FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GUADALUPE TORRES- No. 11-70532
VALDIVIAS, AKA Guadalupe Torres,
Petitioner, Agency No.
A079-643-573
v.
LORETTA E. LYNCH, Attorney ORDER AND
General, AMENDED
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 11, 2014—San Francisco, California
Filed September 5, 2014
Amended May 8, 2015
Before: Barry G. Silverman and Richard R. Clifton, Circuit
Judges, and Derrick Kahala Watson, District Judge.*
Order;
Opinion by Judge Clifton
*
The Honorable Derrick Kahala Watson, U.S. District Judge for the
District of Hawaii, sitting by designation.
2 TORRES-VALDIVIAS V. LYNCH
SUMMARY**
Immigration
The panel dismissed in part and denied in part Jose
Guadalupe Torres-Valdivias’s petition for review of the
Board of Immigration Appeals’ decision denying his
application for adjustment of status.
The panel amended the original opinion, and denied the
petition for panel rehearing and petition for rehearing en
banc. The panel upheld the Board of Immigration Appeals’
decision not to apply the categorical approach when making
a discretionary determination such as the one here regarding
whether petitioner’s sexual battery conviction triggered the
standard under Matter of Jean, 23 I. & N. Dec. 373 (Att’y
Gen. 2002) (establishing a heightened standard that aliens
convicted of violent or dangerous crimes must satisfy for
discretionary relief). The panel upheld the BIA’s application
of the Matter of Jean standard to adjustment of status
applications, and the BIA’s conclusion that Matter of Jean
applies to applications for adjustment of status in which the
alien was convicted of a violent or dangerous crime. The
panel further held that the ultimate determination of whether
a crime is violent or dangerous under Matter of Jean is
discretionary and therefore unreviewable under 8 U.S.C.
§ 1252(a)(2)(B).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TORRES-VALDIVIAS V. LYNCH 3
COUNSEL
Lamar Peckham, Santa Rosa, California, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, Mary Jane Candaux, Assistant Director, Kiley L.
Kane, Senior Litigation Counsel, and Gary J. Newkirk
(argued), Trial Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C., for Respondent.
Mary Kenney, Washington, D.C., for Amicus Curiae
American Immigration Council.
Zachary Nightingale, Avantika Shastri, and Genna Beier, Van
Der Hout, Brigagliano & Nightingale, LLP, San Francisco,
California, for Amicus Curiae Immigrant Legal Resource
Center.
ORDER
The opinion filed September 5, 2014, is AMENDED as
follows:
1. Section III.C.3, the four-paragraph section that appears on
pages 15 through 17 of the slip opinion, including footnotes
4 and 5, is deleted.
2. The third sentence of the first full paragraph on page 4 of
the slip opinion currently reads as follows:
4 TORRES-VALDIVIAS V. LYNCH
Finally, we uphold the BIA’s extension of the
Matter of Jean standard to adjustment of
status applications under 8 U.S.C. § 1255.
The sentence is amended to read as follows:
Finally, we uphold the BIA’s application of
the Matter of Jean standard to adjustment of
status applications under 8 U.S.C. § 1255.
3. The last sentence of the first paragraph of § III.C on page
11 of the slip opinion currently reads as follows:
We disagree, and we uphold the BIA’s
decision to apply Matter of Jean to cases that
would previously have been governed by
Matter of Arai, provided the alien has been
convicted of a violent or dangerous crime.
The sentence is amended to read as follows:
We disagree, and we uphold the BIA’s
conclusion that Matter of Jean applies to
applications for adjustment of status under
§ 245 in which the alien has been convicted of
a violent or dangerous crime.
4. The third sentence of the first paragraph of § IV on page
17 of the slip opinion currently reads as follows:
Finally, the BIA did not err in extending the
Matter of Jean standard to the context of
adjustment of status applications under
8 U.S.C. § 1255.
TORRES-VALDIVIAS V. LYNCH 5
The sentence is amended to read as follows:
Finally, the BIA did not err in holding that the
Matter of Jean standard applies to the context
of adjustment of status applications under
8 U.S.C. § 1255, a conclusion compelled by
the published decisions in Matter of Jean and
Matter of K–A–.
