Alphonsus v. Holder

• Decision Date: 18 January 2013
• Docket Number: No. 10–73298.,10–73298.
• Parties: Anthony Aloysius ALPHONSUS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

705 F.3d 1031

Anthony Aloysius ALPHONSUS, Petitioner,

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

No. 10–73298.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 8, 2012.

Filed Jan. 18, 2013.

Matthew L. Hoppock, Dunn & Davison, LLC, Kansas City, MO, pro bono counsel for Petitioner.

Tony West, Assistant Attorney General, Civil Division; Terri J. Scadron, Assistant Director; and Corey L. Farrell (argued), Attorney, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A070–942–161.

Before: HARRY PREGERSON, SUSAN P. GRABER, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge BERZON; Partial Concurrence and Partial Dissent by Judge GRABER.

OPINION

BERZON, Circuit Judge:

Our case concerns the “particularly serious crime” concept embodied in our immigration statutes, recently the subject of an extensive opinion by an en banc panel of this Court. See Delgado v. Holder, 648 F.3d 1095 (9th Cir.2011) (en banc). After deciding various other issues, Delgado remanded the case to the Board of Immigration Appeals (“BIA” or “Board”), concluding that the BIA had not adequately explained why the crime in that case fit into the “particularly serious crime” category and therefore barred withholding of removal relief (and asylum relief, not here at issue) for the otherwise removable petitioner in that case. We reach a similar result here, remanding after reviewing in some detail the BIA's “particularly serious crime” precedents and determining that the Board has not adequately explained how the result in this case fits within any current framework created by those precedents.

More specifically, Anthony Aloysius Alphonsus petitions for review of a BIA decision ordering him removed to his native Bangladesh. The BIA affirmed the immigration judge's (“IJ”) determination that Alphonsus is ineligible for withholding of removal and withholding under the Convention Against Torture (“CAT”), because his conviction for resisting arrest constitutes a particularly serious crime. The Board also affirmed the IJ's conclusion that Alphonsus would not likely be tortured if returned to Bangladesh and is ineligible for deferral of removal under CAT. Alphonsus challenges the BIA's determination that he was convicted of a particularly serious crime and its conclusion that he is not likely to be tortured in Bangladesh. Because the Board has not adequately explained its reasons for designating Alphonsus's conviction a particularly serious crime, we grant the petition with respect to the particularly serious crime determination and remand to the BIA for an appropriate explanation. As to Alphonsus's CAT claim for deferral of removal, we deny the petition.

I. Background

Alphonsus is a native and citizen of Bangladesh. Around 1976 or 1977, Muslims in Bangladesh started attacking Alphonsus on account of his Christian beliefs. ¹ The first incident occurred when Alphonsus was roughly sixteen years old. Several Muslims beat him severely, threatened him, and threw him off a bridge. As a result of the fall, Alphonsus broke his leg and had to go to the hospital. Alphonsus fled to India and stayed there for about a year. After he returned to Bangladesh, the beatings resumed. Alphonsus made several reports to the police; they only made fun of him, spat on him, or chased him away.

Around 1987, a group of Muslims kidnaped Alphonsus and took him to an undisclosed location; there they beat him, hit him with a machete, and threatened to kill him. Roughly two months later, Alphonsus was beaten and stabbed in the hand. Around this time, several of Alphonsus's friends were killed on account of their Christian beliefs.

At that point, Alphonsus decided to seek refuge in the United States. He was admitted as a nonimmigrant on February 24, 1988, and adjusted his status to lawful permanent resident several years later. When he last spoke with his family members in Bangladesh, around 1997, they told him that the people who had threatened him were still looking for him.

Before the events at issue in this case, Alphonsus had been convicted of several offenses, including petty theft, driving under the influence, and injury of a spouse. Two months after being paroled on a prior conviction, Alphonsus shoplifted about $131 of merchandise from a Rite–Aid. As Alphonsus left the store, a police officer ordered him to stop, but he ran instead. According to a government-submitted police report, Alphonsus ran through traffic, forcing vehicles to stop suddenly to avoid striking him. A police officer on motorcycle approached Alphonsus and ordered him to stop running, but Alphonsus continued to flee. Dismounting his motorcycle, the officer ran after Alphonsus, who stopped and “presented his body in a fighting type stance, even after being told numerous times by [the officer] to lay on the ground.” The officer thereupon grabbed hold of Alphonsus's shirt, but Alphonsus struggled, causing the officer to lose hold of the shirt. When the officer again tried to grab Alphonsus and “assist him to the ground,” Alphonsus pushed the officer's upper body with both hands, causing the officer to land in “a medium sized flower bed.”

