Valerio-Ramirez v. Sessions

United States Court of Appeals
For the First Circuit

Nos. 16-2272, 17-1402

LIZBETH PATRICIA VALERIO-RAMIREZ,

Petitioner,

v.

JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,

Respondent.

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

Before

Lynch, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Mary P. Holper and Boston College Legal Services LAB
Immigration Clinic for petitioner.
John Willshire Carrera and Philip L. Torrey on brief for
Harvard Immigration and Refugee Clinical Program and Immigrant
Defense Project, amici curiae.
Margaret Kuehne Taylor, Senior Litigation Counsel, Office of
Immigration Litigation, with whom Chad A. Readler, Acting
Assistant Attorney General, Civil Division, and Derek C. Julius,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
February 15, 2018
 LYNCH, Circuit Judge. This case involves what

constitutes a "particularly serious crime," the commission of

which renders a petitioner ineligible for withholding of

deportation or removal.

The case is before this court for the second time. An

Immigration Judge ("IJ") determined that Lizbeth Valerio-Ramirez's

("Valerio") conviction for aggravated identity theft was a

"particularly serious crime" that rendered her ineligible for

withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). The

Board of Immigration Appeals ("BIA") affirmed, but noted in passing

that Valerio was subject to deportation, under 8 U.S.C. § 1253(h),

not removal. On petition for review, this court vacated the BIA's

decision and remanded to the BIA to clarify the applicable legal

standard. Velerio-Ramirez v. Lynch, 808 F.3d 111 (1st Cir. 2015).

On remand, the BIA concluded that in deportation and removal

proceedings alike, its longstanding framework under Matter of

Frentescu supplies the standard for determining whether a non-

aggravated felony qualifies as a "particularly serious crime."

See 18 I. & N. Dec. 244, 247 (B.I.A. 1982). Reiterating its prior

reasoning, the BIA again found Valerio ineligible for withholding.

We find no error as to the applicable legal framework

adopted by the BIA. We also find that we have jurisdiction to

review the merits of the BIA's determination that Valerio's crime

is "particularly serious." Having carefully reviewed the record,

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we conclude that the BIA did not abuse its discretion.

Accordingly, we deny Valerio's petitions for review.

I. Background

In March 1991, Valerio, a native and citizen of Costa

Rica, entered the United States without inspection. She was

apprehended and placed in deportation proceedings, which were

administratively closed when she failed to appear at her initial

hearing.

Soon thereafter, Valerio's then-boyfriend Carlos Gomez

purchased her a birth certificate and social security card in the

name of Ms. Rosa Hernandez, a U.S. citizen who lived in Puerto

Rico. From 1995 to 2007, Valerio used Hernandez's identity to

secure employment, open numerous lines of credit, and purchase two

cars and a home. Valerio also used Hernandez's identity to defraud

the government of over $176,000 in housing assistance, food stamps,

and other welfare benefits. In 2006, the real Rosa Hernandez

learned while trying to purchase a car that someone had opened

lines of credit under her name. A year later, Valerio was

apprehended, and in 2010, after a jury trial in federal court, she

was found guilty of one count of aggravated identity theft under

18 U.S.C. § 1028A and three counts of mail fraud under 18 U.S.C.

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§ 1341. She was sentenced to two years' imprisonment, the

mandatory minimum. See 18 U.S.C. § 1028A(a)(1).

In 2011, after Valerio had served her sentence, the

Department of Homeland Security ("DHS") reopened her deportation

proceedings. By then, Congress had replaced "deportation,"

subject to § 1253, with "removal," subject to § 1231. DHS

mistakenly treated Valerio as being in removal proceedings, and

Valerio in turn applied for both asylum and withholding of

removal.1

In 2013, the IJ found Valerio removable and ineligible

for withholding of removal. The IJ determined that Valerio's

conviction for aggravated identity theft was a "particularly

serious crime" that barred her from obtaining withholding of

removal under § 1231(b)(3)(B)(ii). In making this determination,

the IJ applied the multi-factor test articulated in Matter of

Frentescu, which instructs courts to "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."

1 Valerio later decided not to pursue asylum.

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18 I. & N. Dec. at 247. We detail the IJ's application of the

Frentescu factors later.

