 175 L.Ed.2d 694 (2010).

Second, we hold that, for purposes of withholding of removal, an offense need not be an aggravated felony to be a particularly serious crime. The BIA has so held in a precedential decision, In re N-A-M- (N-A-M- I), 24 I. & N. Dec. 336, 337 (B.I.A.2007). That decision is entitled to deference under Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, that driving under the influence is not statutorily defined as an aggravated felony

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does not preclude the BIA from determining that DUI can be a particularly serious crime.

Third, we hold that, for asylum purposes, the Attorney General has the authority to designate offenses as particularly serious crimes through case-by-case adjudication as well as regulation. The BIA— as the Attorney General's delegate— was thus permitted in this case to determine whether Delgado's DUI offenses were particularly serious for purposes of asylum eligibility.3

The remaining question is whether the BIA properly concluded that Delgado was convicted of a particularly serious crime and thus barred from eligibility for withholding of removal and asylum. The BIA's explanation for its decision is so ambiguous that we cannot conduct meaningful judicial review. We therefore remand to the BIA for a clear explanation. See Su Hwa She v. Holder, 629 F.3d 958, 963-64 (9th Cir.2010); Eneh v. Holder, 601 F.3d 943, 947 (9th Cir.2010).

I. BACKGROUND

Delgado, a native and citizen of El Salvador, entered the United States on a nonimmigrant visitor visa in 1980. He fled El Salvador at age 10 after his mother and father were tortured and murdered for their political opinions. Delgado overstayed his visa and has remained in the United States since his entry in 1980. During his time in the United States, he has been convicted of DUI three times.

Delgado's first DUI conviction was in 1992. That conviction arose from an accident occurring when the vehicle he was driving collided with another vehicle. Both Delgado and his passenger suffered broken legs; it is not clear whether anyone in the other vehicle was injured. He received a one-year jail sentence.

His second DUI conviction occurred in 2000. Delgado was stopped for driving 85 miles an hour and weaving on a highway. He failed a field sobriety test, pled guilty to DUI and received a 16-month prison sentence. Upon his release on parole in July 2001, the Immigration and Naturalization Service (INS) took him into custody and initiated removal proceedings against him.4 The INS charged that Delgado was removable for overstaying his 1980 visa and because his latest DUI was an aggravated felony.5 An immigration judge released Delgado on bond.

Delgado's third DUI conviction followed. In December 2001, while Delgado was still on parole and had a suspended license, he was stopped for unsafe driving after being observed weaving between lanes on an interstate highway. His blood alcohol level was 0.12. He was convicted of DUI and sentenced to two years' imprisonment.

At his subsequent immigration hearing, Delgado, proceeding pro se, conceded removability but sought asylum, withholding of removal, CAT withholding and CAT deferral, claiming that he would be persecuted if returned to El Salvador. 6

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The IJ denied Delgado's applications for withholding of removal, asylum and CAT withholding. In each case, the IJ concluded that Delgado was ineligible for relief because he had been convicted of a particularly serious crime. The IJ " conduct[ed] an individualized hearing to determine whether [Delgado's] convictions individually or cumulatively constitute[d] particularly serious crimes," and determined that each of Delgado's three DUI convictions was a particularly serious crime that barred him from eligibility for asylum under § 1158(b)(2)(A)(ii), withholding of removal under § 1231(b)(3)(B)(ii) and CAT withholding under 8 C.F.R. § 1208.16(d)(2). In the alternative, the IJ concluded that Delgado's DUI offenses were " particularly serious crimes" when considered cumulatively.

The IJ also denied Delgado's request for CAT deferral under 8 C.F.R. § 1208.17.7 The IJ accepted that Delgado's parents were killed in 1980 on account of their political activities, but found that, as a result of improved country conditions, Delgado did not show that it was more likely than not that he would be tortured were he returned to El Salvador.

The BIA affirmed in an unpublished, per curiam decision signed by one member of the Board. The decision stated that Delgado " presented no arguments on appeal that would cause us to reverse the Immigration Judge's decision." On the particularly serious crime question, the Board said only: " Based on the record before us, we agree with the Immigration Judge that the respondent is subject to removal from the United States based on ... his record of convictions which rise to the level of being a particular[ly] serious crime...."

II. DISCUSSION

Delgado raises three principal arguments in his petition for review. First, he contends that the BIA lacked the authority to treat his DUI offenses as particularly serious crimes for purposes of withholding of removal because only statutorily defined aggravated felonies can be treated as particularly serious crimes under § 1231. Second, he contends that the BIA lacked the authority to treat his DUI offenses as particularly serious crimes for purposes of asylum because only aggravated felonies and offenses designated by the Attorney General by regulation — as opposed to case-by-case adjudication— can constitute particularly serious crimes under § 1158. Finally, Delgado argues that, even if the BIA had authority to treat his DUI offenses as particularly serious crimes for purposes of withholding of removal, asylum or both, the BIA erroneously concluded that his DUI offenses were in fact particularly serious. We address Delgado's arguments in turn. Before doing so, however, we consider our jurisdiction.

A. Jurisdiction

There is no question that we have jurisdiction over this case to the extent it involves questions of statutory interpretation. See 8 U.S.C. § 1252(a)(2)(D); Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam). Nevertheless, we previously held that we lacked jurisdiction to review the determination that a crime was particularly serious for purposes of withholding of removal. See

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Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir.2001). We decided that we lacked jurisdiction over the question because § 1231 directs the Attorney General to " decide" whether there was a conviction for a particularly serious crime and § 1252(a)(2)(B)(ii) provides that " no court shall have jurisdiction to...

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