Valerio-Ramirez v. Lynch

United States Court of Appeals
For the First Circuit

No. 14-2318

LIZBETH PATRICIA VELERIO-RAMIREZ,

Petitioner,

v.

LORETTA E. LYNCH,*
Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

Mary P. Holper, Director, Boston College Legal Services LAB,
Immigration Clinic, for petitioner.
Jem Colleen Sponzo, with whom Francis W. Fraser, Senior
Litigation Counsel, Office of Immigration Litigation, United
States Department of Justice, Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Civil Division, and John W. Blakeley,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.
Manny D. Vargas, Trina Realmuto, and Khaled Alrabe, on brief
for the National Immigration Project of the National Lawyers Guild
and the Immigrant Defense Project, amici curiae in support of
petitioner.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr., as the respondent.
 Philip L. Torrey, on brief for Harvard Immigration and Refugee
Clinical Program, Harvard Law School, amicus curiae in support of
petitioner.

December 11, 2015
 LYNCH, Circuit Judge. Inconsistent characterization of

the governing law by the immigration authorities and insufficient

analysis by the Board of Immigration Appeals ("BIA") lead us, in

an abundance of caution, to remand this petition to the BIA.

Lizbeth Patricia Velerio-Ramirez1 ("Valerio"), a native

and citizen of Costa Rica, petitions for review of an order of the

BIA denying her application for withholding of removal. Her

petition contends that the BIA erred in upholding the immigration

judge's ("IJ") determination that her conviction for aggravated

identity theft was a "particularly serious crime" rendering her

ineligible for withholding of removal under 8 U.S.C. § 1231(b).

However, Valerio is not in fact in removal proceedings

subject to 8 U.S.C. § 1231. The Immigration and Naturalization

Service ("INS") placed Valerio in deportation -- not removal --

proceedings in 1991. By the time the Department of Homeland

Security2 ("DHS") took action in Valerio's case in 2011, however,

Congress had replaced deportation with removal, a process governed

by a different set of statutes, and DHS mistakenly regarded Valerio

as being in removal proceedings. DHS leveled removability charges

1 The petitioner has informed the court that her maiden
name "Valerio-Ramirez" was misspelled in the record as "Velerio-
Ramirez." We refer to her as "Valerio" going forward.

2 In 2003, "the functions of the INS were reorganized and
transferred to the Department of Homeland Security ('DHS')."
Santana v. Holder, 566 F.3d 237, 239 n.1 (1st Cir. 2009).

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against her, and the IJ's decision applied removal law in denying

her application for relief.

In its 2014 denial of Valerio's appeal of the IJ's

decision, the BIA identified the error and stated that Valerio was

in deportation proceedings governed by 8 U.S.C. § 1253. It also

said that the law governing the two proceedings was the same. But

the statutory language is not the same, a fact not acknowledged by

the agency. The version of former 8 U.S.C. § 1253(h) governing

Valerio's claim for withholding of deportation contains an

additional provision, § 1253(h)(3), which was added by

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

§ 413(f) and was nullified only a few months later in 1996 when

Congress replaced deportation with removal. The language of

§ 1253(h)(3) is not present in the withholding of removal statute,

8 U.S.C. § 1231(b)(3), or earlier versions of 8 U.S.C § 1253(h).

Here, the BIA's review of Valerio's application not only

omitted any reference to § 1253(h)(3) but also failed to

acknowledge its existence or discuss how it applies. Given these

circumstances, and the additional fact that the BIA has not spoken

on how § 1253(h)(3) applies to non-aggravated felons such as

Valerio, we do not reach the merits of Valerio's petition out of

deference to the agency. It is not our place to interpret in the

first instance a statute which the BIA has been charged with

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interpreting.3 We reject the government's position that the

petitioner has precluded remand because she failed to exhaust the

issue of applicable law; the BIA itself raised the issue, and that

suffices. We also reject the government's argument that remand is

inappropriate because this court in Choeum v. INS, 129 F.3d 29

(1st Cir. 1997) already decided what there is to decide. It is

for the BIA to consider Choeum on remand. Accordingly, we now

remand Valerio's case to the BIA to interpret and apply the correct

law: former 8 U.S.C. § 1253(h) as amended by AEDPA § 413(f).