In 2014, the BIA upheld the IJ's decision. In a

footnote, the BIA pointed out sua sponte that the IJ had

erroneously applied the removal statute (§ 1231) instead of the

deportation statute (§ 1253). However, it deemed the error

harmless because "[t]he particularly serious crime analysis is the

same under both provisions." The BIA opined that the IJ soundly

applied the Frentescu criteria in examining Valerio's crime, and

went on to address specific arguments that Valerio raised in her

appeal. As to Valerio's sentence, the BIA found that it reflected

Valerio's "personal situation" rather than an assessment by the

sentencing judge that her actions were of lesser seriousness; to

the contrary, it found, the circumstances in this case demonstrated

the unusually serious nature of Valerio's scheme. As to Valerio's

argument that her conviction was for a "nonviolent, victimless

crime," the BIA explained that although violence was indeed not at

issue here, there were real victims: the subject of the identity

theft, whose social security number and identity were stolen, and

the government, which was defrauded of at least $176,000.

Considering the harm Valerio caused to Hernandez and society as a

whole, and commenting that "[i]dentity theft is a serious problem

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in our society," the BIA "d[id] not accept [Valerio's] claim that

she poses no threat to society or to other individuals."

As said, in 2015, on Valerio's petition for review, a

panel of this court remanded the case to the BIA "in an abundance

of caution." Velerio-Ramirez, 808 F.3d at 112. The reasons for

the remand are stated in that opinion. In 2016, after remand, and

without taking additional briefing, the BIA succinctly reaffirmed

its prior decision, finding "no change [was] warranted in [its]

previous analysis." The BIA explained that § 1253(h)(3), added by

§ 413(f) of the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, 1269 (1996),

"was enacted to offset the expanded definition of aggravated felony

[also enacted by the AEDPA] by giving the Attorney General

discretionary authority to override the categorical bar that

designated every aggravated felony as a particularly serious

crime"; § 1253(h)(3) "did not make any significant changes in [the

BIA's] interpretation of when a crime that is not an aggravated

felony constitutes a particularly serious crime." Post-AEDPA, the

BIA's jurisprudence evolved to address "which aggravated felonies

are to be considered per se particularly serious crimes and which

require a discretionary determination," but in non-aggravated

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felony situations, the BIA "continue[d] to exercise [its]

discretion, applying the Frentescu analysis."

Valerio moved for reconsideration before the BIA,

arguing that the Frentescu test as construed by the BIA does not

comply with the 1967 United Nations Protocol Relating to the Status

of Refugees, and, in any event, that the IJ and BIA did not properly

apply the test. The BIA denied the motion, finding no error of

law or fact in its decisions and emphasizing that both the IJ and

BIA "fully and properly considered" "[t]he nature and

circumstances of [Valerio's] crime."

Valerio petitioned this court to review both the BIA's

final order of deportation (No. 16-2272) and its subsequent denial

of her motion to reconsider (No. 17-1402). These two petitions

were consolidated in June 2017. We now review them together.

II. Discussion

A. Jurisdiction

As a threshold matter, the government argues that we

lack jurisdiction to review the merits of the BIA's determination

that Valerio committed a particularly serious crime. We disagree.

The government relies on 8 U.S.C. § 1252(a)(2)(B)(ii),

which states, "[N]o court shall have jurisdiction to review . . .

any . . . decision or action of the Attorney General . . . the

authority for which is specified under [§§ 1151-1381] to be in the

discretion of the Attorney General or the Secretary of Homeland

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Security." But in Kucana v. Holder, the Supreme Court held that

§ 1252(a)(2)(B) "barred court review of discretionary decisions

only when Congress itself set out the Attorney General's

discretionary authority in the statute." 558 U.S. 233, 247 (2010)

(emphasis added). Only "decisions specified by statute 'to be in

the discretion of the Attorney General' . . . [are] shielded from

court oversight." Id. at 248 (quoting 8 U.S.C.

§ 1252(a)(2)(B)(ii)).

