FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERNAN ISMAEL DELGADO, No. 03-74442
Petitioner,
Agency No.
v.
A78-461-226
ERIC H. HOLDER, JR.,* Attorney
ORDER AND
General,
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued November 18, 2005
Submitted June 20, 2008
Pasadena, California
Filed April 17, 2009
Before: William C. Canby, Jr., Eugene E. Siler, Jr.,** and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Canby;
Partial Concurrence and Partial Dissent by Judge Berzon
*Eric H. Holder, Jr. is substituted for his predecessor, Michael B.
Mukasey, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
**The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
4365
DELGADO v. HOLDER 4369
COUNSEL
Niels W. Frenzen, University of Southern California Gould
School of Law, Los Angeles, California, pro bono counsel for
the petitioner.
Jennifer Levings; Norah Ascoli Schwarz, United States
Department of Justice, Civil Division, Washington, D.C., for
the respondent.
4370 DELGADO v. HOLDER
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 WITH-
DRAWN. A new opinion and new concurring and dissenting
opinion are filed contemporaneously with this order. Delga-
do’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 with-
holding under the Convention Against Torture (“CAT with-
holding”), finding that Delgado’s three prior offenses of
driving under the influence (“DUI”), which were not aggra-
vated 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 with-
holding of removal, the applicable statute permits the Attor-
ney General to decide by adjudication that an alien’s
1
All three convictions were for felony DUI. One involved an injury
accident, and two resulted in prison terms of less than five years.
DELGADO v. HOLDER 4371
individual crime is “particularly serious” even though that
crime is not classified as an aggravated felony. We also con-
clude that, for purposes of asylum, the Attorney General may
determine by adjudication that a crime is “particularly seri-
ous” 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 deci-
sion 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 remov-
ability 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 Del-
2
Effective March 1, 2003, the functions of the INS were transferred to
the Department of Homeland Security. See Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). This transfer
has no effect on the review of Delgado’s case.
3
Delgado also sought cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”), and suspen-
sion of deportation, but he has not sought review of the denial of those
forms of relief.
4372 DELGADO v. HOLDER
gado 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 consti-
tuted “particularly serious crimes” that barred him from eligi-
bility 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 fol-
lowed.
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 signifi-
cantly 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 “partic-
ularly serious crimes” that made him ineligible for withhold-
ing 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. Gon-
zales, 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
DELGADO v. HOLDER 4373
regard to both withholding of removal and asylum, the statu-
tory context differs for each form of relief and raises distinc-
tive legal subissues. We therefore treat the two forms of relief
separately.
A. Withholding of Removal
[1] 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 par-
ticularly 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 previ-
ous sentence shall not preclude the Attorney Gen-
eral from determining that, notwithstanding the
length of sentence imposed, an alien has been con-
victed 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 Gen-
eral 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 deter-
mine a crime to be particularly serious regardless of the pen-
4
We have upheld the BIA’s interpretation of this statute to require “only
the factual finding of conviction of a particularly serious crime to support
the determination of danger to the community,” without the necessity of
a separate finding of such danger. Ramirez-Ramos v. INS, 814 F.2d 1394,
1397 (9th Cir. 1987). We therefore confine our analysis here to the ques-
tion of “particularly serious” crimes, and omit any separate consideration
of danger to the community.
4374 DELGADO v. HOLDER
alty or its designation or non-designation as an aggravated
felony.
[2] 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 mem-
ber 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 (1984). Garcia-Quintero v. Gon-
zales, 455 F.3d 1006, 1012-14 (9th Cir. 2006). Recently, how-
ever, 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 Gen-
eral 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
5
In Morales v. Gonzales, we assumed without analysis that the Attorney
General could deem a non-aggravated felony “particularly serious.” 478
F.3d 972, 980-81, 983 (9th Cir. 2007). There, we remanded to the BIA for
a redetermination, based on the correct legal standard, of whether Mora-
les’s non-aggravated felony constituted a “particularly serious crime.” Id.
at 983. Because the statutory interpretation of § 1231(b)(3)(B) is squarely
contested here, we address the issue in depth for the first time.
DELGADO v. HOLDER 4375
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, con-
cluding that “the absence of a . . . provision for
nonaggravated-felony crimes does not imply that only aggra-
vated felonies can qualify as ‘particularly serious’ crimes.”
Ali v. Achim, 468 F.3d 462, 470 (7th Cir. 2006), cert. dism.,
128 S. Ct. 828 (2007).
[3] 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, non-
aggravated 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 Immigra-
tion 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 seri-
ous, applying the balancing test of Matter of Frentescu, 18 I.
& N. Dec. 244 (BIA 1982).6 This test did not take into
6
The BIA looked “to such factors as the nature of the conviction, the
circumstances and underlying facts of the conviction, the type of sentence
imposed, and, most importantly, whether the type and circumstances of
the crime indicate that the alien will be a danger to the community.”
Frentescu, 18 I. & N. Dec. at 247.
4376 DELGADO v. HOLDER
account whether the crime in issue had been statutorily
defined as an “aggravated felony.” In time, the BIA denomi-
nated 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 “particu-
larly serious” crimes from eligibility for withholding of
removal then was amended three times. The Immigration Act
of 1990 (the “1990 Act”) added the following language to
§ 243(h): “an alien who has been convicted of an aggravated
felony shall be considered to have committed a particularly
serious crime.” Pub. L. No. 101-649, 104 Stat. 4978, 5053.
Nothing in the text or history of the 1990 Act suggests that
Congress intended, by making aggravated felonies per se
“particularly serious crimes,” to divest the Attorney General
of his authority to determine, on a case-by-case basis, that
other crimes were “particularly serious,” depending on the
circumstances of their commission, among other things. And,
notwithstanding the 1990 Act, the agency understood that it
could adjudicate a crime to be “particularly serious” on a
case-by-case basis. See Ahmetovic v. INS, 62 F.3d 48, 52 (2d
Cir. 1995) (agreeing with BIA’s conclusion that a crime need
not be an aggravated felony to be adjudicated “particularly
serious”); Matter of B-, 20 I. & N. Dec. 427, 430-31 (BIA
1991) (applying Frentescu factors under the 1990 Act to
determine that the alien had been convicted of a particularly
serious crime).7
7
The long history of case-by-case determination of “particularly seri-
ous” crimes bears more weight, in our view, than the canons of construc-
tion relied upon by the dissent. Canons of statutory construction “are tools
designed to help courts better determine what Congress intended, not to
lead courts to interpret the law contrary to that intent.” Scheidler v. Nat’l
Org for Women, 547 U.S. 9, 23 (2006). See also Chickasaw Nation v.
United States, 534 U.S. 84, 93-95 (2006).
DELGADO v. HOLDER 4377
Congress relaxed the per se category created by the 1990
Act in 1996 with the passage of section 413(f) of the Antiter-
rorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214, 1269 (1996) (“AEDPA”). The
AEDPA amended § 243(h) to allow the Attorney General, “in
[his] discretion,” to override the categorical bar designating
all aggravated felonies “particularly serious” when “necessary
to ensure compliance with the 1967 United Nations Protocol
Relating to the Status of Refugees.” Id.8 The categorical bar
was again relaxed later that year with the passage of the Ille-
gal Immigration Reform and Immigrant Responsibility Act of
1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-602 (“IIRIRA”). IIRIRA enacted the provision at issue
here, which limits application of the categorical bar to aggra-
vated felons sentenced to 5 years’ or more imprisonment. Id.
[4] We recognize that one of the aims of Congress in enact-
ing the post-1990 statutory amendments was probably to
avoid sweeping minor crimes into the categorical aggravated
felony bar. But nothing in the legislative history indicates that
Congress intended, by creating a categorical bar and by later
relaxing that categorical bar, to eliminate the Attorney Gener-
al’s pre-existing discretion to determine that, under the cir-
cumstances presented by an individual case, a crime was
“particularly serious,” whether or not the crime was an aggra-
vated felony. We therefore find the BIA’s interpretation of the
statute reasonable, and conclude that the BIA was entitled to
8
Although the legislative history is sparse, there seems to be no doubt
that one purpose of this enactment was to prevent violations of the Refu-
gee Convention’s non-refoulement provision that might occur because of
a rigid application of the aggravated felony bar. See Matter of Q-T-M-
T-, 21 I. & N. Dec. 639, 648 n.4 (BIA 1996). Such treaty violations were
becoming more likely because, at the time, the list of aggravated felonies
was expanding, and a categorical bar could have included “fairly minor
offenses” in its sweep. Id. (internal quotations and citation omitted); see
also Choeum v. INS, 129 F.3d 29, 42-44 (1st Cir. 1997) (accepting INS’s
argument that 1996 amendments were fueled by expansion of the term
“aggravated felony”).
4378 DELGADO v. HOLDER
determine, by adjudication, that Delgado’s DUI convictions
were particularly serious crimes that barred him from eligibil-
ity for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(B) and CAT withholding under 8 C.F.R.
§ 1208.16(d)(2).
B. Asylum
[5] We now turn to whether the BIA was authorized to
determine that Delgado’s crimes were “particularly serious”
for the purposes of his asylum application.9 Just as in the con-
text of withholding, the relevant statute provides that an alien
is ineligible for asylum if the Attorney General determines
that “the alien, having been convicted of a particularly serious
crime, constitutes a danger to the community.” 8 U.S.C.
§ 1158(b)(2)(A)(ii). For the purposes of this provision, “an
alien who has been convicted by a final judgment of an aggra-
vated felony shall be considered to have been convicted of a
particularly serious crime.” 8 U.S.C. § 1158(b)(2)(B)(i). In
addition, “[t]he Attorney General may designate by regulation
offenses that will be considered to be a [particularly serious]
crime . . . .” 8 U.S.C. § 1158(b)(2)(B)(ii).