The officer regained his balance and resumed the chase. Once again, Alphonsus darted through traffic, causing vehicles to stop suddenly. Drawing his taser, the officer issued several commands for Alphonsus to stop. Eventually, Alphonsus turned and raised his hands in what seemed to be “another fighting stance,” but the officer successfully deployed the taser, causing Alphonsus to fall to the ground. He was taken into custody shortly thereafter.

Alphonsus was convicted of petty theft with priors, in violation of California Penal Code § 666, and resisting an executive officer, in violation of California Penal Code § 69.² He was sentenced to sixteen months' imprisonment on each count, to run concurrently.

After Alphonsus's release, the Department of Homeland Security (“DHS”) initiated removal proceedings. Because Alphonsus had two convictions for petty theft with priors, the government charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien who has been convicted of two crimes of moral turpitude after admission, and under § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, specifically a theft or burglary offense. ³ Alphonsus applied for asylum, withholding of removal, and protection under CAT. The IJ sustained both charges of removability and determined that Alphonsus's aggravated felony conviction renders him ineligible for asylum.

As to the application for relief from removal, the IJ explicitly declined to find that Alphonsus's conviction for resisting arrest constitutes an aggravated felony crime of violence. But he held that the resisting arrest conviction does constitute a “particularly serious crime,” rendering Alphonsus ineligible for withholding of removal. In so holding, the IJ made two points. First, he stated: “[O]n looking at the elements of this crime, the facts and circumstances that gave rise to the crime, from the police report, the respondent's testimony, this Court is satisfied that the very nature of this type of crime, resisting an executive officer in the performance of his lawful duties, is just exactly the type of crime that makes [Alphonsus] a danger to the community. This is a particularly serious crime.” Second, the IJ added: “[B]ased upon that analysis, and taking into consideration the Government's analysis that this is the type of a crime that not only is a crime against the officer, but it is a crime against the orderly pursuit of justice in the United States by its commission, that it also qualifies as a particularly serious crime.”

With respect to Alphonsus's CAT claim, the IJ reviewed Alphonsus's testimony and the documentary evidence in the record. Relying on the documentary evidence, including the country reports submitted by both Alphonsus and the government, the IJ found that Alphonsus had not shown that he would more likely than not be persecuted with government acquiescence and, accordingly, denied Alphonsus's application for deferral of removal under CAT.

Alphonsus appealed to the BIA, challenging the IJ's conclusions that he is ineligible for withholding of removal and protection under CAT. A divided panel of the BIA affirmed.

The BIA agreed with the IJ's finding that Alphonsus's crime “was not only a crime against the officer, but ‘a crime against the orderly pursuit of justice in the United States.’ ” The Board further stated that Alphonsus's actions “created a meaningful risk of harm to others and to the officer by the manner in which he tried to escape arrest.” Board Member Linda Wendtland dissented in part, stating: “Although the conduct of which [Alphonsus] was convicted was reprehensible, it did not rise to a level sufficiently serious to bar him from withholding of removal.”

As for Alphonsus's CAT claim, the BIA found that the IJ “aptly surveyed the country conditions evidence submitted by [Alphonsus].” Agreeing with the IJ's determination that the Bangladeshi government is making an effort to improve religious harmony in the country, the Board accordingly concluded that “the record is insufficient to demonstrate that [Alphonsus] is likely to be tortured by the government or by private actors with the acquiescence of governmental authorities given his status as a Pentecostal.”

II. Jurisdiction

The government argues that the Immigration and Nationality Act's (“INA”) bar to review for criminal aliens, 8 U.S.C. § 1252(a)(2)(C), deprives us of jurisdiction to review Alphonsus's challenges to the BIA's decision, as Alphonsus was ordered removed because of convictions for crimes involving moral turpitude and an aggravated felony. We need not decide whether the bar applies to Alphonsus. See, e.g., Bromfield v. Mukasey, 543 F.3d 1071, 1075–76 & n. 4 (9th Cir.2...