With these amendments, the panel has voted to deny the
petition for panel rehearing. Judges Silverman and Clifton
have voted to deny the petition for rehearing en banc, and
Judge Watson has so recommended.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The Petition for Rehearing and Petition for Rehearing En
Banc, filed on December 19, 2014, is DENIED.
No further petitions for rehearing following this
amendment may be filed.
6 TORRES-VALDIVIAS V. LYNCH
OPINION
CLIFTON, Circuit Judge:
Petitioner Jose Guadalupe Torres-Valdivias petitions for
review of a Board of Immigration Appeals’ (“BIA”) decision
upholding a final order of removal against him. In deciding
this case, we consider the scope of the Attorney General’s
decision in Matter of Jean, 23 I. & N. Dec. 373 (Att’y Gen.
2002), which established a heightened standard that aliens
convicted of violent or dangerous crimes must satisfy to be
granted discretionary relief from removal.
Torres-Valdivias was placed in removal proceedings,
where he applied for and was denied adjustment of status
under 8 U.S.C. § 1255(i). The BIA held that Torres-
Valdivias’s sexual battery conviction was a violent or
dangerous crime and, on that basis, applied the Matter of Jean
standard to guide the exercise of its discretion. In making the
violent or dangerous crime determination, the BIA considered
the facts underlying Torres-Valdivias’s sexual battery offense
as testified to by Torres-Valdivias at his removal hearing and
as stated in police reports from the time of the offense.
Applying the Matter of Jean standard, the BIA denied Torres-
Valdivias’s adjustment of status application, as a matter of
discretion.
We uphold the BIA’s decision not to apply the categorical
approach in the context of its discretionary decisions, such as
the one at issue here. We also conclude that, where the
correct legal standard is applied, the ultimate determination
of whether a crime was violent or dangerous under Matter of
Jean is discretionary and therefore unreviewable under
8 U.S.C. § 1252(a)(2)(B). Finally, we uphold the BIA’s
TORRES-VALDIVIAS V. LYNCH 7
application of the Matter of Jean standard to adjustment of
status applications under 8 U.S.C. § 1255. Accordingly, we
dismiss in part and deny in part Torres-Valdivias’s petition
for review.
I. Background
Petitioner Jose Guadalupe Torres-Valdivias, a native and
citizen of Mexico, has resided in the United States since
coming in illegally in 1989. He married a U.S. citizen,
through whom he was granted conditional permanent resident
status in 2003. That status was revoked in 2006, however, as
a result of a 2001 conviction for sexual battery in violation of
California Penal Code § 243.4(a). Upon revocation of his
status, Torres-Valdivias was charged with being an alien
illegally present in the United States and therefore removable
under 8 U.S.C. § 1182(a)(6)(A)(i).
In removal proceedings in front of an Immigration Judge
(“IJ”), Torres-Valdivias applied for adjustment of status
under 8 U.S.C. § 1255(i). In adjudicating this application, the
IJ considered the facts underlying Torres-Valdivias’s sexual
battery conviction, including the facts as stated in his
testimony at the removal hearing and as described in the
police reports from the time of the offense. The facts found
by the IJ are not in dispute:
[Torres-Valdivias] first said that when he was
14 or 15, and the victim, his stepsister, was 10
or 11, he touched her on her breasts and
vagina over her clothing once. He repeated
this activity one more time, about a year later.
He insisted he did nothing else. Later, after
being confronted with the police reports in the
8 TORRES-VALDIVIAS V. LYNCH
case, he admitted that he touched her vagina
while the victim was not wearing clothes. He
subsequently admitted to forcing his finger
into her vagina, and also getting on top of her
and simulating sexual intercourse. [Torres-
Valdivias] denied putting his penis into his
stepsister’s vagina and denied engaging in
oral sex with her.
The IJ concluded that Torres-Valdivias’s crime of sexual
battery “was quite clearly violent or dangerous” and applied
the heightened standard for granting discretionary relief from
removal to violent or dangerous criminals established in
Matter of Jean. Under this heightened standard, the IJ
concluded, as a matter of discretion, that Torres-Valdivias’s
adjustment of status application should be denied and
therefore ordered him removed.