While Kucana itself involved a question of whether a

regulation could trigger the jurisdiction-stripping provisions of

§ 1252(a)(2)(B), its limitations on the operation of those

provisions would appear to be applicable to statutes as well. One

key issue that Kucana did not squarely address, however, is the

precise language that Congress must use in order to endow the

Attorney General or the Secretary of Homeland Security with

discretion over a determination such that the federal courts are

deprived of jurisdiction to review that determination under

§ 1252(a)(2)(B).

With this decision, we side with the majority of other

circuits that have held that, under Kucana, a statutory provision

must expressly and specifically vest discretion in the Attorney

General (for example, by explicitly using the words "in the

discretion of the Attorney General") rather than simply leave to

the executive branch certain decisions and determinations that

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happen to be discretionary in nature. See Delgado v. Holder, 648

F.3d 1095, 1100 (9th Cir. 2011) (en banc); Berhane v. Holder, 606

F.3d 819, 821-22 (6th Cir. 2010) (noting that "[t]o 'specify' that

a decision belongs to the Attorney General's discretion . . . means

to 'name or state explicitly or in detail,'" and concluding that

merely empowering the Attorney General to make a "determination"

or to "decide" an issue does not suffice to trigger the

jurisdictional bar); see also Nethagani v. Mukasey, 532 F.3d 150,

154-55 (2d Cir. 2008) ("[W]hen a statute authorizes the Attorney

General to make a determination, but lacks additional language

specifically rendering that determination to be within his

discretion . . . , the decision is not one that is 'specified . . .

to be in the discretion of the Attorney General' for purposes of

[the jurisdictional bar].") (second alteration in original)

(quoting 8 U.S.C. § 1252(a)(2)(B)(ii)); Alaka v. Att'y Gen., 456

F.3d 88, 94-102 (3d Cir. 2006). But see Estrada-Martinez v. Lynch,

809 F.3d 886, 892 (7th Cir. 2015) (finding the "particularly

serious crime" determination unreviewable because it is inherently

discretionary).

As the Supreme Court has explained, "[w]hen a statute is

'reasonably susceptible to divergent interpretation, we adopt the

reading that accords with traditional understandings and basic

principles: that executive determinations generally are subject to

judicial review.'" Kucana, 558 U.S. at 251 (quoting Gutierrez de

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Martinez v. Lamagno, 515 U.S. 417, 434 (1995)). Thus, if a statute

contains no clear statement vesting discretion over a

determination with the Attorney General or the Secretary of

Homeland Security, § 1252(a)(2)(B)(ii) does not strip the federal

courts of jurisdiction to review the applicable determination.

This case involves two distinct statutory provisions.

First, § 1253(h)(2)(B) provides that withholding of deportation

"shall not apply . . . if the Attorney General determines that

. . . the alien, having been convicted by a final judgment of a

particularly serious crime, constitutes a danger to the community

of the United States." (emphasis added). Second, § 1253(h)(3)(B)

provides that "[withholding of deportation] shall apply to any

alien if the Attorney General determines, in the discretion of the

Attorney General, that . . . [withholding] is necessary to ensure

compliance with the 1967 United Nations Protocol Relating to the

Status of Refugees." (emphasis added). The government argues that

"to the extent" we find the BIA acted pursuant to § 1253(h)(3)(B),

we lack jurisdiction to revisit its analysis. That may be true,

but we do not reach that question.

As the government itself asserts in its brief,

§ 1253(h)(3)(B) "had no impact whatsoever on the particularly

serious crime determination made in Ms. Valerio's case." The BIA

did not determine under § 1253(h)(3)(B) that withholding of

deportation was necessary. Rather, it determined under

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§ 1253(h)(2)(B) that Valerio committed a particularly serious

crime.

We have jurisdiction to review the merits of the BIA's

decision because § 1253(h)(2)(B) does not expressly commit the

particularly serious crime determination to the Attorney General's

discretion. Other circuits agree. See Delgado, 648 F.3d at 1100;

Nethagani, 532 F.3d at 154-55; Alaka, 456 F.3d at 94-95. But see

Estrada-Martinez, 809 F.3d at 892.2

Of course, we also have jurisdiction to address

questions of law raised by Valerio's petition. See

§ 1252(a)(2)(D); Mele v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015).

These include what standard governs "particularly serious crime"

determinations for non-aggravated felons in deportation

proceedings under § 1253(h)(2)(B), and whether the addition of

§ 1253(h)(3)(B) under the AEDPA has impacted that standard.