[6] There seems little question that this last provision per-
mits the Attorney General to make particular crimes categori-
cally “particularly serious” even though they are not
aggravated felonies. The provision would be wholly redun-
dant if the Attorney General were confined to making only
aggravated felonies “particularly serious” crimes by regula-
tion. The different question posed by this asylum statute is
whether the Attorney General can determine by adjudication
that an individual alien’s crime was “particularly serious,” or
9
The BIA’s precedential decision in N-A-M- did not address
§ 1158(b)(2)(B)(I) because the asylum application in that case was
untimely. We therefore have no precedential decision of the BIA to be
accorded Chevron deference on the precise asylum question presented
here.
DELGADO v. HOLDER 4379
whether he must first by regulation provide that the particular
crime is to be so characterized.
Our discussion of the withholding statute is instructive. Just
as with withholding, the agency initially made the determina-
tion whether an alien’s crime was particularly serious strictly
by adjudication, applying the Frentescu factors. See
Frentescu, 18 I. & N. Dec. at 247. Congress intervened in the
1990 Act only to ensure that certain crimes (aggravated felo-
nies) would be categorically determined to be “particularly
serious,” regardless of the circumstances of their commission.10
Congress then added its permission for the Attorney General
in asylum cases to “designate by regulation offenses that will
be considered to be [particularly serious crimes].” Id. It is
most reasonable to interpret this provision as similarly con-
cerned with the categorical designation of additional crimes
as “particularly serious.” Indeed, it would be difficult to des-
ignate by regulation crimes that “will be considered” to be
particularly serious unless the designation is categorical for
those crimes. The provision simply does not speak to the abil-
ity of the Attorney General to determine in an individual case
that the circumstances of an alien’s commission of a crime
made that crime particularly serious, even though the same
offense committed by other persons in other circumstances
would not necessarily be particularly serious. The statute does
not require the Attorney General to anticipate his adjudication
by a regulation covering each particular crime. See Ali, 468
F.3d at 469.
[7] We therefore conclude that the BIA did not err in pro-
ceeding to determine by adjudication, in the absence of regu-
lation, whether Delgado had committed a “particularly
serious” crime that rendered him ineligible for asylum.
10
As we described in the previous section, Congress relaxed its categori-
cal bar somewhat with regard to withholding of removal. It did not do so
with regard to asylum.
4380 DELGADO v. HOLDER
C. The merits of the BIA’s decision
1. Withholding of Removal
The next question for decision is whether we may review
the merits of the BIA’s determination that Delgado’s DUI
convictions were “particularly serious crimes.” With regard to
withholding of removal, we conclude that we may not.11
[8] We are statutorily precluded from reviewing decisions
of the Attorney General “the authority for which is specified
under this subchapter to be in the discretion of the Attorney
General . . . , other than the granting of relief under section
1158(a) of this title [relating to asylum].” 8 U.S.C.
§ 1252(a)(2)(B)(ii). In Matsuk v. INS, 247 F.3d 999 (9th Cir.
2001), we were presented with a determination by the BIA
that an aggravated felony resulting in a sentence of less than
five years imprisonment was a “particularly serious” crime.
We held that the BIA’s ruling was an unreviewable discre-
tionary decision within the meaning of the statutory bar. See
id. at 1002. In later explaining this ruling, we stated:
[T]he decision at issue in Matsuk — whether to clas-
sify an alien’s past offense as a ‘particularly serious
crime’ under § 1231(b)(3)(B) — is a decision that is
entirely lacking in statutory guidelines. Under the
language of the statute, this decision is left entirely
to the discretion of the Attorney General, with no
governing statutory standards.
11
Other circuits have split on this issue. The Seventh Circuit holds that
it is without jurisdiction to review the merits of the determination of an
alien’s crime to have been “particularly serious,” for purposes of both asy-
lum and withholding of removal, see Ali, 468 F.3d at 470, but the Third
Circuit took a contrary position in a case involving withholding of
removal, Alaka, 456 F.3d at 94-101, as did the Second Circuit with regard
to both asylum and withholding of removal, Nethagani v. Mukasey, 532
F.3d 150, 154 (2d Cir. 2008).
DELGADO v. HOLDER 4381
Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th
Cir. 2003). The language that Matsuk and Spencer found to
“specify” the authority to be discretionary in the Attorney
General, within the meaning of § 1252(a)(2)(B)(ii), was the
statutory provision denying withholding “if the Attorney Gen-
eral decides that . . . an alien has been convicted of a particu-
larly serious crime.”12 8 U.S.C. § 1231(b)(3)(B); see also
Spencer, 345 F.3d at 689-90.
[9] After the decisions in Matsuk and Spencer, Congress
enacted the REAL ID Act of 2005, which provides that noth-
ing in the provision limiting review of the Attorney General’s
discretionary decisions “shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Our
decisions subsequent to the REAL ID Act make clear, how-
ever, that the ultimate determination by the Attorney General
that a crime is “particularly serious” for purposes of withhold-
ing of removal is still an unreviewable discretionary decision.
We so stated in Unuakhaulu v. Gonzales, 416 F.3d 931, 935
(9th Cir. 2005). Then, in Afridi v. Gonzales, 442 F.3d 1212
(9th Cir. 2006), we were presented with a case where the IJ
had denied withholding of removal on the ground of convic-
tion of a “particularly serious crime,” but had failed to engage
in a case-specific application of the Frentescu factors. Id. at
1219. We determined that this failure raised a point of law,
and we remanded for further proceedings. Id. at 1219-21. In
doing so, however, we recognized the limits of the question
of law that we were deciding: “While we cannot reweigh evi-
dence to determine if the crime was indeed particularly seri-
ous, we can determine whether the BIA applied the correct
legal standard in making its determination.” Id. at 1218.13 A
12
Judge Berzon’s concurring and dissenting opinion here offers tren-
chant and, to us, persuasive criticisms of this ruling of Matsuk. As her
opinion recognizes, however, we are bound as a three-judge panel to fol-
low Matsuk.
13
Delgado contends that the IJ committed legal error by applying the bar
of “particularly serious crime” retroactively to his 1992 DUI conviction.
4382 DELGADO v. HOLDER
fair reading of Afridi is that the ultimate determination of the
“particularly serious” nature of a crime for purposes of with-
holding of removal is not subject to our review.
[10] Most recently, we decided in Ramadan v. Gonzales,
479 F.3d 646 (9th Cir. 2007), that in preserving our authority
to review questions of law, the REAL ID Act permitted us to
review mixed questions of law and fact. Id. at 654. Ramadan
made clear, however, that the REAL ID Act did not “restore
[our] jurisdiction over discretionary determinations.” Id. And
it gave as an example of a statutorily-specified discretionary
determination the “Attorney General’s determination . . . that
an aggravated felony is a particularly serious crime,” citing
Matsuk. Id. at 655. It seems clear under our precedent, there-
fore, that the authority to review questions of law or mixed
questions of law and fact under the REAL ID Act did not
include a power to review a determination of the Attorney
General that a crime was “particularly serious” for purposes
of withholding of removal.
2. Asylum
[11] Our circuit precedent is quite different, however, with
regard to eligibility for asylum. In Morales v. Gonzales, 478
F.3d 972 (9th Cir. 2007), the petitioner had been denied both
asylum and withholding of removal on the ground that she
had been convicted of a particularly serious crime. We noted
that § 1252(a)(2(B)(ii) stripped us of jurisdiction to review
any action of the Attorney General “specified” to be in his
discretion, “other than the granting of relief under section
1158(a). . . .” Section 1158(a) governs the application of
Delgado did not present this argument to the BIA, however, and we there-
fore may not consider it. Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th
Cir. 2001). We note as well that the regulation barring relief on the ground
of “particularly serious crimes” was first promulgated in 1990, well before
Delgado pleaded guilty to his first DUI charge. See Kankamalage v. INS,
335 F.3d 858, 860 (9th Cir. 2003). Later statutory bars to the same effect
preceded Delgado’s last two DUI convictions. See id. at 861 n.1.
DELGADO v. HOLDER 4383
aliens for asylum. We therefore held that “[t]he denial of asy-
lum is reviewable because it is specifically exempted from
§ 1252(a)(2)(B)(ii)’s jurisdiction-stripping provisions.” Id. at
980. The only asylum issue presented for review in Morales
was the “particularly serious crime” bar. It is therefore clear
that Morales held that we have jurisdiction to review that
issue, and that ruling governs our present case.14 We proceed,
therefore, to examine whether the IJ erred in determining that
Delgado’s DUI convictions were “particularly serious
crimes.”
As we have already explained, our precedent establishes
the case-by-case determination of a “particularly serious
crime” to be an exercise of discretion. We accordingly review
that decision for an abuse of discretion. See Surita v. INS, 95
F.3d 814, 819 (9th Cir. 1996) (holding that a discretionary
denial of asylum is reviewed for abuse of discretion).
[12] As the dissenting opinion points out, the origin of the
“particularly serious crime” category was the Convention
Relating to the Status of Refugees, July 28, 1951, 10 U.S.T.
6259, 189 U.N.T.S. 150. The Convention prohibits returning
an alien to a country where his “life or freedom would be
threatened” on account of specified grounds, with an excep-
tion for aliens convicted of “a particularly serious crime.”