I.

At age 22, Valerio left Costa Rica and entered the United

States with her then-boyfriend Carlos Gomez.4 Soon after entering

the United States in March 1991, Valerio was apprehended and placed

in deportation proceedings for entering without inspection. Those

3 That the BIA merely corrects an error of law committed
by an IJ does not itself lead to remand. We remand here in light
of the significant additional fact that the BIA has not previously
addressed how § 1253(h)(3) applies to non-aggravated felons. Under
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842–43 (1984), "the BIA is entitled to deference in
interpreting ambiguous provisions of the [Immigration and
Nationality Act]." Negusie v. Holder, 555 U.S. 511, 516 (2009);
see INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).

4 Valerio's declaration in support of her petition for
withholding of removal describes childhood trauma she experienced
in Costa Rica, including sexual abuse by her father and a local
priest. Valerio also attests to extensive physical, mental, and
emotional abuse by her then-boyfriend Gomez, including being
thrown on the ground and head-butted while pregnant. She pleads
that Gomez will likely inflict serious harm to her if she returns
to her native country.

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proceedings were administratively closed after Valerio failed to

appear before an IJ in April 1991.

After settling in the United States, between 1995 and

2007, Valerio obtained and used the social security number and

identification documents of a real person named Rosa Hernández, in

order to obtain employment, a driver's license, and credit cards.

In 2007, the real Rosa Hernández contacted the police about

possible identity theft, and Valerio was subsequently arrested and

indicted for three counts of mail fraud, in violation of 18 U.S.C.

§ 1341, and one count of aggravated identity theft, in violation

of 18 U.S.C. § 1028A. Valerio was found guilty after a jury trial

in federal court, and this court affirmed the conviction. See

United States v. Valerio, 676 F.3d 237, 240 (1st Cir. 2012). The

sentencing judge imposed an order of restitution in the amount of

$176,669.77 and imprisonment of two years and one day. Valerio

served her sentence and was afterward transferred into DHS custody.

In 2011, DHS re-calendared Valerio's deportation

proceeding under the original 1991 charge of deportability

pursuant to former § 241(a)(1)(B) of the Immigration and

Nationality Act ("INA") (entering without inspection). In her

March 29, 2011, responsive pleading, Valerio conceded

deportability as charged. On May 5, 2011, Valerio, apparently

believing that she was in removal proceedings, filed an application

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for asylum and withholding of removal.5 The record includes

numerous letters from the government to Valerio stating that she

is in removal proceedings, and in July 2012, DHS leveled three

charges of removability against her.6 Although the IJ stated at a

March 22, 2011, hearing that Valerio was in deportation proceedings

and was applying for relief under the "old rule," the IJ's January

7, 2013, written opinion treated Valerio as being in removal

proceedings and applied removal law.

In its January 7, 2013, order and opinion, the IJ

pretermitted Valerio's application for withholding of removal on

the basis that her crime was "particularly serious." The IJ also

denied her motion to amend her application and ordered her removed

to Costa Rica. After finding Valerio removable, the IJ applied

the BIA's multi-factor test set forth in Matter of Frentescu, 18

5 During her merits hearing on May 1, 2012, Valerio sought
only withholding of removal. Through a subsequent letter, she
moved to amend her application to include a request for relief
under the Convention Against Torture (CAT).

6 Although the government at one point leveled a charge of
removability for conviction of an aggravated felony under INA
§ 237(a)(2)(A)(iii), see 8 U.S.C. § 1227(a)(2)(A)(iii), it later
withdrew the charge and does not now contend that Valerio is an
aggravated felon. The government's brief states, Valerio "was not
found to be an aggravated felon," and the government has not
elsewhere objected to that characterization. Furthermore, after
the government withdrew the aggravated felony conviction charge,
neither the IJ nor the BIA's written opinion found Valerio to be
an aggravated felon. We accept the characterization that she is
a non-aggravated felon.