B. Applicable Law

An alien is ineligible for withholding of deportation if

"the Attorney General determines that . . . the alien, having been

convicted by a final judgment of a particularly serious crime,

constitutes a danger to the community of the United States."

2 We note that, in its request to the Supreme Court to
deny certiorari in Estrada-Martinez v. Lynch, the government
conceded that § 1252(a)(2)(B)(ii) did not present a jurisdictional
bar to federal court review of the "particularly serious crime"
determination.

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8 U.S.C. § 1253(h)(2)(B). In its remand order, this court asked

the BIA to "articulate the 'particularly serious crime'

determination for a non-aggravated felon," and to address whether

the enactment of § 413(f) of the AEDPA, codified at

§ 1253(h)(3)(B), altered that determination. Velerio-Ramirez,

808 F.3d at 118. On remand, the BIA explained that it determines

on a case-by-case basis whether a non-aggravated felony qualifies

as a "particularly serious crime" for the purposes of

§ 1253(h)(2)(B) by applying the multi-factor test set forth in

Matter of Frentescu, and that § 1253(h)(3) did not alter this well-

settled analytical framework.3 We uphold these conclusions based

on the statutory history and our decision in Choeum v. INS,

129 F.3d 29 (1st Cir. 1997).

Section 1253(h)(2)(B) mirrors the language of the United

Nations Protocol Relating to the Status of Refugees, 19 U.S.T.

6223 (the "Protocol"). Choeum, 129 F.3d at 41-42. As neither the

3 Valerio argues that she was denied due process because
the BIA issued its post-remand decision without first providing
her an opportunity to brief the question posed by the First Circuit
in its remand order. This procedural plaint lacks merit. Valerio
knew of the remand, but she did not request that the BIA provide
her an opportunity to submit a post-remand brief. Regardless, the
regulation governing briefing before the BIA makes no mention of
a duty to solicit briefing following a remand. See 8 C.F.R.
§ 1003.3(c). While the BIA's Practice Manual does contemplate
that the BIA will set a briefing schedule on remand "in appropriate
cases," § 4.19(d), the Manual is "strictly informational in
nature," Preface, and "does not carry the weight of law or
regulation," § 1.1(c).

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Protocol nor § 1253(h)(2)(B) defines "particularly serious crime,"

the BIA articulated in Matter of Frentescu a multi-factor test for

determining on a case-by-case basis which crimes qualify as

particularly serious. See 18 I. & N. Dec. 244, 247 (B.I.A. 1982).

The BIA later held that an alien who has committed a particularly

serious crime necessarily represents a danger to the community; no

separate dangerousness determination is required under

§ 1253(h)(2)(B). Matter of Carballe, 19 I. & N. Dec. 357, 360

(B.I.A. 1986). "All circuits that have addressed the issue . . .

have upheld this interpretation." Velerio-Ramirez, 808 F.3d at

115 n.7; see also Choeum, 129 F.3d at 41 ("This court, while

acknowledging that there is 'considerable logical force' to the

argument that the Particularly Serious Crime Exception requires a

separate determination of dangerousness to the community, has

upheld the agency's interpretation under Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)."

(citations omitted)).

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

designate aggravated felonies as particularly serious crimes. See

Matter of C-, 20 I. & N. Dec. 529, 534-35 & n.3 (B.I.A. 1992).

The BIA accordingly dispensed with the Frentescu case-by-case

inquiry in aggravated felony cases, but retained it for non-

aggravated felonies. See id. at 535 n.3; see also Mosquera-Perez

v. INS, 3 F.3d 553, 559 (1st Cir. 1993) ("[I]t is reasonable to

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infer that Congress intended the 1990 amendment to equate

aggravated felonies with 'danger to the community,' obviating a

redundant Frentescu inquiry in cases involving aggravated

felonies."). Congress again amended § 1253(h)(2) when it enacted

the AEDPA. The AEDPA expanded the statutory definition of

aggravated felonies, see Pub. L. No. 104-132, § 440(e), 110 Stat.

