Miguel-Miguel v. Gonzales

• Decision Date: 29 August 2007
• Docket Number: No. 05-15900.,05-15900.
• Citation: Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007)
• Parties: Diego MIGUEL-MIGUEL, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

500 F.3d 941

Diego MIGUEL-MIGUEL, Petitioner-Appellant, v.Alberto R. GONZALES, Attorney General, Respondent-Appellee.

No. 05-15900.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2007.

Filed August 29, 2007.

Robert B. Jobe(argued) and Fatma Marouf, San Francisco, CA, for the petitioner-appellant.

Daniel G. Knauss, John Boyle and Cynthia M. Parsons(argued), Phoenix, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona; John W. Sedwick, District Judge, Presiding.D.C. No. CV-04-00759-JWS.

Before: PROCTER HUG, JR., PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.

FISHER, Circuit Judge:

This case presents the question of whether the Attorney General may through an adjudicative decision create a strong presumption that a drug trafficking offense resulting in a sentence of less than five years is a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B).Diego Miguel-Miguel, a native of Guatemala, petitioned for withholding of removal based upon his alleged fear that his life or freedom would be threatened if he were returned to Guatemala.The Board of Immigration Appeals(BIA) agreed, declaring Miguel eligible for withholding of removal, but nonetheless ordered him removed because it found that Miguel's 1999 conviction for selling $20 of cocaine was a particularly serious crime.In so finding, the BIA followed the presumption set forth in the Attorney General's opinion in Matter of Y-L-,23 I. & N. Dec. 270(Op. Att'yGen.2002), disapproved of on other grounds byZheng v. Ashcroft,332 F.3d 1186(9th Cir.2003), even though Matter of Y-L- was issued after Miguel had pled guilty to his 1999 offense.We hold that the Attorney General did have the authority to create his presumptive standard in Y-L-, but that the BIA erred by applying it retroactively to Miguel's case.

BACKGROUND

Miguel was born in Guatemala and belongs to the indigenous Cakchiquel group.During the chaos of the country's civil war, Miguel's family was harassed by a guerilla group that believed that Miguel and his family supported the government.The guerillas initially demanded just money, but later threatened to kill Miguel if he did not join them.The guerillas took Miguel to the mountains, where they held him captive and forced him to serve as a lookout.During this time, Miguel witnessed the guerillas kill several people, and in one instance was forced to participate.Miguel says that he was afraid that if he did not assist the guerillas, they would kill him.After six months in captivity, Miguel was able to escape across the border into Mexico.He made his way to the United States, where he eventually applied for and was granted asylum in 1988.

In 1998, Miguel was charged in a California court for selling or transporting cocaine under California Health and Safety Code § 11352.¹The facts of the offense are undisputed.While he was standing on the street with a group of men, an undercover agent approached Miguel and asked him for drugs.Miguel fetched .26 grams of rock cocaine from his associates and sold it to the agent for $20.Miguel pled guilty to the charges and received a sentence of time served (36 days), a fine of $200 and five years probation.

The Immigration & Naturalization Service (INS) placed Miguel in removal proceedings — triggering a series of hearings and appeals as the legal standards applied to Miguel's case evolved over the course of the proceedings.At the outset, Miguel admitted the allegations in the Notice to Appear and applied for withholding of removal.In October 1999, an Immigration Judge (IJ) found that Miguel's cocaine conviction did not preclude withholding of removal because the conviction was not for a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B), as that term had been defined by the BIA in Matter of S-S-,22 I. & N. Dec. 458, 463-65(BIA1999)(en banc).The IJ nonetheless denied withholding of removal because, although Miguel had suffered past persecution, he had failed to provide documentary evidence that he continued to have a well-founded fear of future persecution.The BIA vacated the decision and remanded, however, since a new INS regulation had changed the standard for evaluating changed circumstances.

On remand the IJ in August 2001, again held that changed circumstances precluded withholding of removal.On appeal, the BIA held that the IJ had again applied the wrong standard governing changed circumstances.Applying the proper standard, the Board in March 2003 found that Miguel had demonstrated that his life or freedom would be threatened if he returned to Guatemala.Thus, Miguel was eligible for withholding of removal.Meanwhile, however, the government had moved to remand the case to the IJ because on March 5, 2002, while Miguel's appeal was pending, the Attorney General had issued his opinion in Matter of Y-L-.That opinion substantially altered the standard for determining whether a drug trafficking offense is "particularly serious" under § 1231(b)(3)(B).The BIA granted the motion to remand, sending the case back to the IJ to reconsider his prior determination that Miguel had not committed a particularly serious crime.

