Anaya-Ortiz v. Holder

Citation594 F.3d 673
Decision Date25 January 2010
Docket NumberNo. 03-74666.,03-74666.
PartiesVirgilio ANAYA-ORTIZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Gary Finn, Indio, CA, for the petitioner.

Jennifer J. Keeney and Melissa Neiman-Kelting, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-962-367.

Before: MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges, and JAMES K. SINGLETON,* Senior District Judge.

ORDER AND OPINION ORDER

The opinion filed on January 27, 2009, and appearing at 553 F.3d 1266 (9th Cir. 2009) is withdrawn. The superseding opinion and memorandum disposition will be filed concurrently with this order.

Further petitions for rehearing or rehearing en banc may not be filed.

OPINION

IKUTA, Circuit Judge:

Virgilio Anaya-Ortiz (Anaya), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal and ordering him removed to Mexico. We deny the petition.

I

On August 29, 2002, the former Immigration and Naturalization Service (INS) placed Anaya in removal proceedings. The INS charged that Anaya was removable due to his conviction for the crime of possession of a firearm by a felon, a violation of California Penal Code § 12021(a)(1). At Anaya's initial removal hearing, the immigration judge (IJ) agreed with the INS's position and found Anaya removable as charged.

Anaya then sought two forms of relief from removal: cancellation of removal under 8 U.S.C. § 1229b and withholding of removal under 8 U.S.C. § 1231(b)(3)(A).1 The IJ determined that Anaya was ineligible for cancellation of removal because Anaya had been convicted of an aggravated felony, but granted Anaya a continuance to allow him to apply for withholding of removal.

After receiving Anaya's application for withholding of removal, the IJ reconvened a hearing on March 10, 2003 to determine Anaya's eligibility. An alien is ineligible for withholding of removal if "the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." 8 U.S.C. § 1231(b)(3)(B)(ii). At the hearing, Anaya admitted that he had pleaded guilty to being a felon in possession of a firearm on March 21, 2001. The predicate offense to his felon-in-possession conviction was a prior conviction for driving under the influence in violation of section 23153(b) of the California Vehicle Code, for which he was sentenced to one year in jail. According to his testimony before the IJ, Anaya drove into a house while driving drunk. The collision caused part of the house's sheetrock wall to collapse on an elderly woman who lived inside, causing injuries to her shoulder and leg.

On the basis of Anaya's testimony regarding his drunk driving conviction under California Vehicle Code § 23153(b), the IJ held that Anaya had been convicted of a "particularly serious crime" and was therefore ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ also held that Anaya was ineligible for relief under the Convention Against Torture (CAT), 8 C.F.R. § 1208.16-18, and ordered him removed from the United States. Anaya appealed this decision to the BIA. On November 21, 2003, the BIA affirmed the IJ's decision and dismissed Anaya's appeal. Anaya timely filed a petition for review.

On appeal, Anaya argues that he is eligible for withholding of removal on the ground that his drunk-driving conviction does not constitute a conviction of a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B)(ii).2 He asserts that the BIA made a legal error in determining Anaya's drunk-driving conviction was a "particularly serious crime" because it (1) relied on the testimony Anaya gave at his removal hearing, and (2) failed to consider the appropriate factors giving rise to his drunk-driving conviction. We consider each of these alleged errors in turn.