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I. & N. Dec. 244 (BIA 1982), to determine that Valerio's conviction

for aggravated identity theft was a "particularly serious crime,"

barring her from obtaining withholding of removal under 8 U.S.C.

§ 1231(b)(3). Finding Valerio barred from withholding by that

conviction, the IJ did not address the mail fraud conviction and

did not reach the merits of Valerio's application.

On appeal, the BIA upheld the IJ's determination that

Valerio had been convicted of a "particularly serious crime"

barring withholding but vacated the IJ's order as to the three

removability charges. The beginning of the BIA's opinion, in a

footnote, states that the IJ mischaracterized the applicable law

in referring to withholding of removal, as Valerio was "in

deportation proceedings and [was] applying for withholding of

deportation pursuant to section 243 of the Act, 8 U.S.C. § 1253."

The BIA stated, nonetheless, that "[t]he particularly serious

crime analysis is the same under both provisions." Turning to

Valerio's withholding application, the BIA applied the Frentescu

test, and found, as had the IJ, that Valerio's conviction for

aggravated identity theft was a "particularly serious crime,"

noting that her crime involved a real victim and that identity

theft "is a serious problem in our society." The BIA ordered

Valerio deported to Costa Rica. This petition followed.

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 II.

Valerio's petition for review challenges the BIA's

application of the "particularly serious crime" exception to her

conviction for aggravated identity theft. However, we do not reach

the merits of that petition. Her case is governed by the

withholding of deportation statute, former 8 U.S.C. § 1253(h), as

amended by AEDPA § 413(f). In rejecting her position, the BIA

omitted analysis of a portion of the governing statute. While it

is well-settled that we defer to the BIA's interpretation of the

immigration laws where reasonable, the BIA's decision failed to

acknowledge whether or how, if at all, AEDPA § 413(f) changes the

"particularly serious crime" determination for a non-aggravated

felon like Valerio. We think it prudent to remand to the agency

for consideration of the issue. We explain below.

A. The "Particularly Serious Crime" Exception

Congress has long prohibited the Attorney General from

deporting a person to a country if she "determines that [an]

alien's life or freedom would be threatened in such country on

account of race, religion, nationality, membership in a particular

social group, or political opinion," 8 U.S.C. § 1253(h)(1) (1980);

id. (1990); id. (1996). See Alphonsus v. Holder, 705 F.3d 1031,

1037-41 (9th Cir. 2013) (discussing the statute's history). An

exception to that rule provides that withholding of deportation

"shall not apply to any alien if the Attorney General determines

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that . . . (B) the alien, having been convicted by a final judgment

of a particularly serious crime, constitutes a danger to the

community of the United States," 8 U.S.C. § 1253(h)(2) (1980).

In 1982, the BIA in Matter of Frentescu set forth a

multi-factor test to determine whether a crime is "particularly

serious." See 18 I. & N. Dec. at 247 ("In judging the seriousness

of a crime, we look 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.").7

In 1990, Congress amended § 1253(h)(2) by categorically

designating all aggravated felonies as "particularly serious"