Applying the new standard, the IJ found that Miguel had indeed committed a particularly serious crime.The judge found that Miguel had failed to prove that his involvement in the cocaine transaction was "peripheral," and thus under Matter of Y-L-, Miguel's cocaine trafficking conviction was deemed particularly serious.The BIA affirmed without opinion.²

Miguel's habeas corpus petition filed in the United States District Court for the District of Arizona was denied.He then filed a timely appeal in this court.However, on May 11, 2005, the REAL ID Act, Pub.L. No. 109-13,119 Stat. 231, went into effect, transforming Miguel's habeas appeal into a timely petition for review.SeeAlvarez-Barajas v. Gonzales,418 F.3d 1050, 1053(9th Cir.2005).

JURISDICTION

Before we reach the merits of Miguel's arguments, we must address the government's contention that we lack jurisdiction to do so.First, it argues that Miguel is a criminal alien under 8 U.S.C. § 1182(a)(2) and the BIA's determination that he committed a particularly serious crime under § 1231(b)(3)(B) is an unreviewable exercise of discretion.See8 U.S.C. § 1252(a)(2)(B) & (C).Our jurisdiction is not foreclosed, however, insofar as Miguel's petition for review raises issues of law.See8 U.S.C. § 1252(a)(2)(D).We hold that Miguel has done just that.

Miguel does not challenge the BIA's conclusion that his offense was particularly serious under Matter of Y-L-, but instead argues that the Attorney General lacked the authority to issue Matter of Y-L-, or that Y-L- is invalid as applied to this case.These are pure questions of law and therefore we have jurisdiction to review them.SeeAfridi v. Gonzales,442 F.3d 1212, 1218(9th Cir.2006)("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.").

Second, the government argues that we lack jurisdiction because Miguel did not exhaust his argument that the BIA erred in failing to heed Beltran-Zavala v. INS,912 F.2d 1027(9th Cir.1990)(per curiam), which prohibits the BIA from holding that a particular crime is per se particularly serious under § 1231(b)(3)(B).See8 U.S.C. § 1252(d)(1);Barron v. Ashcroft,358 F.3d 674, 677(9th Cir.2004).But Miguel did raise this argument during his penultimate trip to the BIA, when he argued that no remand to the IJ was necessary because Y-L- conflicted with Beltran-Zavala.The BIA implicitly rejected this argument in its March 2003 decision, holding that the case should be remanded for the IJ to make findings under Y-L-.Although Miguel did not re-raise the argument on remand to the IJ, or in his final appeal to the BIA, there is no requirement that immigration petitioners exhaust an argument before the BIA more than once, particularly where as here the BIA has already rejected the argument.SeeLadha v. INS,215 F.3d 889, 903(9th Cir.2000)(holding that exhaustion is satisfied where the BIA "had a full opportunity to resolve [the] controversy or correct its own errors before judicial intervention"(citation and quotation marks omitted, alteration in original)).

Accordingly, we turn to the merits of Miguel's appeal.

DISCUSSION

I

Miguel makes a facial challenge to Matter of Y-L-, relying upon two premises.First, he asserts that Matter of Y-L- created what amounts to a per se rule that turns all drug trafficking offenses into particularly serious crimes under § 1231(b).Second, he contends that the Attorney General was forbidden from promulgating such a per se rule by Ninth Circuit law, the statute's plain text, the Administrative Procedure Act (APA) and the Constitution.We reject Miguel's first premise because Y-L- on its face purports to create only a strong presumption, not a per se rule.We thus need not decide whether the Attorney General can create per se rules under § 1231(b).Instead, we hold only that the Attorney General did not exceed his powers by creating the strong presumption set forth in Y-L-.

A

Consistent with the United States' treaty obligations under the United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223(1968), Congress has provided that an alien may not be removed to a nation in which his or her life or freedom would be threatened on a protected ground unless "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."8 U.S.C. § 1231(b)(3)(B)(ii).The degree to which Congress has defined "particularly serious crime," rather than leaving it for the Attorney General to define, has changed over time.

Before 1990, the Immigration and...