1214, 1269 (1996), but also gave the Attorney General discretionary

authority, "[n]otwithstanding any other provision of law," to

withhold deportation whenever "necessary to ensure compliance with

the [Protocol]." Id. § 413(f).

In Choeum, this court thoroughly considered the

significance of § 1253(h)(3) for the "particularly serious crime"

test articulated in Frentescu and its progeny. The petitioner in

Choeum argued that it expressed congressional intent to reject the

BIA's interpretation that the Protocol and § 1253(h)(2)(B) do not

require a standalone inquiry into an alien's dangerousness.

129 F. 3d at 41. This court rejected that argument. See id. at

43. Instead, it deferred to the BIA's interpretation: § 1253(h)(3)

was intended to offset the AEDPA's expansion of the definition of

aggravated felonies, by "preserv[ing] the Attorney General's

flexibility in assessing whether crimes now defined as aggravated

felonies were, in fact, 'particularly serious' within the meaning

of the Protocol." Choeum, 129 F.3d at 42-43. Choeum involved an

aggravated felony, but this court's conclusion that the AEDPA did

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not alter the BIA's test for case-specific "particularly serious

crime" determinations is dispositive for aggravated and non-

aggravated felonies alike.

In conclusion, the BIA's determination that Matter of

Frentescu supplies the standard for determining whether a non-

aggravated felony qualifies as a "particularly serious crime"

rendering an alien ineligible for withholding of deportation is

sound. The Frentescu framework includes an inquiry into "whether

the type and circumstances of the crime indicate the alien is a

danger to the community," 18 I. & N. Dec. at 247; no separate

dangerousness assessment is required, Carballe, 19 I. & N. Dec. at

360.4

C. Merits of the "Particularly Serious Crime" Finding

Where, as here, "the BIA adopted and affirmed the IJ's

ruling but also discussed some of the bases for the IJ's opinion,

we review both the IJ's and BIA's opinions." Weng v. Holder,

4 We acknowledge that Valerio and the amici have
marshalled evidence in support of their claim that the BIA has
been misinterpreting the Protocol and § 1253(h)(2)(B) ever since
it decided in Matter of Carballe that no separate assessment of
dangerousness is necessary. However, we cannot resuscitate a
debate that has been thoroughly litigated in almost all circuits,
unanimously resolved in the BIA's favor, and twice put to rest by
this court. See Mosquera-Perez, 3 F.3d at 559; Choeum, 129 F.3d
at 43; Velerio-Ramirez, 808 F.3d at 115 n.7; see also N-A-M v.
Holder, 587 F.3d 1052, 1057 (10th Cir. 2009)("Although
[petitioner] and the distinguished amici make strong arguments
that the BIA is not accurately interpreting the statute and its
treaty-based under-pinnings, we are constrained by our precedent
to hold otherwise.").

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593 F.3d 66, 71 (1st Cir. 2010) (internal quotation marks omitted)

(quoting Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir. 2008)). We

review for abuse of discretion the BIA's assessment and weighing

of the Frentescu factors, including its conclusion that the crime

of conviction was "particularly serious." See Arbid v. Holder,

700 F.3d 379, 385 (9th Cir. 2012); Gao v. Holder, 595 F.3d 549,

557 (4th Cir. 2010). Under this deferential standard, we will

uphold the determination "unless it was made 'without a rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis.'" Choeum, 129 F.3d at 44

(quoting Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991)); see

also Gao, 595 F.3d at 557 ("Appellate courts should not lightly

reverse for abuse of discretion in cases where, as here, lower

tribunals weigh various factors under a totality-of-the

circumstances test."). We also review legal questions de novo,

while affording deference to the BIA's interpretations of the

statutes and regulations it administers. See Costa v. Holder,

733 F.3d 13, 16 (1st Cir. 2013).

Valerio argues that the BIA erred as a matter of law

because, she says, it completely failed to examine several of the

Frentescu factors. Specifically, she alleges the BIA ignored her

sentence, disregarded the underlying facts and circumstances of

her conviction, and did not make any finding whatsoever as to

whether the type and circumstances of her crime indicate she is a

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danger to the community. She argues that it would be legal error

for the BIA, while purporting to perform the case-specific inquiry

prescribed by Matter of Frentescu, to fail to conduct an

individualized analysis of the alien's crime. See Afridi v.