Torres-Valdivias appealed to the BIA. On appeal, a three-
member panel of the BIA agreed with the IJ’s application of
the heightened Matter of Jean standard to an adjustment of
status application but remanded for the IJ to further analyze
whether Torres-Valdivias’s offense was a violent or
dangerous crime warranting application of that standard.
On remand, the IJ incorporated his prior decision by
reference and provided more detailed facts and further legal
analysis.1 The IJ again concluded that Torres-Valdivias’s
1
The IJ’s full discussion of the facts on remand was as follows:
A review of the documents in the file reveals the
following about the circumstances of the crime. The
victim in this case is [Torres-Valdivias’s] stepsister.
TORRES-VALDIVIAS V. LYNCH 9
crime of sexual battery constituted a violent or dangerous
crime and denied, as a matter of discretion, his application for
adjustment of status. The IJ again ordered Torres-Valdivias
removed and certified the case back to the BIA. The BIA
adopted and affirmed the IJ’s decision under Matter of
Burbano, 20 I. & N. Dec. 872 (BIA 1994).
Torres-Valdivias timely petitioned this court for review
of the final order of removal entered against him.
She told the police that [Torres-Valdivias] had engaged
in non-consensual sexual intercourse with her at least
five times, beginning when she was about five years of
age and ending when she was fourteen. At the time of
the last assault [Torres-Valdivias] was about nineteen
years old. The victim told the police that [Torres-
Valdivias] “would take her clothes off, as well as his
own, and then sexually assault her. She said the suspect
would place his erect penis into her vagina, kiss her
mouth-to-mouth and place his mouth onto her vagina.”
[Torres-Valdivias] told the police that he had put
his finger in the victim’s vagina when she was nine and
again when she was 12. He said he felt and kissed her
breasts at least three or four times when the victim was
13 or 14 years old. He said he got on top of the victim
and simulated sexual intercourse several times when
she was about 9 years old. He denied having complete
sexual intercourse with the victim and denied forcing
any sexual acts on the victim. [Torres-Valdivias’s]
testimony at his removal hearing was in many respects
the same as his police statement. However, he did
acknowledge at the hearing that he had “force[d] his
finger into her vagina” “[a] little bit.”
10 TORRES-VALDIVIAS V. LYNCH
II. Jurisdiction and Standard of Review
The Immigration and Nationality Act (“INA”) bars this
court from exercising jurisdiction over various discretionary
decisions of the immigration authorities, including “any
judgment regarding the granting of relief under” 8 U.S.C.
§ 1255. 8 U.S.C. § 1252(a)(2)(B)(i). The BIA’s ultimate
discretionary decision to deny Torres-Valdivias adjustment of
status under 8 U.S.C. § 1255(i) is therefore unreviewable.
Pursuant to 8 U.S.C. § 1252(a)(2)(D), however, this court
retains jurisdiction over constitutional questions and
questions of law. We review questions of law de novo.
Annachamy v. Holder, 733 F.3d 254, 258 (9th Cir. 2013).
III. Discussion
Torres-Valdivias’s petition for review raises various
issues framed as questions of law, namely: (1) whether the
BIA erred in not applying the categorical approach in
determining whether Torres-Valdivias’s crime was violent or
dangerous for purposes of applying Matter of Jean;
(2) whether the BIA committed an error of law when it
determined that Torres-Valdivias’s crime was violent or
dangerous; and (3) whether Matter of Jean is applicable in the
context of an adjustment of status application under 8 U.S.C.
§ 1255(i).2 With respect to the first and third issues, we agree
with Torres-Valdivias that they present questions of law but
2
Torres-Valdivias also argues that he was denied due process when the
BIA assigned his appeal for decision by a single member. Contrary to this
argument, however, his appeal was in fact assigned to a three-member
panel of the BIA, composed of BIA members Edward R. Grant, Molly
Kendall-Clark, and Neil P. Miller. This argument is therefore without
merit.
TORRES-VALDIVIAS V. LYNCH 11
disagree with him on the merits. With respect to the second
issue, however, we conclude that it presents a challenge to a
discretionary decision of the BIA and that we therefore lack
jurisdiction to review it.