Convention, art. 33. This requirement and exception were
14
Morales also recognized that we had no jurisdiction to review the
Attorney General’s discretionary decision finding DUI convictions to be
particularly serious crimes for purposes of withholding of removal, as
indicated by our decision in Matsuk and its progeny, discussed earlier in
this opinion. Morales remanded the denial of withholding, however,
because it held that the IJ had committed legal error in the parts of the
record that it considered in determining the “particularly serious crime”
issue. In so ruling, Morales deferred to BIA determinations of the records
that may be considered. The BIA subsequently modified its stance in a
precedential decision, Matter of N—A—M—, 24 I. & N. Dec. at 342. We
have recently deferred to that ruling, permitting the BIA to consider all
reliable information in making a particularly serious crime determination.
Anaya-Ortiz v. Mukasey, 553 F.3d 1266, 1275-76 (9th Cir. 2009).
4384 DELGADO v. HOLDER
written into the Immigration and Nationality Act by the Refu-
gee Act of 1980. See INS v. Cardoza-Fonseca, 480 U.S. 421,
429 (1987). Although the Convention did not define “particu-
larly serious crime,” it did create another exception for aliens
who had committed a “serious nonpolitical crime” outside of
the country of refuge. Convention, art. 1.F.b. As the BIA has
stated, “it should be clear that a ‘particularly serious crime is
not the equivalent of a ‘serious nonpolitical crime.’ Further,
a ‘particularly serious crime’ is more serious than a ‘serious
nonpolitical crime’ . . . .” Frentescu, 18 I. & N. Dec. at 247.
With reference to a “serious nonpolitical crime,” the Hand-
book on Procedures and Criteria for Determining Refugee
Status states that “a ‘serious’ crime must be a capital crime or
a very grave punishable act.” Handbook, ¶ 155, HCR/
IP/4/ENG/REV.1 (Jan. 1992). Frentescu went on to state that
determinations of particularly serious crimes would be made
on a case-by-case basis, with reference to “such factors as the
nature of the conviction, the circumstances and underlying
facts of the conviction, the type of sentence imposed, and,
most importantly, [the] danger to the community.” Frentescu,
18 I. & N. Dec. at 247.
We accord Chevron deference to the BIA’s discussion in
the precedential decision of Frentescu, but that discussion
does not in itself determine whether DUI is a particularly seri-
ous crime. The decision of a single IJ, not relying on a prece-
dential ruling, that DUI is a particularly serious crime does
not command Chevron deference. See Marmolejo-Campos v.
Holder, 2009 WL 530950, at *6 (9th Cir. Mar. 4, 2009) (en
banc).
[13] When the Frentescu factors are applied in the context
of the international origins of the “particularly serious crime”
exception, we conclude that it was an abuse of discretion to
hold that Delgado’s convictions are particularly serious
crimes. Surely they do not exceed the “capital or grave” stan-
dard of “serious” nonpolitical crimes, and Frentescu indicates
that particularly serious crimes should exceed that standard.
DELGADO v. HOLDER 4385
Delgado’s sentences for the three offenses were incarceration
for 12 months, 16 months, and 24 months— substantial but
by no means long sentences under the standards of recent dec-
ades for serious crimes. It is true that driving under the influ-
ence can be dangerous, and at least one of Delgado’s episodes
was. Yet there was no intent to injure. The crime itself is care-
less or even reckless, but requires no intent and is “most
nearly comparable to[ ] crimes that impose strict liability.”
Begay v. United States, 128 S.Ct. 1581, 1586 (2008). Thus,
for other purposes DUI has been held not to be a violent fel-
ony. Id.; Leocal v. Ashcroft, 543 U.S. 1, 4 (2004). It is cer-
tainly a reprehensible crime, especially when repeated as it
has been by Delgado, but Delgado’s offenses had no distin-
guishing characteristics that elevate them to the high levels
inherent in the origins of the “particularly serious crime”
exception. It violates the principles underlying the Convention
and the Refugee Act to hold Delgado’s DUI crimes to be
“particularly serious,” so as to deny him eligibility for relief
from repatriation to a country even if he is able to demon-
strate a “well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1101(a)(42).15
[14] We conclude, therefore, that the IJ abused his discre-
tion in ruling that Delgado’s DUI convictions were particu-
larly serious crimes that rendered him ineligible for asylum.
Because of that ruling of ineligibility, neither the IJ nor the
BIA addressed whether Delgado met the substantive require-
ments for asylum and should be granted relief. We therefore
grant Delgado’s petition for review with regard to his asylum
claim, and remand that matter to the BIA for further appropri-
ate proceedings.
15
In Marmolejo-Campos, 2009 WL 530950, at *9, we deferred to the
BIA’s decision that DUI after revocation of license was a crime of moral
turpitude, but that decision dealt with a ground of removal, not a disquali-
fication from asylum. The framework of the Convention and Refugee Act
therefore did not enter the calculation.
4386 DELGADO v. HOLDER
II. Relief under the Convention Against Torture
[15] We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to
review the BIA’s denial of Delgado’s claim for CAT deferral,
see Morales, 478 F.3d at 980-81, and we review that decision
for substantial evidence. Bellout v. Ashcroft, 363 F.3d 975,
979 (9th Cir. 2004). In order to be eligible for CAT deferral,
Delgado must prove that he is more likely than not to be tor-
tured upon his return to El Salvador. Id.; 8 C.F.R.
§ 1208.17(a).
[16] As the IJ noted, Delgado presented evidence that his
mother, and probably his father, were victims of the rampant
human rights violations that took place in El Salvador in the
late 1970s and early 1980s. However, Delgado has not pro-
vided sufficient evidence that he currently risks being harmed
if he returns to his native country. Country reports indicate
that conditions in El Salvador have improved significantly
since Delgado left the country, and that there is no longer evi-
dence of politically motivated violence, killings, or disappear-
ances in El Salvador. We therefore conclude that the BIA’s
decision that Delgado is not entitled to CAT deferral is sup-
ported by substantial evidence.
Conclusion
The petition for review is granted with regard to Delgado’s
asylum claim, and that matter is remanded to the BIA for fur-
ther appropriate proceedings. With regard to all his other
claims, Delgado’s petition is denied.
PETITION GRANTED in part, DENIED in part, and
REMANDED.
DELGADO v. HOLDER 4387
BERZON, Circuit Judge, concurring in part and dissenting in
part:
The majority opinion is seriously off-track with respect to
its first two holdings, but its final conclusion regarding asy-
lum is correct: We may review the BIA’s asylum “particularly
serious crime” holding on the merits, and, doing so, we can
only conclude that the IJ abused his discretion in finding that
Delgado was ineligible for asylum. As to our jurisdiction over
the merits of the withholding of removal issue, I agree that we
are bound by Ninth Circuit precedent, but believe that prece-
dent to be quite wrong, as well as inconsistent with the law
as it has been developing in other circuits.
To summarize my views:
First and most important, neither of the majority’s two
holdings concerning the “particularly serious crime” provi-
sions of 8 U.S.C. §§ 1158(b)(2)(B) and 1231(b)(3)(B) can be
reconciled with the most basic principles of statutory interpre-
tation. The majority concludes that the “particularly serious
crime” exclusions for asylum and withholding of removal
mean nearly the same thing, substantively and procedurally,
even though the language, structure, purpose, and context of
the two sections are all quite different. That simply cannot be.
For the reasons I discuss below, the only viable construction
of the “particularly serious crime” provision of
§ 1231(b)(3)(B), the withholding version, is that only aggra-
vated felonies can be “particularly serious crime[s].” And the
only viable interpretation of the asylum “particularly serious
crime” provision, § 1158(b)(2)(B), is that the Attorney Gen-
eral can make non-aggravated felonies “particularly serious
crimes” only through regulation, not on a case-by-case basis.
Second, the majority properly relies on Matsuk v. INS, 247
F.3d 999 (9th Cir. 2001), to hold that the BIA’s determination
that a crime is “particularly serious” for withholding purposes
is discretionary and so not reviewable, and so I concur in sec-
4388 DELGADO v. HOLDER
tion C(1) of the majority opinion, with one caveat. See pp.
4413-14, supra. But Matsuk rests on faulty premises, recently
rejected by the Second and Third Circuits in convincing opin-
ions. In my view, Matsuk should be reconsidered by this
Court sitting en banc.
Third, the majority is correct as to its reliance on and appli-
cation of Morales. I therefore also concur in part C(2) of the
majority’s opinion and do not address it further in this concur-
rence.
I. Particularly Serious Crime Exceptions
A. Overview
Congress’s goal when it created the “particularly serious”
crime exception was, in part, to provide a basis for removal
of certain aliens convicted of criminal offenses that conforms
to our international commitments. This purpose resulted in
key differences between the “particularly serious crime” pro-
visions applicable to withholding and those applicable to asy-
lum. The majority’s opinion considers neither the origin of the
“particularly serious crimes” provisions nor the obvious dif-
ferences between them, and so comes to the erroneous conclu-
sion that the two provisions are both essentially identical and
essentially limitless. As a result, the majority allows to stand
the BIA’s procedures for determining whether Delgado’s DUI
convictions were each “particularly serious crimes,” for pur-
poses of both asylum and withholding relief, a conclusion
that, as I shall show, clashes with Congress’s underlying basis
for adopting the “particularly serious crime” exception.
1. The Refugee Convention and Protocol
The original source of the term “particularly serious crime”
is the 1951 Convention Relating to the Status of Refugees, 19
U.S.T 6259, 189 U.N.T.S. 150 (“Convention”). The Conven-
tion prohibits states from “return[ing] an alien to a country
DELGADO v. HOLDER 4389
where his ‘life or freedom would be threatened’ on account of
one of the enumerated reasons.” INS v. Cardoza-Fonseca, 480
U.S. 421, 429 (1987). An exception to this rule permits
removal of an alien who, “having been convicted . . . of a par-
ticularly serious crime, constitutes a danger to the community
of that country.” Convention, art. 33 (2).