crimes. See Immigration Act of 1990, Pub. L. No. 101–649, § 515,

104 Stat. 4978, 5053 (formerly codified at 8 U.S.C. 1253(h)(2)).

Then in April 1996, Congress passed AEDPA, which expanded the list

7 The BIA has also interpreted the exception to require
only one determination, that is, an alien found to be convicted of
a "particularly serious crime" is necessarily found to be a "danger
to the community." See Matter of Carballe, 19 I. & N. Dec. 357,
359–60 (BIA 1986). All circuits that have addressed the issue,
including our own, have upheld this interpretation. See
Kankamalage v. INS, 335 F.3d 858, 861 n.2 (9th Cir. 2003); Hamama
v. INS, 78 F.3d 233, 240 (6th Cir. 1996); Ahmetovic v. INS, 62
F.3d 48, 53 (2d Cir. 1995); Al–Salehi v. INS, 47 F.3d 390, 391
(10th Cir. 1995); Kofa v. INS, 60 F.3d 1084, 1088 (4th Cir. 1995)
(en banc); Garcia v. INS, 7 F.3d 1320, 1322 (7th Cir. 1993);
Mosquera-Perez v. INS, 3 F.3d 553, 559 (1st Cir. 1993); Martins v.
INS, 972 F.2d 657, 661 (5th Cir. 1992) (per curiam); Crespo-Gomez
v. Richard, 780 F.2d 932, 935 (11th Cir. 1986).

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of aggravated felonies. See AEDPA, Pub. L. No. 104–132, § 440(e),

110 Stat. 1214, 1277–78 (1996) (codified at 8 U.S.C.

§ 1101(a)(43)). At the same time, § 413(f) of that legislation

created an override provision to the "particularly serious crime"

bar, which was codified at 8 U.S.C. § 1253(h)(3). In relevant

part, 8 U.S.C. § 1253(h)(3) read:

(3) Notwithstanding any other provision of
law, paragraph (1) [requiring withholding of
deportation] shall apply to any alien if the
Attorney General determines, in the discretion
of the Attorney General, that --

. . .

(B) the application of paragraph (1) to such
alien is necessary to ensure compliance with
the 1967 United Nations Protocol Relating to
the Status of Refugees.

AEDPA § 413(f), 110 Stat. at 1269 (formerly codified at 8 U.S.C.

§ 1253(h)(3)).

The BIA continued to apply the "particularly serious

crime" bar without a separate "danger to the community"

determination. See In Re Q-T-M-T-, 21 I. & N. Dec. 639, 656 (BIA

1996). However, in light of AEDPA § 413(f), the BIA began treating

only aliens convicted of aggravated felonies with sentences of

five years or more as per se convicted of "particularly serious"

crimes and began subjecting aliens convicted of aggravated

felonies with shorter sentences to a rebuttable presumption of

conviction of a "particularly serious crime," adjudged by whether

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"any unusual aspect of the alien's particular aggravated felony

conviction . . . convincingly evidences that his or her crime

cannot rationally be deemed 'particularly serious' in light of our

treaty obligations under the Protocol." Id. at 654 (citing the

Frentescu test in explaining how to apply 8 U.S.C. § 1253(h)(3) to

aggravated felony convictions).

AEDPA § 413(f) was short-lived. In September 1996,

through the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 ("IIRIRA"), Congress replaced

deportation with removal proceedings, see Pub. L. No. 104–208,

§§ 301–309, 110 Stat. 3009-546, 3009-575 to 3009-627, and in the

new withholding of removal provision, omitted the language

previously added by AEDPA § 413(f), see § 305(a)(3), 110 Stat. at

3009-602 (codified at 8 U.S.C. § 1231(b)). IIRIRA also eliminated

the categorical designation of all aggravated felonies as

"particularly serious" crimes. Id. Thereafter, the BIA returned

to applying the Frentescu test to determine whether a conviction

for an aggravated felony with a sentence shorter than five years

or for a non-aggravated felony is "particularly serious." See

Alphonsus, 705 F.3d at 1041.

Because INS placed Valerio in deportation proceedings in

1991, and final action was not taken in her case until well after

1996, Valerio's deportation proceedings are governed by former

8 U.S.C. § 1253(h), as amended by AEDPA § 413(f). See

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AEDPA § 413(g), 110 Stat. at 1269–70 (1996) (stating that § 413(f)

"shall apply to applications filed before, on, or after such date

if final action has not been taken on them before such date").8

B. Application of Former 8 U.S.C. § 1253(h), as Amended by AEDPA
§ 413(f)

The government argues we must dismiss the bulk of the

petition by suggesting that Valerio did not raise before the BIA

the issue of whether AEDPA § 413(f) alters the "particularly

serious crime" determination in her case, and so arguments about

applicable law, which are raised by Valerio and amici curiae,9 are

unexhausted. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.

