Delgado v. Mukasey

• Decision Date: 08 October 2008
• Docket Number: No. 03-74442.,03-74442.
• Citation: 546 F.3d 1017
• Parties: Hernan Ismael DELGADO, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

546 F.3d 1017

Hernan Ismael DELGADO, Petitioner, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 03-74442.

United States Court of Appeals, Ninth Circuit.

Argued November 18, 2005.

Submitted June 20, 2008.

Filed October 8, 2008.

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.

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 dismiss 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 determine that we are without jurisdiction to review the merits of such decisions. 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, CAT withholding and deferral, cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), and suspension of deportation.

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 a "particularly serious crime" 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).³ 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 this issue of the BIA's authority to determine by adjudication 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 (or his delegate, the BIA) 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 nondesignation 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 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 has issued an extensive published opinion holding that § 1231(b)(3)(B) permits the Attorney General to decide by case-by-case adjudication that particular crimes are "particularly serious" even though they are not aggravated felonies. In re 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), cert. dismissed, 128 S.Ct. 828 (2007). 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. dism., ___ 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 any other crime is 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 In re 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." Pub L. No. 96-212, § 202, 94 Stat. 102 (1980). Under this provision, the BIA determined on a case-by-case basis which crimes were particularly serious, applying the balancing test of Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982).⁶ This test did not take into account whether the crime in issue had been statutorily defined as an "aggravated felony." In time, the BIA denominated some crimes as inherently particularly serious, so that individual determinations with regard to those crimes did not have to be undertaken. See, e.g., Matter of Garcia-Garrocho, 19 I. & N. Dec. 423, 425 (BIA 1986).

The statutory provision barring those convicted of "particularly serious" crimes from eligibility for withholding of removal then was amended three times. The Immigration Act of 1990 (the "...