Delgado v. Holder

Decision Date17 April 2009
Docket NumberNo. 03-74442.,03-74442.
PartiesHernan Ismael DELGADO, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Niels W. Frenzen, University of Southern California Gould School of Law, Los Angeles, CA, pro bono counsel for the petitioner.

Jennifer Levings; Norah Ascoli Schwarz, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A78-461-226.

Before WILLIAM C. CANBY, JR., EUGENE E. SILER, JR.,** and MARSHA S. BERZON, Circuit Judges.

ORDER

Delgado's petition for panel rehearing is GRANTED. This court's opinion of October 8, 2008, reported at 546 F.3d 1017, and the dissenting opinion thereto, are hereby WITHDRAWN. A new opinion and new concurring and dissenting opinion are filed contemporaneously with this order. Delgado's petition for en banc rehearing remains pending with regard to all issues except his asylum claim, which is moot. Further petitions for panel or en banc rehearing may be filed with regard to the new majority opinion in accordance with Fed. R.App. P. 35 & 40, and 9th Cir. R. 40-1.

OPINION

CANBY, 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 denied Delgado's applications for asylum, withholding of removal, and withholding under the Convention Against Torture ("CAT withholding"), finding that Delgado's three prior offenses of driving under the influence ("DUI"), which were not aggravated felonies, constituted "particularly serious crimes" that made him ineligible for those forms of relief.1 The BIA also found Delgado ineligible for deferral of removal under the Convention Against Torture ("CAT deferral") because he failed to demonstrate the requisite likelihood of future torture.

We grant in part and deny in part Delgado's petition for review. We defer to the BIA's view that, for purposes of withholding of removal, the applicable statute permits the Attorney General to decide by adjudication that an alien's individual crime is "particularly serious" even though that crime is not classified as an aggravated felony. We also conclude that, for purposes of asylum, the Attorney General may determine by adjudication that a crime is "particularly serious" without first so classifying it by regulation.

We further hold that we are without jurisdiction to review the merits of that "particularly serious crime" determination for purposes of withholding of removal, but conclude that we have jurisdiction to review the determination for purposes of asylum. We conclude that Delgado's DUI convictions do not qualify as "particularly serious" crimes, and we therefore remand Delgado's asylum application to the BIA for further proceedings.

Finally, we hold that substantial evidence supports the decision of the BIA that Delgado failed to meet his burden of proving that he is more likely than not to be tortured if returned to El Salvador.

Background

Delgado, a native and citizen of El Salvador, entered the United States on a nonimmigrant visitor visa over twenty years ago. In July 2001, the Immigration and Naturalization Service ("INS")2 initiated removal proceedings against him because he had overstayed his visa. Delgado conceded removability but sought asylum, withholding of removal, and CAT withholding and deferral.3 The Immigration Judge ("IJ") denied Delgado's request for CAT deferral, finding that Delgado had failed to show that he was more likely than not to be tortured if removed to El Salvador. The IJ also found that each of Delgado's three prior felony DUI convictions constituted "particularly serious crimes" that barred him from eligibility for asylum under 8 U.S.C. § 1158(b)(2)(A)(ii), withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii), and CAT withholding under 8 C.F.R. § 1208.16(d)(2). The BIA affirmed the decision of the IJ in an unpublished per curiam decision signed by one member, and this appeal followed.

Discussion

The BIA did not specify whether it reviewed de novo the IJ's decision, but stated that it agreed with the IJ on the basis of "the record before [it]." The BIA's simple statement of a conclusion, without analysis, suggests that it relied significantly on the IJ's decision. In such situations, we review the decision of the BIA and look to the IJ's oral decision "as a guide to what lay behind the BIA's conclusion." See Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000).

I. The "particularly serious crime" bar

The ultimate issue raised by Delgado is whether the BIA erred in deciding that his DUI convictions constituted "particularly serious crimes" that made him ineligible for withholding of removal and asylum. A major threshold question is whether the applicable statutes permit the agency to determine Delgado's offenses to be "particularly serious" by individual adjudication not limited by certain statutory or regulatory requirements. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review this question of law. Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006).

Although the issue of scope of the Attorney General's authority (and that of the BIA as his delegate) to determine that an alien's crime is "particularly serious" arises with regard to both withholding of removal and asylum, the statutory context differs for each form of relief and raises distinctive legal subissues. We therefore treat the two forms of relief separately.

A. Withholding of Removal

An alien is ineligible for withholding of removal if, among other things, "the Attorney General decides that ... the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States."4 8 U.S.C. § 1231(b)(3)(B). For the purposes of this provision,

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.

Id. The question that naturally arises from this plain text is whether the last sentence is meant to limit the Attorney General to the universe of aggravated felonies described in the preceding sentence or, conversely, whether the last sentence simply preserves the Attorney General's authority to determine a crime to be particularly serious regardless of the penalty or its designation or non-designation as an aggravated felony.

At the time the present appeal was argued, the BIA had not addressed this issue in a precedential opinion, in this case or any other. An unpublished decision by a single BIA member is not entitled by itself to the deference prescribed by 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). Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th Cir.2006). Recently, however, a three-member panel of the BIA issued an extensive published opinion holding that § 1231(b)(3)(B) permits the Attorney General to decide by case-by-case adjudication that individual crimes are "particularly serious" even though they are not aggravated felonies. Matter of N-A-M-, 24 I. & N. Dec. 336, 338-39 (BIA 2007). Such a precedential opinion is entitled to Chevron deference. See Garcia-Quintero, 455 F.3d at 1012. For reasons that we now set forth, we conclude that the BIA's interpretation of § 1231(b)(3)(B) is reasonable, and we accordingly defer to it.5

Two other circuits, which addressed the issue before the BIA weighed in with a precedential opinion, reached opposite results. The Third Circuit, applying a textual and structural approach, concluded that an offense "must be an aggravated felony to be `particularly serious.'" Alaka v. Attorney General of the United States, 456 F.3d 88, 104-05 (3d Cir.2006). The court reasoned that the sentence allowing the Attorney General to determine that a crime is particularly serious "notwithstanding the length of sentence imposed," 8 U.S.C. § 1231(b)(3)(B), "explicitly refers back to the `previous sentence,' and accordingly implies that [the Attorney General's authority] is limited to aggravated felonies." Id. The Seventh Circuit disagreed, concluding that "the absence of a ... provision for nonaggravated-felony crimes does not imply that only aggravated felonies can qualify as `particularly serious' crimes." Ali v. Achim, 468 F.3d 462, 470 (7th Cir.2006), cert. dismissed, ___ U.S. ___, 128 S.Ct. 828, 169 L.Ed.2d 624 (2007).

The BIA found persuasive the Seventh Circuit's view that the designation of certain aggravated felonies as per se "particularly serious" does not preclude the Attorney General from deciding, on a case-by-case basis, that other, nonaggravated felony crimes are also "particularly serious." The BIA's adoption of this position was reasonable. The statute does not limit the definition of "particularly serious" crimes to aggravated felonies. Nor does it expressly require the Attorney General, when considering whether a crime that is not categorically barred is "particularly serious," to consider only aggravated felonies where the sentence imposed was less than five years.

The legislative history of the particularly serious crime bar, referred to by the BIA in N-A-M-, 24 I. & N. Dec. at 339 340, supports this interpretation. In 1980, § 243(h) of the Immigration and Nationality Act was amended to deny withholding to an individual who "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States."...

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