2004). However, we do not have to address whether Valerio herself

raised an appropriate challenge to the BIA's application of law,

as the BIA itself raised the issue sua sponte. See Mazariegos-

Paiz v. Holder, 734 F.3d 57, 60 (1st Cir. 2013) ("[T]he

administrative exhaustion requirement is satisfied as to

particular issues when the agency, either on its own initiative or

at the behest of some other party to the proceedings, has addressed

8 The provisions at issue in IIRIRA took effect on April
1, 1997, and do not apply to "deportation proceedings commenced
before April 1, 1997, and in which a final order of deportation
issued after October 30, 1996," Prado v. Reno, 198 F.3d 286, 288
n.2 (1st Cir. 1999).

9 Two briefs in support of the petitioner have been
submitted in this case, one by the National Immigration Project of
the National Lawyers Guild and the Immigrant Defense Project, and
another by the Harvard Immigration and Refugee Clinical Program of
Harvard Law School. We acknowledge their assistance.

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those claims on the merits, regardless of whether the petitioner

himself raised them."); see also Meng Hua Wan v. Holder, 776 F.3d

52, 56 (1st Cir. 2015). The BIA addressed applicable law directly

in a footnote at the beginning of its opinion, remarking on the

IJ's erroneous use of removal law, stating that Valerio's

application is governed by deportation law, and making the

additional unbriefed determination that "[t]he particularly

serious crime analysis is the same under both provisions." We see

no exhaustion objection that would preclude review.

Here, Valerio's opening brief clearly raised the issue

of applicable law and included discussion of AEDPA § 413(f), the

fact that her case is governed by former 8 U.S.C. § 1253(h), and

the import of international law to the application of the statute.

We see no reason to conclude that she abandoned these arguments,

on which amici have advanced variations.10

Still, when the BIA has not spoken on an issue that a

statute has placed in its hands, remand is appropriate to give the

10 The government also contends that we cannot consider the
arguments concerning the proper statutory interpretation of AEDPA
§ 413(f) because they were advanced in the first instance by two
amicus briefs involved in the case. While it is true that "amici
may not present legal theories not argued by the parties," they
may present "variations on the arguments presented by" a party.
Albathani v. INS, 318 F.3d 365, 375 n.6 (1st Cir. 2003). Amici
are permitted to "assist the court in achieving a just resolution
of issues raised by the parties." Lane v. First Nat'l Bank of
Boston, 871 F.2d 166, 175 (1st Cir. 1989). They have done so here.

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BIA an opportunity to address the issue in the first instance.

See Negusie v. Holder, 555 U.S. 511, 516 (2009).

The government also argues that this court has already

upheld the BIA's interpretation of former 8 U.S.C. § 1253(h), as

amended by AEDPA § 413(f), so there is no reason to remand. See

Choeum, 129 F.3d at 35. It is true that the BIA should on remand

consider the effect of Choeum, but that does not obviate the need

for remand. Choeum concerned an aggravated felon. This case does

not. We leave it to the BIA to determine whether that difference

is relevant and to articulate the "particularly serious crime"

determination for a non-aggravated felon like Valerio. A single,

unsupported assertion in a footnote, lacking rationale or

precedent, stating that "removal and deportation proceedings are

treated the same" is simply not enough, especially in light of the

harsh consequences of deportation. See INS v. Cardoza-Fonseca,

480 U.S. 421, 449 (1987).

Accordingly, we remand to the BIA to interpret in the

first instance and apply former 8 U.S.C. § 1253(h), as amended by

AEDPA § 413(f), to a non-aggravated felon.

III.

For the reasons stated above, we grant the petition to

the extent of remanding this matter to the BIA for further

proceedings not inconsistent with this opinion.

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