Both the duty not to remove an alien to a country where
such persecution is likely and the “particularly serious crime”
exception were adopted by the United States through acces-
sion to the 1967 UN Protocol relating to the Status of Refu-
gees (“Protocol”), 19 U.S.T. 6223, 606 U.N.T.S. 267, which
includes the obligations previously enumerated in the Con-
vention. Both the duty and the exception were incorporated,
in turn, in the Immigration and Nationality Act (“INA”) by
the Refugee Act of 1980. See Cardoza-Fonseca, 480 U.S. at
429; Matter of Frentescu, 18 I. & N. Dec. 244, 246 n.2, (BIA
1982). Thus, “[i]f one thing is clear from the legislative his-
tory of the . . . 1980 Act, it is that one of Congress’ primary
purposes was to bring United States refugee law into confor-
mance with the 1967 United Nations Protocol Relating to the
Status of Refugees.” Cardoza-Fonseca, 480 U.S. at 436.
Consistent with this purpose, the Supreme Court has inter-
preted terms used in these 1980 refugee amendments to the
INA in light of their meaning under the Convention and Pro-
tocol. See id. at 439 nn.22 & 24 (citing UN High Commission
for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status, Ch. II B(2)(a) §§ 37-42 (1979)
(“Handbook”), and 1 A. Grahl-Madsen, The Status of Refu-
gees in International Law 180 (1966)) (interpreting term “ref-
ugee” as used in § 243(h) of the INA by 1980 Act, through
reference to analysis of its meaning under the Protocol)). The
meaning of “particularly serious crime” under the Convention
and Protocol is thus critically important in interpreting the
same term in the INA.
4390 DELGADO v. HOLDER
Taking that approach, how serious is a “particularly serious
crime”? The Convention and Protocol do not provide a defini-
tion, but they do offer a basis for comparison with other
offenses. In Matter of Frentescu, the BIA pointed out that
because the Convention also established an exception to with-
holding of removal for “serious nonpolitical crimes” an alien
has committed outside the country where he has taken refuge,
“it should be clear that a ‘particularly serious crime’ . . . is
more serious than a ‘serious nonpolitical crime.” Id. at 247
(emphasis added); see also 8 U.S.C. § 1231(b)(3)(B)(iii);
Convention art. 33(1)(F) (establishing that an “alien [who]
committed a serious nonpolitical crime outside the United
States before the alien arrived in the United States ” is not eli-
gible for withholding of removal) (emphasis added). In other
words, an offense that is less serious than a “serious nonpolit-
ical crime” cannot be a “particularly serious crime.” The
Handbook, which “provides significant guidance in constru-
ing the Protocol,” Cardoza-Fonseca, 480 U.S. at 439 n.22,
describes a “serious non-political crime” as “a capital crime
or very grave punishable act.” Handbook, ¶ 155 (1992 ed.).
To qualify as a “particularly serious crime” under the Con-
vention and Protocol, then, an offense must be more serious
than just any “very grave punishable act.”1
While such an interpretation of “particularly serious crime”
may seem overly narrow, it is consistent with the basic prem-
ises of the Convention. Conviction for a “particularly serious
crime” permits removal of an alien to a country where it is
probable that he will be deprived of “life or freedom” on
1
Confirming this understanding of the exception’s scope are the specific
examples of “particularly serious crime” offered by a leading commenta-
tor on the Convention. See Grahl-Madsen, Commentary on the Refugee
Convention, 1951, art. 33 cmt. 10 (1997). The examples given are
instances of murder with aggravating circumstances, for which conviction,
in our own legal system, would typically be punishable by death or a life
sentence. See id. (offering as examples of particularly serious crimes
“blowing up . . . a passenger airplane in order to collect life insurance, or
wanton killing in a public place.”).
DELGADO v. HOLDER 4391
account of protected grounds. Convention art. 33(1), (2). The
reason removal under these circumstances is justified is that
the alien has committed a crime so serious that, even if he
remained in his country of refuge, its state would be justified
in imposing grave punishment upon him.
In this case, the BIA determined that Delgado was ineligi-
ble for asylum and withholding of removal because his three
DUI convictions constituted a “particularly serious crime”
under both §§ 1231(b)(3)(B) and 1158(b)(2)(B), relating to
withholding of removal and asylum respectively. Among
these offenses was a conviction for driving under the influ-
ence causing death or bodily injury, which resulted from an
accident where Delgado and his passenger (and possibly,
though the record is unclear, the occupants of the other vehi-
cle) were seriously injured. While I in no way minimize the
seriousness of Delgado’s offenses, I do not see how a DUI —
which, as the majority recognizes, is not an “aggravated felo-
ny” for purposes of our own immigration law, see Maj. Op.
at 4371 — can be a “particularly serious crime” in the sense
that Congress understood the term when it incorporated it into
the INA — at least with respect to withholding of removal,
which, as I explain shortly, is the bedrock protection afforded
aliens in danger of persecution in their home countries on a
protected ground.
2. Asylum and Withholding of Removal
A conviction for a “particularly serious crime” makes an
alien ineligible for asylum, as well as for withholding of
removal. § 1158(b)(2)(B) (asylum); § 1231(b)(3)(B) (with-
holding). However, “Congress has drawn a critical distinction
in its use of the term ‘particularly serious crime’ ” in
§ 1158(b)(2)(B) as compared with the use of the same term in
§ 1231(b)(3)(B), In re L-S-, 22 I. & N. Dec. 645, 652 (BIA
1999), and for good reason.
Regarding eligibility for withholding of removal,
§ 1231(b)(3)(B) states that,
4392 DELGADO v. HOLDER
[A]n alien who has been convicted of an aggravated
felony (or felonies) for which the alien has been sen-
tenced 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 deter-
mining that, notwithstanding the length of sentence
imposed, an alien has been convicted of a particu-
larly serious crime. In the case of eligibility for asy-
lum, § 1158(b)(2)(B) establishes
that,
[A]n alien who has been convicted of an aggravated
felony shall be considered to have been convicted of
a particularly serious crime.
. . . The Attorney General may designate by regula-
tion offenses that will be considered to be a [particu-
larly serious] crime . . .
The obvious differences in the statutory text of these two
subsections suggest three distinctions in meaning.
First, the category of per se “particularly serious crime[s]”
is broader in the asylum context than it is in the case of with-
holding of removal. Section 1158(b)(2)(B) makes all aggra-
vated felonies per se “particularly serious crime[s]” for
asylum purposes, while § 1231(b)(3)(B), pertaining to with-
holding of removal, only makes aggravated felonies “for
which the alien has been sentenced to an aggregated term of
at least five years imprisonment” a per se category of “partic-
ularly serious crime[s].”
Second, with regard to asylum, the statutory structure and
language suggest no express limitation as to which crimes
may be designated as “particularly serious.” Rather, all aggra-
vated felonies are per se “particularly serious,” and other
crimes may be so designated. In contrast, the withholding of
DELGADO v. HOLDER 4393
removal provision confers on the Attorney General the
authority to determine that an offense is a “particularly seri-
ous crime” notwithstanding the length of the sentence
imposed, but does not confer any express authority to desig-
nate non-aggravated felonies as “particularly serious.”
Third, the two subsections define differently how offenses
outside of these per se categories may be determined to con-
stitute particularly serious crimes. The asylum provision states
that “the Attorney General may designate by regulation
offenses that will be considered particularly serious crimes.”
(emphasis added). By contrast, the withholding provision
gives the Attorney General the general authority to “deter-
mine” whether a crime is particularly serious, indicating that
any otherwise permissible method of determination is
allowed.
The majority concludes that these obvious distinctions are
without much practical difference. On the majority’s view, the
only difference between the two “particularly serious crime”
exceptions is that for asylum purposes all aggravated felonies
are per se particularly serious crimes, while for withholding
purposes only aggravated felonies for which the sentence was
longer than five years are automatically particularly serious.
As to the Attorney General’s ultimate authority — to desig-
nate any crime as particularly serious — and methodology —
to designate crimes as particularly serious by regulation or on
a case-by-case basis — the majority sees the two statutes as
identical. Why Congress bothered to word the otherwise par-
allel sections so differently in this regard when it meant the
same thing we are not told.
Taking together the guidance provided by Congress’s
intention to abide by the Protocol and Convention and the
very different statutory language Congress used with regard
to asylum and withholding of removal, I would begin my
interpretation of the statute by recognizing — as the majority
does not — that Congress wrote two different “particularly
4394 DELGADO v. HOLDER
serious crime” provisions because it meant two different
things. Critically, asylum and withholding of removal differ
under the INA in ways other than the differences in their “par-
ticularly serious crime” provisions, and do so in ways con-
nected to the Protocol and the Convention. These other
differences go a long way toward explaining why the “partic-
ularly serious crime” exception is considerably broader sub-
stantively but more restrictive procedurally for asylum than
for withholding of removal.
For an alien to be granted withholding of removal under the
INA, he must show that it is “more likely than not” that he
will be persecuted in the country to which he otherwise would
be removed. INS v. Stevic, 467 U.S. 407, 424 (1984); 8 U.S.C.
§ 1231(b)(3)(A) (prohibiting removal of an alien whose “life
or freedom would be threatened in that country [to which the
alien otherwise would be removed] because of [a protected
ground]”). Withholding of removal thus represents the mini-
mum level of relief required by the Convention and Protocol.
Compare § 1231(b)(3)(A), to Convention, art. 33 (1) (stating
that no Contracting State may “return (‘refouler’) a refugee
. . . to the frontiers of territories where his life or freedom
would be threatened on account of [a protected ground]”).
Accordingly, such relief is mandatory if an alien is eligible.