A. Applicability of the Categorical Approach
The heightened standard of Matter of Jean applies by its
own terms only to aliens convicted of violent or dangerous
crimes. 23 I. & N. Dec. at 383; see also Matter of K–A–, 23
I. & N. Dec. 661, 666 (BIA 2004). Torres-Valdivias argues
that the BIA erred by failing to apply the categorical approach
in determining whether his conviction for sexual battery
triggered the heightened Matter of Jean standard.
We disagree. Adjustment of status under 8 U.S.C. § 1255
is a discretionary form of relief. See, e.g., 8 U.S.C.
§ 1255(i)(2) (“[T]he Attorney General may adjust the status
of the alien to that of an alien lawfully admitted for
permanent residence . . . .” (emphasis added)). In the context
of the BIA’s discretionary decisions, we have noted that “it
is proper [for the BIA] to look to probative evidence outside
the record of conviction in inquiring as to the circumstances
surrounding the commission of [a] crime in order to
determine whether a favorable exercise of discretion is
warranted.” Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir.
2004) (second alteration in original) (quoting Matter of
Mendez-Moralez, 21 I. & N. Dec. 296, 303 n.1 (BIA 1996)).
Indeed, in Matter of Jean itself, the Attorney General looked
at the facts underlying Jean’s conviction, including those
found in a medical examiner’s report—and therefore outside
the records of conviction—to conclude that she was a violent
or dangerous individual who should not be granted the form
12 TORRES-VALDIVIAS V. LYNCH
of discretionary relief she had applied for. See 23 I. & N. Dec.
at 375, 383.
It is not surprising that both our precedent and the
Attorney General’s decision in Matter of Jean counsel against
the application of the categorical approach in this context.
The categorical approach, as laid out in Taylor v. United
States, 495 U.S. 575 (1990), requires a court to look only at
the statutory definition of a prior offense of conviction and
ignore any facts not found in judicially noticeable records of
conviction. This approach applies where “Congress intended
that [a certain statutory] provision be triggered by crimes
having certain specified elements . . . .” Id. at 588. In the
immigration context, this approach therefore generally
applies in determining whether an alien is removable in the
first instance or whether he is statutorily barred from various
forms of relief. See, e.g., Tokatly, 371 F.3d at 621 (noting that
the categorical approach applies “in order to determine
whether an alien’s prior conviction constitutes a basis for
removal under the INA”); Castrijon-Garcia v. Holder,
704 F.3d 1205, 1212 (9th Cir. 2013) (applying the categorical
approach to determine whether an offense constituted a crime
involving moral turpitude, which would render the alien
ineligible for cancellation of removal). Contrasted with
questions of statutory removability and eligibility for relief,
for which Congress intended specific crimes to trigger
removal or statutory bars to relief, the question here is very
different. In light of the discretionary language used in
8 U.S.C. § 1255(i), Congress plainly intended for the
Attorney General (and, by extension, his delegate the BIA) to
exercise his discretion in adjudicating applications for
adjustment of status under any standards that the Attorney
General (or the BIA itself) deems appropriate to establish.
TORRES-VALDIVIAS V. LYNCH 13
In sum, the BIA’s decision not to apply the categorical
approach to guide the exercise of its discretion is consistent
with our case law as well as with the Attorney General’s and
the BIA’s precedential decisions. Accordingly, we uphold the
BIA’s refusal to apply the categorical approach in this case.
B. Violent or Dangerous Crime Determination
Torres-Valdivias next contends that the BIA committed
an error of law in finding that his sexual battery offense
constituted a violent or dangerous crime triggering the
heightened standard of Matter of Jean. Although framed in an
attempt to present a question of law, we conclude that this
argument challenges the BIA’s discretionary decision to view
his crime as a violent or dangerous one. We therefore lack
jurisdiction to decide the merits of this argument.