II

Before considering whether the BIA erred in relying on Anaya's testimony at the removal hearing, we must first determine whether we have jurisdiction to review the BIA's alleged error. We do not have jurisdiction to evaluate discretionary decisions by the Attorney General, see 8 U.S.C. § 1252(a)(2)(B)(ii), and therefore lack jurisdiction over the BIA's ultimate determination that Anaya committed a "particularly serious crime" when he drunkenly drove his car into an elderly victim's house and caused part of the wall to collapse on her. See Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.2005) (holding that "when the Attorney General decides that the alien's offense was a `particularly serious crime,' we lack jurisdiction to review such a decision because it is discretionary") (citation omitted). Nevertheless, we retain jurisdiction to review "questions of law raised upon a petition for review." § 1252(a)(2)(D). While "we cannot reweigh evidence to determine if the crime was indeed particularly serious, we can determine whether the BIA applied the correct legal standard in making its determination." Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006), overruled in part on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n. 15 (9th Cir.2008) (en banc). Therefore, we have jurisdiction to review whether the BIA and IJ failed to consider the appropriate factors, Afridi, 442 F.3d at 1220, or relied on improper evidence, see Morales v. Gonzales, 478 F.3d 972, 981 (9th Cir. 2007), in making the "particularly serious crime" determination.

A

Accordingly, we turn to Anaya's argument that § 1231(b)(3)(B)(ii) precluded the IJ and BIA from relying on Anaya's testimony at the removal hearing in making the determination that Anaya had been convicted of a "particularly serious crime." Because this raises a question of statutory interpretation, we "appl[y] the principles of deference described in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778 81 L.Ed.2d 694 (1984)." INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Under Chevron, we first ask "whether the statute is silent or ambiguous with respect to the specific issue before it." Id. (internal quotation marks omitted). If it is, then we determine whether there is "binding agency precedent on-point (either in the form of a regulation or a published BIA case)." Park v. Holder, 572 F.3d 619, 623-24 (9th Cir.2009). We will defer to that precedent so long as it is "reasonable." See Morales, 478 F.3d at 982; see also Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004) (noting that we give deference "to the BIA's interpretation [of the INA] unless that interpretation is contrary to the plain and sensible meaning of the statute"). A "circuit court must apply Chevron deference to an agency's interpretation of a statute regardless of the circuit court's contrary precedent, provided that the court's earlier precedent was an interpretation of a statutory ambiguity." Gonzales v. DHS, 508 F.3d 1227, 1235-36 (citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980-82, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005)). As Brand X explained, "[o]nly a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction." Id. at 982-83, 125 S.Ct. 2688.

We have previously held that the INA is "silent regarding the basis for determining whether a conviction is for a particularly serious crime" under § 1231(b)(3)(B)(ii) and therefore the BIA's interpretation of "what an IJ may refer to in deciding whether a prior offense is a particularly serious crime" is entitled to deference under Chevron and Aguirre-Aguirre. Morales, 478 F.3d at 980, 982. In Morales, we considered the BIA's precedential interpretation of § 1231(b)(3)(B)(ii) in Matter of L-S-, 22 I. & N. Dec. 645, 651 (BIA 1999). Id. at 981-82. We read Matter of L-S- as holding "that the particularly serious crime determination ... may be made by looking only to the record of conviction and sentencing information," and held that the BIA's interpretation was "based on a reasonable—and therefore permissible—construction of the statute." Id. at 982. Therefore, we deferred to the BIA's interpretation, and further held that the record of conviction "consists of a narrow, specified set of documents that includes the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment," and that it "may also include any explicit factual finding by the trial judge to which the defendant assented." Id. (internal quotation marks and citations omitted).

But after our decision in Morales, the BIA clarified its interpretation of what evidence "an IJ may refer to in deciding whether a prior offense is a particularly serious crime." Id. at 980. In its more recent precedential decision, Matter of N-A-M-, the BIA discussed the "particularly serious crime" determination under § 1231(b)(3)(B)(ii) and explained that

once the elements of the offense are examined and found to potentially bring the offense within the ambit of a particularly serious crime, all reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction.

24 I. & N. Dec. 336, 342 (BIA 2007). The BIA explained that Morales had misconstrued its decision in Matter of L-S-. Id. at 344. According to the BIA, Matter of L-S- allowed consideration of the record of conviction and sentencing information, but "did not prohibit the examination of other evidence or indicate that only conviction records and sentencing information could be used." Id. In the...

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