See 8 U.S.C. § 1231(b)(3)(A)(“[T]he Attorney General may
not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in
that country . . .” (emphasis added)); Stevic, 467 U.S. at 421
n.15.
By contrast, to be eligible for asylum an alien is not
required to show that it is “more likely than not,” id. at 424,
that he will be persecuted in the country to which he would
be removed. Instead, he need only show that he has been per-
secuted on account of a protected ground in the past, or that
he has a “well-founded fear” of persecution in the future. See
8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). To establish such
a well-founded fear, an applicant need only show a one in ten
DELGADO v. HOLDER 4395
chance of persecution. See Cardoza-Fonseca, 480 U.S. at
431. At the same time, the granting of asylum to eligible
aliens is discretionary, not mandatory. See 8 U.S.C. § 1158
(b)(1)(A) (“(T)he Attorney General may grant asylum . . . ”
(emphasis added)). The reason that this discretionary benefit
is consistent with this country’s obligations under the Con-
vention and Protocol, and therefore with Congress’ intention
to “bring United States refugee law into conformance with the
. . . Protocol,” Cardoza-Fonseca, 480 U.S. at 436, is that the
standards for eligibility for asylum are more relaxed than the
Convention and Protocol require. As a result, as Congress
understood, asylum need not conform in all respects with the
international commitments, as long as withholding relief does
so conform.
These substantive differences between asylum and with-
holding of removal under the INA have important implica-
tions for how the “particularly serious crime” exception
applies to each form of relief from removal. Withholding of
removal is the form of relief essential to Congress’s goal of
“conformance with the . . . Protocol.” Id. at 436. That goal can
only be achieved if a “particularly serious crime” for which
an alien is denied eligibility for withholding of removal under
the statute also qualifies as such under the Protocol itself. Not
so with asylum, because asylum relief, as a whole, is not
structured to conform to the Protocol.
This critical substantive distinction between asylum and
withholding of removal suggests some answers to the key
question that the majority, puzzlingly, does not even ask:
Why did Congress in IIRIRA adopt such distinctly different
statutory language to define the same term — “particularly
serious crime” — in § 1231(b)(3)(B), relating to withholding
of removal, and in § 1158 (b)(2)(B), relating to asylum? The
evident reasons are two.
First, with respect to the asylum exception, Congress did
not need to give the Attorney General the authority to “deter-
4396 DELGADO v. HOLDER
mine” on a case-specific basis which offenses constitute “par-
ticularly serious crime[s].” Even for aliens eligible for
asylum, the Attorney General can exercise discretion not to
grant asylum because of the alien’s criminal record, whether
the alien has committed a “particularly serious crime” or not.
The only reason to specify “particularly serious crimes” for
asylum eligibility purposes, consequently, is to provide for
uniformity with regard to categories of crimes. By contrast,
aliens who qualify for withholding of removal are manda-
torily entitled to such relief, see Stevic, 467 U.S. at 421 n.15,
so there could be no case-by-case individualized “determin[a-
tion]” based on criminal history without specific statutory
authorization. E
Second, the difference between the eligibility and discretion
standards applicable to asylum and withholding of removal
also helps explain why Congress made all aggravated felo-
nies, not only those with sentences of five years or more, per
se “particularly serious crime[s]” for asylum purposes and
also why Congress did not restrict “particularly serious
crimes” to aggravated felonies for that purpose. Limitations
on asylum relief do not risk violation of the Protocol, so long
as withholding of removal relief conforming to the Protocol
remains available. See, generally, L-S-, 22 I. & N. Dec. at 652
(stating that “the reason for [Congress’] . . . different
approach” in § 1158(b)(2)(B) and § 1231(b)(3)(B) is that
“Congress understood that in enacting revised section
[§ 1231](b)(3), it was carrying forth the statutory implementa-
tion . . . of our international treaty obligations”). Conse-
quently, there was reason for Congress to take particular care
with regard to withholding of removal, to assure that aliens
who otherwise meet the statutory requirement for relief are
denied this relief only for offenses that are likely to meet the
“particularly serious crime” exception in the Protocol.
The majority turns a blind eye to all of these considerations
— the meaning of the “particularly serious crime” locution in
the original internal documents, the differences between asy-
DELGADO v. HOLDER 4397
lum and withholding relief, and the obvious distinctions
between the asylum and withholding “particularly serious
crimes” exceptions. Not surprisingly, given its out-of-context
approach, the majority’s ultimate conclusions on the “particu-
larly serious crime” issues are wrong as well.
B. 8 U.S.C. § 1231(b)(3)(B) — Withholding of
Removal
The majority concludes that § 1231(b)(3)(B) authorizes the
Attorney General to designate any non-aggravated felony as
a “particularly serious crime” for purposes of eligibility for
withholding of removal.2 Even on its own narrow terms, the
majority’s reasoning in so concluding is inconsistent with a
plain reading of the text, with established canons of statutory
interpretation, and with the history of the provision.
2
The majority views this issue as one of first impression in our circuit.
In so concluding, the majority misreads our decision in Morales as having
“assumed . . . [that] the Attorney General could deem a non-aggravated
felony ‘particularly serious.’ ” Maj. Op. at 4374 n.5. In fact, Morales rec-
ognized that such an interpretation is not in accord with our previous
cases; instead, it “broadens the discretion we have previously determined
that § 1231(b)(3)(B)(ii) gives the Attorney General.” 478 F.3d at 979-80
(citing Afridi v. Gonzales, 442 F.3d 1212, 1217 (9th Cir. 2006);
Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir. 2005); Singh v. Ash-
croft, 351 F.3d 435, 439 (9th Cir. 2003); Matsuk, 247 F.3d at 1002)).
Morales went on to make clear that the question whether the Attorney
General’s discretion is broader than we had previously held it was would
“not be determined in this case.” Id.
Quite arguably, the question is not one that can be properly decided by
a three-judge panel, given the earlier cases construing § 1231(b)(3)(B) as
not encompassing the broad discretion the BIA now claims. See In re
Complaint of Ross Island Sand & Gravel, 226 F.3d 1015, 1018 (9th Cir.
2000) (“[A]bsent a rehearing en banc, we are without authority to overrule
[circuit precedent]”). I nonetheless in this dissent meet the majority on its
own ground, rather than resting on stare decisis.
4398 DELGADO v. HOLDER
1. Statutory Language
Initially, as the Third Circuit held in Alaka v. Atty. Gen. of
the United States, 456 F.3d 88 (3d Cir. 2006), a plain words,
common sense reading of § 1231(b)(3)(B) indicates that Con-
gress did not authorize the Attorney General to designate non-
aggravated felonies as particularly serious crimes. See id. at
104. After specifying that any aggravated felony resulting in
a sentence of five years or more “shall be considered . . . a
particularly serious crime,” § 1231(b)(3)(B) provides that “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.” Quite obviously, the authority conferred — to “deter-
min[e] that, notwithstanding the length of sentence imposed,
an alien has been convicted of a particularly serious crime” —
refers to the limitation imposed in “the previous sentence” —
whether the offense carried an “aggregate term of imprison-
ment of at least five years.” Id. (emphasis added).
This Court has at least three times previously recognized
that this is the natural reading of the statutory text. See Ville-
gas v. Mukasey, 523 F.3d 984, 987 (9th Cir. 2008) (“Crimes
resulting in imprisonment for at least five years are ‘particu-
larly serious’ per se, while the Attorney General can deter-
mine that any aggravated felony, regardless of the sentence
imposed is particularly serious.”); Afridi, 442 F.3d at 1217
(stating that § 1231(b)(3)(B)(ii) provides the Attorney Gen-
eral with “discretion to determine whether an aggravated fel-
ony conviction resulting in a sentence of less then five years
is a particularly serious crime”); Singh v. Ashcroft, 351 F.3d
435, 439 (9th Cir. 2003) (“An aggravated felony that results
in at least a five-year sentence is considered a particularly
serious crime. Moreover, under Section 1231(b)(3)(B)(ii) the
Attorney General may determine that any aggravated felony,
even one that results in a sentence of less than five years,
qualifies as particularly serious.”). That this court has repeat-
edly regarded that understanding of the provision as the
DELGADO v. HOLDER 4399
facially apparent one confirms that it is the ordinary meaning
that a reader takes from it. I submit that the reason these cases
did not saying anything more on the matter is that there is
nothing more to say, once one reads the statute.
The majority, however, regards our earlier cases as not hav-
ing adequately addressed the possibility that non-aggravated
felonies are “particularly serious crimes,” and goes on to
adopt the reasoning of the Seventh Circuit’s decision in Ali v.
Achim, 468 F.3d 462 (7th Cir. 2006), cert. granted, 128 S. Ct.
29, cert. dismissed, 128 S. Ct. 828 (2007). Ali’s interpretation,
later adopted by the BIA in In re N-A-M-, 24 I. & N. Dec. 336
(BIA 2007), relies on what the statute doesn’t say, rather than
on what it does, asserting that because Ҥ 1231 does not state
a general rule that only aggravated felonies can be considered
‘particularly serious’ crimes,” § 1231(b)(3)(B) “creates no
presumption that the Attorney General may not exercise dis-
cretion on a case-by-case basis to decide that other
nonaggravated-felony crimes are also ‘particularly serious.’ ”
468 F.3d at 470. Ali — and the majority’s — reading of
§ 1231(b)(3)(B) runs counter to basic principles of statutory
construction.
First, the Ali/N-A-M- interpretation renders the sentence
that begins “the previous sentence” entirely superfluous. If
Congress’s (unstated) understanding was that the Attorney
General could designate any offense as a particularly serious
crime, then why would Congress need to say anything to
negate the contrary implication of the “previous sentence”?