At its core, this argument relies on distinguishing, on its
facts, Torres-Valdivias’s crime from the crime involved in
Matter of Jean. Whereas Torres-Valdivias accepts that
manslaughter, the crime involved in Matter of Jean,
constitutes a violent or dangerous crime, he denies that sexual
battery rises to the same level. A fact-intensive determination
in which the equities must be weighed in reaching a
conclusion is a prototypical example of a discretionary
decision. Torres-Valdivias’s claim therefore “fall[s] well
within the BIA’s discretionary authority and [is] not subject
to our review.” Mejia v. Gonzales, 499 F.3d 991, 999 (9th
Cir. 2007) (citing 8 U.S.C. § 1252 (a)(2)(B)(i)).
C. Scope of Matter of Jean
The most substantial question raised by Torres-Valdivias
is whether Matter of Jean applies in the context of an
14 TORRES-VALDIVIAS V. LYNCH
adjustment of status application under 8 U.S.C. § 1255(i).
Torres-Valdivias argues that it is not Matter of Jean that
applies in this context, but rather Matter of Arai, 13 I. & N.
Dec. 494 (BIA 1970). We disagree, and we uphold the BIA’s
conclusion that Matter of Jean applies to applications for
adjustment of status under § 245 in which the alien has been
convicted of a violent or dangerous crime.
1. Matter of Jean and Matter of Arai
Matter of Jean involved a refugee’s applications for
adjustment of status under 8 U.S.C. § 1159(a) and for asylum
under 8 U.S.C. § 1158. 23 I. & N. Dec. at 375–76. However,
Jean was statutorily ineligible for adjustment of status due to
a manslaughter conviction, which qualified as a crime
involving moral turpitude rendering Jean inadmissible under
8 U.S.C. § 1182(a)(2)(A)(i)(I). Id. As a predicate to her
adjustment of status application, she was therefore also
applying for a waiver of inadmissibility under 8 U.S.C.
§ 1159(c)—the so-called § 209(c) waiver, named for the
corresponding INA section. Id. at 376. The BIA, balancing
the equities in the exercise of its discretion, granted her the
waiver and adjustment of status. Id. at 378. The Attorney
General then stepped in to reverse the BIA. Id. at 389. In
doing so, the Attorney General articulated the applicable
standard for guiding the BIA’s exercise of discretion as
follows:
It would not be a prudent exercise of the
discretion afforded to me by [§ 1159(c)] to
grant favorable adjustments of status to
violent or dangerous individuals except in
extraordinary circumstances, such as those
involving national security or foreign policy
TORRES-VALDIVIAS V. LYNCH 15
considerations, or cases in which an alien
clearly demonstrates that the denial of status
adjustment would result in exceptional and
extremely unusual hardship.
Id. at 383. In addition, the Attorney General applied the same
standard in denying, as a matter of discretion, Jean’s
application for asylum under § 1158. Id. at 385 (“For the
same reasons articulated in the earlier discussion of the
respondent’s application for adjustment of status, I am highly
disinclined to exercise my discretion—except, again, in
extraordinary circumstances, such as those involving national
security or foreign policy considerations, or cases in which an
alien clearly demonstrates that the denial of relief would
result in exceptional and extremely unusual hardship—on
behalf of dangerous or violent felons seeking asylum.”).
This standard may differ from the Matter of Arai standard
that Torres-Valdivias argues the BIA should have applied.
Matter of Arai, unlike Matter of Jean, involved the same kind
of application involved in this case—namely, an application
for adjustment of status under 8 U.S.C. § 1255. In that
context, the BIA articulated the following standard:
Where adverse factors are present in a given
application, it may be necessary for the
applicant to offset these by a showing of
unusual or even outstanding equities.
Generally, favorable factors such as family
ties, hardship, length of residence in the
United States, etc., will be considered as
countervailing factors meriting favorable
exercise of administrative discretion. In the
absence of adverse factors, adjustment will
16 TORRES-VALDIVIAS V. LYNCH
ordinarily be granted, still as a matter of
discretion.
Matter of Arai, 13 I. & N. Dec. at 496. We proceed by
assuming arguendo that the standards articulated in these two
cases are sufficiently different so as to potentially make a
difference in Torres-Valdivias’s case.