Gonzales, 442 F.3d 1212, 1219, 1221 (9th Cir. 2006) (BIA acted

arbitrarily and capriciously because it "did not consider the

circumstances and underlying facts of the conviction" and thus

"failed to engage in a case-specific analysis"), overruled on other

grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n.15

(9th Cir. 2008) (en banc); Yousefi v. INS, 260 F.3d 318, 329-30

(4th Cir. 2001) (IJ's and BIA's "complete failure . . . to consider

key Frentescu factors" -- "specifically, the circumstances and

underlying facts of the conviction and whether the circumstances

of the crime indicate that [petitioner] would be a danger to the

community" -- was arbitrary and capricious). However, as detailed

below, the record in this case shows the IJ and BIA did conduct an

individualized analysis of Valerio's crime, properly guided by the

Frentescu factors. We also find that in performing its analysis,

the BIA did not abuse its discretion.

First, Valerio contends that the BIA failed to perform

an "individualized, case-specific analysis" of the circumstances

and facts of Valerio's identity theft conviction, instead making

"what amounted to a per se determination that aggravated identity

theft is particularly serious." The record flatly contradicts her

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claim. After finding generally that the elements of "aggravated

identity theft" bring it "within the ambit of particularly serious

crimes," the IJ evaluated Valerio's offense. The IJ took into

consideration Valerio's state of mind ("[Valerio] did not merely

make up a Social Security number at random . . . , rather she

knowingly stole the identity of a real person"); the multiple

illicit uses she made of Hernandez's identity beyond merely

securing employment ("to take out a loan, purchase a home, purchase

two cars, [and] open numerous lines of credit" as well as "to

defraud the government of . . . welfare benefits"); the duration

of the scheme ("more than a decade"); the sentence imposed ("twenty

four months," a "significant length of time" reflecting the crime's

"serious nature"); and the "substantial sum" she was ordered to

pay in restitution (over $176,000). The IJ emphasized the

"pervasive and comprehensive nature" of Valerio's fraudulent

stratagem, which involved maintaining separate bank accounts and

residences so as to withhold the income she earned and assets she

held under Hernandez's name when applying for government aid under

her real name; separately storing two sets of identity documents;

impersonating Hernandez to vouch for herself in welfare benefit

applications; and even submitting false "corrections" to the

residential history and student loan debt information in

Hernandez's credit reports. The IJ concluded from this fact-

intensive inquiry that Valerio's scheme was "complex in nature,

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lasting more than a decade, and extended well beyond securing the

bare necessities for her family's welfare." In light of this

analysis, the BIA soundly concluded that the "nature and

circumstances of [Valerio's] crime were fully and properly

considered."

Valerio retorts that the bulk of the BIA's

individualized analysis pertained to her three mail fraud

convictions, not her identity theft. She claims the particularly

serious crime analysis must focus on a single conviction, and

argues that the BIA erred as a matter of law when it considered

the circumstances of her mail fraud conviction. The argument

relies on a mistaken reading of a concurrence in Delgado, 648 F.3d

at 1112 (Reinhardt, J., concurring) ("The singular article 'a'

could not make any clearer the singular nature of 'a particularly

serious crime': the agency must identify one offense of conviction

that constitutes a particularly serious crime."). The premise of

Valerio's argument is wrong. Valerio was convicted of aggravated

identity theft, that is, identity theft performed "during and in

relation to" another felony. See 18 U.S.C. § 1028A(a)(1). As the

IJ emphasized, "to be charged with aggravated identity theft, the

perpetrator must have committed multiple criminal acts, all of

which involve fraud, deception, and the potential for serious

economic harm to the victim." When the crime of conviction has as

an element the commission of another crime, the "particularly

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serious crime" analysis should take into account the facts and

circumstances of that other crime. Here, because mail fraud was

a component of the aggravated identity theft offense under

consideration, it necessarily bears upon that offense's

seriousness. Thus, it was entirely proper for the BIA to consider

Valerio's mail-fraud offenses in assessing the seriousness of her

aggravated identity theft conviction.