And once Congress did choose to clarify that some discretion
remained to the Attorney General, why would it limit that
clarification to extending this authority “notwithstanding the
length of a sentence,” if it meant to allow unlimited discre-
tion? We simply don’t read statutes as throwing around loose,
meaningless language for no discernible reason. See United
States v. Novak, 476 F.3d 1041, 1048 (9th Cir. 2007) (stating
that courts should “avoid whenever possible statutory inter-
4400 DELGADO v. HOLDER
pretations that result in superfluous language”). Yet, that is
what the majority, relying on Ali and N-A-M-, proposes.
The majority’s interpretation of §1231(b)(3)(B) also con-
flicts with another basic interpretive rule, “expressio unius est
exclusio alterius,” which specifies that the inclusion of one
item ordinarily excludes similar items that could have been,
but were not, mentioned. See Barnhart v. Peabody Coal Co.,
537 U.S. 149, 168 (2003). Section 1231(b)(3)(B) specifically
permits the Attorney General to designate aggravated felonies
resulting in prison terms of less than five years as “particu-
larly serious crime[s].” “[W]hen the items expressed are
members of an associated group . . . the inference [is] that
items not mentioned were excluded by deliberate choice.” Id.
(internal quotation marks omitted). Whether we define the
“associated group” here as “crimes,” “felonies” or “aggra-
vated felonies,” the sole members of the group named in
§ 1231(b)(3)(B) are convictions for aggravated felonies:
those carrying sentences of more than five years, and those
carrying sentences of less than five years. The fact that non-
aggravated felonies were not mentioned at all necessarily sug-
gests that Congress did not intend to include them as “particu-
larly serious crime[s]” for purposes of withholding of
removal.
Ali suggests that the canon does not apply in this case
because Ҥ 1231 does not state a general rule that only aggra-
vated felonies can be considered ‘particularly serious.’ ” 468
F.3d at 470. But this rejoinder turns the canon of construction
backwards. The canon looks to what a statute includes
(“expressio unius”), to determine what it does not (“exclusio
alterius”), not vice versa.
Moreover, and critically, the majority’s interpretation fails
to give effect to the distinctions in statutory language between
§ 1231(b)(3)(B) and § 1158(b)(2)(B). The latter states, in
§ 1158(b)(2)(B)(i), that any “[c]onviction of an aggravated
felony,” is a particularly serious crime, but then adds, in
DELGADO v. HOLDER 4401
§ 1158(b)(2)(B)(ii), that “[t]he Attorney General may desig-
nate by regulation offenses that will be considered” a particu-
larly serious crime, without any mention of “the length of the
sentence imposed.” The majority nonetheless reads the
authority accorded the Attorney General under the two quite
different “particularly serious crime” provisions as identically
broad. “[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” Tang
v. Reno, 77 F.3d 1194, 1197 (9th Cir. 1996).
To make matters worse, the majority’s interpretation of
§ 1231(b)(3)(B)(ii) is also inconsistent with the rest of the
subsection. As I explained earlier, the subsection also pro-
vides that an “alien [who] committed a serious nonpolitical
crime outside the United States before the alien arrived in the
United States” is ineligible for withholding of removal.
§ 1231(b)(3)(B)(iii) (emphasis added). “[W]hat constitutes a
‘serious nonpolitical crime’ is not susceptible of rigid defini-
tion.” INS v. Aguirre-Aguirre, 526 U.S. 415, 429 (U.S. 1999)
(quoting Deportation Proceedings for Doherty, 13 Op. Off.
Legal Counsel 1, 23 (1989)). Still, the offenses that the BIA
has considered “serious nonpolitical crimes,” typically fall
well within the current definition of aggravated felony. Com-
pare, e.g., id. at 420-21 (battery, and destruction of public and
private property); Kenyeres v. Ashcroft, 538 U.S. 1301, 1306
(2003) (money-laundering for organized crime); to 8 U.S.C.
§ 1101(a)(43)(D) (defining “aggravated felony” as including
money laundering); § 1101(a)(43)(F) (defining “aggravated
felony” as including crimes of violence against persons or
physical property). Yet, “a ‘particularly serious crime’ . . . is
more serious than a ‘serious nonpolitical crime,’ ” Frentescu,
18 I. & N. Dec. at 247 (emphasis added). So, unless the stat-
ute is hopelessly internally inconsistent, offenses less serious
than aggravated felonies cannot be “particularly serious
crime[s]”. See Padash v. INS, 358 F.3d 1161, 1170-71 (9th
Cir. 2004) (“We must make every effort not to interpret the
4402 DELGADO v. HOLDER
provision at issue in a manner that renders other provisions of
the same statute inconsistent . . . .” (internal quotation marks
and brackets omitted)).
The short of the matter is that the majority’s reading of
§ 1231(b)(3)(B)(ii), like BIA’s reading in N-A-M-, clashes
with one principle of statutory interpretation after another.
Applying those principles, there is nothing ambiguous about
the withholding exception for “particularly serious crimes.”
And because the application of a myriad of “the traditional
tools of statutory interpretation” to § 1231(b)(3)(B) shows
that “the intent of Congress” — that non-aggravated felonies
cannot qualify as “particularly serious crimes” for purposes of
withholding of removal — is clear from the face of the stat-
ute, Sloan v. West, 140 F.3d 1255, 1261 (9th Cir. 1998), we
need not, contrary’s to the majority’s assertion, extend Chev-
ron deference to the BIA’s position in N-A-M- on this issue.
See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n.9
(1984); see also Bell v. Reno, 218 F.3d 86, 94 (2d Cir. 2000)
(“An agency’s interpretation of a statutory provision is not
reasonable when it ignores an established rule of statutory
construction set forth by the Supreme Court.”).
The BIA’s opinion in N-A-M- does not warrant Chevron
deference for the additional reason that the Board itself did
not consider the opinion to reflect its reasonable interpretation
of an ambiguous statute. Rather, the Board concluded that its
position was compelled by a “plain reading of the Act.” See
N-A-M-, 24 I. & N. at 338. Because the Board was not
attempting to fill a gap left by Congress, it was not acting pur-
suant to an agency’s general authority to resolve statutory
ambiguities, and its decision is therefore not entitled to defer-
ence. See Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier
Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006)
(“[D]eference to an agency’s interpretation of a statute is not
appropriate when the agency wrongly believes that interpreta-
tion is compelled by Congress.”) (internal quotations marks
and citations omitted).
DELGADO v. HOLDER 4403
2. Legislative History
On my understanding of the withholding exception for
“particularly serious crime[s],” the analysis should stop with
the words of the statute, read common-sensically, in context,
and in light of established principles of statutory interpreta-
tion. See Cardoza-Fonseca, 480 U.S. at 452-53 (Scalia, J.,
concurring) (“Where the language of [a] law[ ] is clear, we are
not free to replace it with an unenacted legislative intent;” nor
is an “exhaustive analys[is]” of a statute’s legislative history
appropriate “where the language of the enactment at issue is
clear.”); see also United States v. Ron Pair Enters., Inc., 489
U.S. 235, 240-41 (“[A]s long as the statutory scheme is coher-
ent and consistent, there generally is no need for a court to
inquire beyond the plain language of the statute.”). The
majority and N-A-M- nonetheless insist on reading the statute
through the prism of its history, rather than on its face — and
doing so, get the message of that history dead wrong.
As the majority accurately recounts, the “particularly seri-
ous crimes” concept first appeared in the INA in 1980, in a
provision denying withholding of removal to an alien 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, § 200, 94 Stat. 102
(1980). The majority does not recognize, however, that the
original “particularly serious crime” concept was adopted
from the Refugee Convention and Protocol’s non-refoulement
provision, not created out of whole cloth by Congress. As
such, the concept was intended, as its words suggest, as a
quite narrow exception to the responsibility not to send aliens
back to countries where they are likely to be persecuted on
protected grounds, for crimes not only “serious,” but “particu-
larly serious.”
The changes to § 243(a) here relevant all furthered Con-
gress’s intent to assure compliance with the Refugee Conven-
tion and Protocol. First, in the Immigration Act of 1990
4404 DELGADO v. HOLDER
(“1990 Act”), soon after the first appearance of the “aggra-
vated felony” concept in the INA in 1988, See Pub. L. 100-
690, § 7342, 102 Stat. 4181 (1988), Congress created a cate-
gorical bar to withholding of removal for aliens convicted of
aggravated felonies by designating all such offenses per se
“particularly serious crimes.” See Pub. L. No. 101-649, 104
Stat. 4978, 5053. At the time, the crimes designated as “ag-
gravated felonies” were indeed quite serious, so designating
them as per se “particularly serious” was a way of assuring
uniformity and efficiency. See Pub. L. No. 100-690, § 7342,
102 Stat. 4181, 4469-4470 (1988 version of the INA)
(“aggravated felony” defined as: “murder; any drug traffick-
ing crime, . . . or any illicit trafficking in any firearms or
destructive devices”); also Pub. L. No. 101-649, § 501, 104
Stat. 4978, 5048 (Immigration Act of 1990) (money launder-
ing and crimes of violence for which the term of imprison-
ment is at least five years added to list of “aggravated
felon[ies]”).
Next, in 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act (AEDPA), which “expanded the
definition of aggravated felony” to include a much greater
range of offenses, thus broadening the “particularly serious
crime” exception’s reach. See Choeum v. INS, 129 F.3d 29, 42
(1st Cir. 1997). Because AEDPA’s expanded definition of
aggravated felony “include[d] crimes that might be consid-
ered less serious than those the Protocol intended to cover in
its exclusion clause,” Congress became concerned that appli-
cation of the categorical bar would result in removals that did
not conform to the Protocol. Id. As Senator Kennedy
explained,
[T]o declare an aggravated felon anyone convicted
of an offense involving imprisonment of one year,
. . . means that people with fairly minor offenses
would be ineligible to seek withholding of deporta-
tion, [which] in many instances may violate the Ref-
ugee Convention.