2. Matter of Jean and Adjustment of Status
Applications
Torres-Valdivias argues that Matter of Jean does not
apply to him because, unlike Jean, Torres-Valdivias is not an
inadmissible alien and therefore remains statutorily eligible
for adjustment of status under 8 U.S.C. § 1255(i). As this case
comes to us, the parties agree that his conviction for sexual
battery receives the benefit of the petty offense exception to
inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II). As such,
Torres-Valdivias remained statutorily eligible for adjustment
of status without needing to apply for a waiver of
inadmissibility. Torres-Valdivias thus argues that Matter of
Jean, which established a standard in a case involving a
§ 209(c) waiver of inadmissibility, is inapplicable here.
We disagree. Torres-Valdivias fails to acknowledge that
Matter of Jean applied its standard not only in deciding the
§ 209(c) waiver question, but also in denying asylum under
§ 1158 as a matter of discretion. The scope of Matter of Jean
is therefore not as narrow as Torres-Valdivias argues, as it
plainly applies beyond the context of waivers of
inadmissibility. Of note, the Attorney General has
promulgated the Matter of Jean standard in the broader
context of § 212(h) waivers of inadmissibility—which, unlike
§ 209(c) waivers, are not limited to refugees. See Waiver of
TORRES-VALDIVIAS V. LYNCH 17
Criminal Grounds of Inadmissibility for Immigrants, 67 Fed.
Reg. 78,675 (Dec. 26, 2002) (codified at 8 C.F.R.
§ 1212.7(d)).3
Given the broad language employed by the Attorney
General in Matter of Jean and its focus on his discretion, we
uphold the BIA’s broad reading of Matter of Jean. In Matter
of Jean, the Attorney General effectively overruled the BIA’s
practice of granting discretionary forms of relief to aliens
having been convicted of violent or dangerous crimes.
Whether an alien applying for relief from removal has shaken
a baby to death as in Matter of Jean or has committed sexual
battery of a ten-year-old as in this case, the Attorney General
has determined that these are reprehensible aliens to whom
relief should be denied in all but the most extraordinary
circumstances. Matter of Jean by its own terms is not limited
to the waiver of inadmissibility context, as it also applied its
standard to denying Jean’s application for asylum as a matter
of discretion. This broad reading of Matter of Jean is further
supported by the BIA’s published decision in Matter of K–A–,
23 I. & N. Dec. 661 (BIA 2004), which noted that “[t]he
Attorney General has communicated in unequivocal terms
that he is not inclined to exercise his discretion favorably
with respect to aliens who have been convicted of dangerous
or violent crimes except in the most exceptional
circumstances.” Id. at 666 (citing Matter of Jean, 23 I. & N.
Dec. at 383).
3
Torres-Valdivias’s argument that the application of Matter of Jean
reads 8 C.F.R. § 1212.7(d) into the petty offenses exception to
inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II), is without merit. The BIA
did not apply Matter of Jean to find Torres-Valdivias inadmissible
notwithstanding the statutory petty offense exception; instead, it applied
Matter of Jean to guide the exercise of its ultimate discretion as to whether
to grant Torres-Valdivias adjustment of status under 8 U.S.C. § 1255(i).
18 TORRES-VALDIVIAS V. LYNCH
IV. Conclusion
We uphold the BIA’s decision not to apply the categorical
approach in guiding its discretion to determine whether a
crime is violent or dangerous for purposes of Matter of Jean.
The BIA’s ultimate decision that a crime is in fact violent or
dangerous is a discretionary decision, which this court lacks
jurisdiction to review. Finally, the BIA did not err in holding
that the Matter of Jean standard applies to the context of
adjustment of status applications under 8 U.S.C. § 1255, a
conclusion compelled by the published decisions in Matter of
Jean and Matter of K–A–.
In accordance with our holdings, we dismiss the petition
for review for lack of jurisdiction insofar as it challenges the
BIA’s discretionary determination that Torres-Valdivias’s
sexual battery offense is a violent or dangerous crime. We
further deny the petition for review insofar as it challenges
the BIA’s failure to apply the categorical approach and its
application of the heightened Matter of Jean standard.
PETITION FOR REVIEW DISMISSED in part and
DENIED in part.