DELGADO v. HOLDER 4405
Mark-up on S. 1664 before the Senate Committee on the Judi-
ciary, 104th Cong., 2d Sess. 60-61 (1996). To address this
concern, Congress included in AEDPA a provision allowing
the Attorney General to override the 1990 Act’s categorical
designation of “aggravated felonies” as “particularly serious
crimes” if withholding of removal was “necessary to ensure
compliance with the 1967 United Nations Protocol Relating
to the Status of Refugees.” 8 U.S.C. § 1253(h) (current ver-
sion at § 1231(b) (1996)); Choeum, 129 F.3d at 43 (1st Cir.
1997).
The final step in the evolution of the withholding of
removal “particularly serious crime” exception was the enact-
ment, later in 1996, of IIRIRA, which gave us the current stat-
utory text of the INA and yet again expanded significantly the
“aggravated felony” concept. See Pub. L. No. 104-208, Div.
C, § 321, 110 Stat. 3009-546, 3009-627-3009-628. In particu-
lar, for several offenses Congress reduced the minimum pen-
alty necessary for a conviction to qualify as an aggravated
felony from five years to one, see § 321(a)(3), (10), (11). This
vast broadening of the “aggravated felony” category of crimes
had obvious implications for the usefulness of that category
as a stand-in for the “particularly serious crime” withholding
exception. It was in that context that Congress, in IIRIRA,
removed the 1990 Act’s broad categorical bar for all aggra-
vated felonies as well as AEDPA’s override provision, substi-
tuting for both (1) the narrower categorical bar for aggravated
felonies “for which the alien has been sentenced to an aggre-
gate term of imprisonment of at least 5 years,” and (2) the
provision for “the Attorney General . . . [to] determin[e] that,
notwithstanding the length of sentence imposed, [the] alien
has been convicted of a particularly serious crime.” The cur-
rent statutory text thus is most sensibly understood as still
another attempt to implement the “particularly serious crime”
exception in a manner that conforms with the Protocol, this
time accounting for IIRIRA’s further broadening of the aggra-
vated felony category by both limiting the per se category to
4406 DELGADO v. HOLDER
a subset of aggravated felonies and limiting “particularly seri-
ous crimes” to only aggravated felonies.
Nothing in this history suggests a Congressional intent in
1996 to allow the Attorney General to designate as “particu-
larly serious crimes” offenses so minor that Congress did not
regard them as within the now broad category of “aggravated
felonies” used for other INA and immigration law purposes.3
Put another way, nothing in the sequence of enactments end-
ing in the current version of § 1231(b)(3)(B) indicates that
Congress intended to allow an alien to be removed to a coun-
try where he probably will be persecuted on account of his
race, religion, nationality, membership in a particular social
group, or political opinion, because he committed a crime too
minor to be designated an “aggravated felony” under the INA
— too minor, for example, to disqualify him from other forms
of relief or to require that he be detained pending removal
proceedings. Instead, the current version of the statute recog-
nizes that even among the crimes designated as “aggravated
felonies,” many — perhaps most — now would not meet the
“particularly serious” exception of the Protocol and Conven-
tion, and so leaves the Attorney General the task of sorting
out, on a case-by-case basis, which of the expanded class of
“aggravated felonies” are “particularly serious.”
In sum, the statutory text of § 1231(b)(3)(B), interpreted in
context and in light of established canons of statutory con-
struction, can only be read — and we have always read it —
as providing the Attorney General the authority to determine
that aggravated felonies with sentences of less than a year, but
not other crimes, are “particularly serious” for the purposes of
3
Among other things, the “aggravated felon[ ]” designation requires
mandatory detention, 8 U.S.C. § 1226(c)(1)(B), permits expedited removal
proceedings, 8 U.S.C. § 1228, and may disqualify the alien from benefits
such as cancellation of removal for permanent residents, 8 U.S.C.
§ 1229b(a), temporary protected status, 8 U.S.C. § 1254a(c)(2), and pre-
and post-hearing voluntary departure, 8 U.S.C. §§ 1229c(a)(1) & (b)(1).
DELGADO v. HOLDER 4407
eligibility for withholding of removal. Nothing in the legisla-
tive history indicates otherwise. I therefore cannot agree with
the majority’s conclusion that the Attorney General has free
rein to call any crime “particularly serious” and so send an
alien to a country where he is likely to be persecuted.
C. 8 U.S.C. § 1158 (b)(2)(B)(ii) — Asylum
Nor can I agree with the majority’s reading of the quite dif-
ferent asylum provision concerning “particularly serious
crimes.” Adopting, once again, the reasoning of the Seventh
Circuit in Ali, the majority concludes that the IJ was autho-
rized to decide on a case-specific basis that Delgado’s non-
aggravated felony convictions also qualified as particularly
serious crimes, rendering him ineligible for asylum under
§ 1158(b)(2)(B). See 468 F.3d at 469 (stating that § 1158
(b)(2)(B) does not require the Attorney General to anticipate
his adjudication by regulation covering every single crime.).4
And this interpretation is, once again, in conflict with the
plain words, common sense reading of the statute.
Congress explicitly stated that the authority granted in 8
U.S.C. § 1158(b)(2)(B)(ii) to “designate . . . offenses that will
be considered to be a [particularly serious crime]” is an
authority that may be exercised “by regulation.” The majority
maintains that the “by regulation” language pertains only to
categorical exceptions, and that the BIA can also proceed by
case-by-case adjudication.
4
As to this issue, neither the BIA’s decision in this case, nor its underly-
ing opinion reviewed in Ali are published opinions. No published BIA
opinion discusses whether § 1158(b)(2)(B) permits the determination of
whether an offense is a “particularly serious crime” on a case-by-case
basis, rather than “by regulation.” We therefore do not owe the BIA Chev-
ron deference on this point. See Garcia-Quintero v. Gonzales, 455 F.3d
1006, 1012-14 (holding that unpublished BIA decisions are not entitled to
Chevron deference).
4408 DELGADO v. HOLDER
The first problem with this reading of the statute is that it
is not what the statute says. The “by regulation” sentence is
general; it is not limited to categorical distinctions. And the
statute does not provide for any other way of determining that
offenses are “particularly serious” for asylum purposes.
Moreover, the majority’s implication from silence does not
explain why Congress included the “by regulation” sentence.
Indeed, under the majority’s interpretation, the sentence is —
once more — entirely surplusage. “Absent express congres-
sional direction to the contrary, agencies are free to choose
. . . between rule making and adjudication.” Davis v. EPA,
348 F.3d 772, 785 (9th Cir. 2003) (parentheses and citations
omitted). The INA provides the Attorney General broad
power to “establish such regulations . . . as he deems neces-
sary for carrying out his authority under the provisions of this
chapter.” 8 U.S.C. § 1103(a) (current § 1103(g)(2); United
States v. Chen, 2 F.3d 330, 333 (9th Cir. 1993)). So there was
no need to include the “by regulation” sentence in
§ 1158(b)(2)(B) to authorize the BIA to issue regulations des-
ignating categories of offenses as “particularly serious
crime[s].” That authority existed already.
Similar language concerning the promulgation of regula-
tions as to particular issues has been understood to require
regulations as the mode of agency decisionmaking as to that
issue. See Davis, 348 F.3d at 785 (citing 42 U.S.C.
§ 7545(a)’s directive that “[t]he Administrator may by regula-
tion designate any fuel . . . [for registration pursuant to
§ 7545(b)])” as proof that “Congress knew how to impose
rulemaking requirements under the Clear Air Act when it
wanted to do so”) (emphasis added)). Moreover, Congress
could have specified that the Attorney General was authorized
to make “particularly serious crime” determinations via adju-
dication, via regulation, or via both methods. As it chose to
only specify “by regulation,” § 1158(b)(2)(B), the necessary
— and non-superfluous — implication is that it chose to
exclude the other options. See Barnhart, 537 U.S. at 168.
DELGADO v. HOLDER 4409
This implication is strengthened by the consideration that
no similar “by regulation” sentence appears in the withhold-
ing of removal section governing “particularly serious
crimes,” a difference that should be accorded some signifi-
cance. See City of Chicago v. Envtl. Def. Fund, 511 U.S. 328,
338 (1994) (“It is generally presumed that Congress acts
intentionally and purposely when it includes particular lan-
guage in one section of a statute but omits it in another”)
(internal quotation marks omitted) (citing Keene Corp. v.
United States, 508 U.S. 200, 208 (1993)). Given the general,
broad statutory authorization Congress gave the Attorney
General to issue regulations, we could not reasonably surmise
that the Attorney General is precluded from issuing regula-
tions to implement the withholding of removal “particularly
serious crime” provisions by specifying categories of offenses
as particularly serious. The only sensible implication from
this difference between the two “particularly serious crime”
provisions, consequently, is that the Attorney General can, but
need not, proceed by regulation rather than case-by-case adju-
dication with respect to withholding, but must proceed by reg-
ulation with regard to the exception to eligibility for asylum.
This understanding of the textual differences makes perfect
sense in light of other differences between asylum and with-
holding of removal. The Attorney General retains discretion
to decide on a case-by-case basis whether to grant asylum to
eligible applicants. Cardoza-Fonseca, 480 U.S. at 429, n.6.
As an individualized determination occurs down-the-line in
the asylum process, there was no reason to provide for such
a case-by-case process at the eligibility stage. In contrast,
withholding of removal is mandatory for eligible applicants,
so any individualized determination must occur at the eligibil-
ity stage. There is also less need for case-by-case determina-
tion with regard to asylum, because a denial of asylum to an
otherwise eligible alien does not directly raise the risk of non-
compliance with the Refugee Convention. Cf. L-S-, 22 I. & N.
Dec. at 652. Recognizing these differing concerns at issue in
the two contexts results in an interpretation of the procedural
4410 DELGADO v. HOLDER
requirements of § 1158(b)(2)(B) more faithful to Congress’
purposes than the one-size-fits-all approach adopted by the
majority. Cf. L-S-, 22 I. & N. Dec. at 652 (interpreting
§ 1158(b)(2)(B), and § 1231(b)(2)(B) in same way “annul[s]
the deliberate distinction made by Congress in the IIRIRA.”).
Further, on my reading, Congress has already designated
for withholding purposes the universe of offenses that can be
designated as “particularly serious crimes” — aggravated fel-
onies, as defined in the INA. See 8 U.S.C. § 1101(a)(43). As
the authority accorded the Attorney General with regard to
asylum is not so circumscribed, Congress could well have
preferred a formal process, subject to public comment and to
uniform application.
Finally, making such designations “by regulation” would
not require the Attorney General to “sift through each state’s
[penal] code” to “identify through regulation every single
‘particularly serious’ [crime].” Ali, 468 F.3d at 469, cited in
the majority opinion at 4379. As the majority recognizes, the
Attorney General could issue regulations designating specific
categories of non-aggravated felonies as particularly serious
crimes, just as Congress already has done by statute for aggra-
vated felonies. See, e.g., 8 U.S.C. § 1101(a)(43) (designating
certain categories of crimes as aggravated felonies). Alterna-
tively, just as the BIA already does through adjudication in
the case of aggravated felonies, the Attorney General could
specify, through rule-making, those factors which would ren-
der a non-aggravated felony conviction a particularly serious
crime for this purpose. See Miguel-Miguel v. Gonzales, 500
F.3d 941, 949 (9th Cir. 2007) (holding that the Attorney Gen-
eral has the authority to “create a strong presumption that
drug trafficking offenses are particularly serious crimes”).
In sum, Congress chose to require designation of non-
aggravated felonies as “particularly serious crimes” for asy-
lum purposes by formal promulgation of regulations, while
allowing case-by-case designation of “particularly serious
DELGADO v. HOLDER 4411
crimes” for withholding purposes, but only from among
aggravated felonies. Any other reading of the two statutes
once again makes sameness out of difference and supposes
that Congress indulged in redundancy and indirection.
II. Jurisdiction
The majority accepts that we may decide the issues I have
already discussed, presumably because they are purely legal
issues. See 8 U.S.C. § 1252(a)(2)(D). But the majority con-
cludes that we lack jurisdiction to review the merits of the
BIA’s ultimate determination that Delgado’s DUI convictions
were “particularly serious crimes” under § 1231(b)(3)(B).
This conclusion is premised on the view that this determina-
tion falls under § 1252(a)(2)(B)(ii)’s preclusion of judicial
review of “decision[s] . . . the authority for which is specified
under this subsection to be in the discretion of the Attorney
General.”
In Matsuk v. INS, we held that the authority granted by 8
U.S.C. § 1231(b)(3)(B) to deny withholding of removal of an
alien “if the Attorney General decides that . . . [the] alien has
been convicted of a particularly serious crime” is discretion-
ary within the meaning of § 1252(a)(2)(B)(ii), and therefore
that the BIA’s denial of withholding on this basis is not
reviewable by this Court. See 247 F.3d at 1002; Spencer
Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th Cir.
2003). So I agree with the majority that our decision in Mat-
suk is controlling as to the reviewability of the IJ’s ultimate
determination that his DUI convictions constituted a “particu-
larly serious crime” under § 1231(b)(3)(B).
Matsuk’s conclusion on this specific point has, however,
recently been rejected by two circuits, in opinions I find per-
suasive. See Alaka v. Atty General of the United States, 456
F.3d 88 (3rd Cir. 2006); Nethagani v. Mukasey, 532 F.3d 150
(2d Cir. 2008). Both the Second and Third Circuits concluded
that the fact that § 1231(b)(3)(B) gives the Attorney General
4412 DELGADO v. HOLDER
authority to “ ‘decide’ or ‘determine’ ” that an offense is a
particularly serious crime is “not, standing alone, sufficient to
‘specify’ discretion.” Alaka, 456 F.3d at 96-97. As the Third
Circuit observed in Alaka, “Congress knows how to ‘specify’
discretion and has done so repeatedly in other provisions of
the INA.” Id. at 97 and n.17 (citing “thirty-two . . . provisions
in the very subchapter of the INA referenced by 8 U.S.C.
§ 1252(a)(2)(B)(ii) that make explicit the grant of ‘discretion’
to the Attorney General or the Secretary of Homeland Securi-
ty”). It did not do so in § 1231(b)(3)(B). See id.; see also
Nethagani, 532 F.3d at 154-55.
Moreover, Matsuk is in tension with our own case law.
Matsuk stated that,
The decision to deny withholding to Matsuk was
based upon the Attorney General’s discretion, pursu-
ant to Section 1231(b)(3)(B)(ii), to determine
whether an aggravated felony conviction resulting in
a sentence of less than 5 years is a particularly seri-
ous crime. Thus Section 1252(a)(2)(B)(ii) divests
this court of jurisdiction to review this issue.
247 F.3d at 1002 (footnote and quotation marks omitted).
Matsuk did not, however, explain why this is so. Instead, it
simply cited the BIA’s decision in Matter of S-S-, 22 I. & N.
Dec. 458 (BIA 1999), which states that § 1231(b)(3)(B) “af-
fords the Attorney General discretion to exercise her judg-
ment as to whether the conviction is for a particularly serious
crime when an alien has been sentenced to less than 5 years
for the very same offense.” 22 I. & N. Dec. at 464 (cited in
Matsuk, 247 F.3d at 1002 n. 13).
As this Court recognized in Spencer Enterprises, however,
§ 1252(a)(2)(B)(ii) does not deprive us generally of jurisdic-
tion to review “discretionary decisions” of the Attorney Gen-
eral under the INA. 345 F.3d at 689. Instead,
§ 1252(a)(2)(B)(ii) only restricts us from reviewing those
DELGADO v. HOLDER 4413
decisions “the authority for which is specified under the INA
to be discretionary.” Id. (emphasis in original). Under the test
this Court adopted in Spencer Enterprises, it would appear
that the determination of “particularly serious crime[s] under
§ 1231(b)(3)(B) is not a decision “the authority for which is
specified under the INA to be discretionary.”
§ 1252(a)(2)(B)(ii); 345 F.3d. at 689.
Spencer Enterprises, however, was decided after Matsuk
and characterized “the decision at issue in Matsuk — whether
to classify an alien’s past offense as a ‘particularly serious
crime’ under § 1231(b)(3)(B) — as one that “did fall under
this second category, because it is “a decision that is entirely
lacking in statutory guidelines.”5 Id. at 690. Given Matsuk,
Spencer Enterprises, and Morales, I have no choice but to
accept the majority’s conclusion that we lack plenary jurisdic-
tion to review the Attorney General’s “particularly serious
crime” designations with regard to withholding. But for these
cases, I would hold, as have the Second and Third Circuits,
that a statutory provision that simply gives the Attorney Gen-
eral authority to “determine” something is not one that is
“specified under the INA to be discretionary.”
§ 1252(a)(2)(B)(ii).
I note, however, that at least some of the issues Delgado
seeks to raise on the merits regarding the IJ’s designation of
his offenses as a particularly serious crime are not ones that
fall within the jurisdiction-stripping provisions of
§ 1252(a)(2)(B)(ii). Congress, in the REAL ID Act, has made
clear that § 1252(a)(2)(B)(ii) does not “preclude[ ] [our]
review of . . . questions of law raised upon a petition for
review.” § 1252(a)(2)(D). In Morales, this Court considered,
in light of the REAL ID Act, how broadly to construe Mat-
suk’s holding regarding the BIA’s unreviewable discretion to
5
Spencer Enterprises’ actual holdings, however, concerned the applica-
bility of § 1252(a)(2)(B)(ii). to a different provision of the INA,
§ 1153(b)(5). See 345 F.3d at 691.
4414 DELGADO v. HOLDER
determine that a specific offense is a particularly serious
crime. See Morales, 478 F.3d at 979, citing Matsuk, 247 F.3d
at 1002. We stated that “this court has jurisdiction pursuant to
8 U.S.C. § 1252(a)(2)(D) . . . to consider legal questions
related to the determination of whether a crime is particularly
serious.” 478 F.3d at 980 (parentheses and citation omitted).
In his petition for review, Delgado questions whether, as a
matter of law, DUI convictions can constitute a “particularly
serious crime” under § 1231(b)(3)(B), and whether this statute
should be applied retroactively to his convictions. See Rama-
dan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (issues of
statutory construction are per se questions of law). It may
well be that Delgado cannot prevail on either of these issues.
Section 1252(a)(2)(B)(ii), however, does not deprive us of
jurisdiction to make this determination.
Conclusion
I cannot agree with the majority that the BIA has authority
to make “particularly serious crime” determinations for asy-
lum purposes on a case-specific basis. I also would conclude
that the IJ and BIA erred as a matter of law in determining
that Delgado’s convictions rendered him ineligible for with-
holding of removal under § 1231(b)(3)(B), so I would remand
for consideration of the merits of this claim as well. I agree,
however, that Delgado is eligible for asylum, and that we lack
jurisdiction, for the most part, over the application of the
withholding of removal standard. I therefore concur in the
majority opinion to that extent.