Second, Valerio contends that the BIA failed to consider

relevant sentencing information -- specifically, the fact she

received no more than a mandatory minimum sentence. Again, the

record shows otherwise. As the BIA noted approvingly, the IJ

acknowledged the sentencing judge's basis for imposing a mandatory

minimum sentence -- Valerio's "age, the fact that she had three

minor children, and her mental and emotional state" -- but found

such "personal circumstances" unpersuasive because they did not

diminish the gravity of her crime. See Matter of N-A-M-, 24 I. &

N. Dec. at 343. Considering and rejecting Valerio's argument that

her sentence "reflects the low level of seriousness of her

offense," the IJ reasoned that "twenty four months is a significant

length of time and reflects the serious nature of aggravated

identity theft." There was no abuse of discretion in the IJ and

BIA's assessment of Valerio's sentence.

Third, Valerio contends that the BIA failed to consider

whether the type and circumstances of her crime indicate she is a

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danger to the community. Not so. The IJ conducted a detailed

inquiry into the circumstances of Valerio's crime, highlighting

how it "resulted in long-term harm, both to the victim, Rosa

Hernandez, as well as to society in general." The BIA endorsed

the IJ's findings and concluded Valerio was a threat to other

individuals and society in general:

We agree with the Immigration Judge that
[Valerio] inflicted harm on the subject of her
identity theft, as well as defrauding various
institutions of at least $176,000.
[Valerio's] claim that there is no harm here
is not persuasive. This is not potential harm
. . . . This is actual harm. For similar
reasons, we, like the Immigration Judge, do
not accept the respondent's claim that she
poses no threat to society or to other
individuals.

On remand, the BIA further emphasized how identity theft "can cause

severe detriment to its victims and is a danger to the community,"

and that in this particular case, Valerio "engaged in fraud on

many occasions for over 10 years." The seriousness of Valerio's

fraudulent scheme, evidenced by its complexity, duration, and the

significant harm caused, supported a finding that Valerio posed a

threat to the community.

Valerio contends that, even if we find the BIA engaged

in a case-specific analysis guided by the Frentescu factors, the

BIA nonetheless erred in reaching its ultimate conclusion that her

aggravated identity theft was a particularly serious crime. She

makes two arguments: first, that as a matter of law only violent

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offenses can qualify as particularly serious crimes, and second,

that in the rare instances crimes not involving violence or a

threat of bodily injury have been deemed particularly serious, the

offenses were "significantly more heinous" and caused more

"extensive financial harm" than Valerio did here.

Neither the Protocol nor § 1253(h)(2)(B) defines the

phrase "particularly serious crime." Nor do they set any bright-

line limitations on the types of offenses that may qualify as

particularly serious. The BIA has reasonably concluded that "while

an offense is more likely to be considered particularly serious if

it is against a person," the offense need not necessarily involve

violence in order to qualify. See Matter of R-A-M-, 25 I. & N.

Dec. 657, 662 (B.I.A. 2012). Indeed, on a number of occasions,

circuit courts have upheld BIA decisions finding non-violent

crimes "particularly serious." See, e.g., Arbid, 700 F.3d at 385

(mail fraud of nearly $2 million); Kaplun v. Att'y Gen., 602 F.3d

260, 267-68 (3d Cir. 2011) (securities fraud of nearly $900,000);

Hakim v. Holder, 628 F.3d 151, 152, 154 (5th Cir. 2010) (money

laundering of over $50,000). The IJ reasonably concluded that

because, as a general matter, aggravated identity theft can involve

"extensive schemes of deception" and have "devastating effects on

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the victims of identity theft and society as a whole," it falls

within the ambit of particularly serious crimes.

Nor can we say that the IJ's and BIA's "particularly

serious crime" determination on the facts of this case was made

"without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis."

Choeum, 129 F.3d at 44 (quoting Hazzard, 951 F.2d at 438). The IJ

highlighted the similarities between Valerio's crime and the mail

fraud deemed particularly serious in Arbid. In upholding the BIA's

conclusion in Arbid, the Ninth Circuit emphasized the petitioner's

"substantial" sixteen-month term of imprisonment, the imposition

of a $650,000 restitution order, the petitioner's apparent lack of

remorse, and the complex nature of the petitioner's scheme. Arbid,

700 F.3d at 385. Here, Valerio was subject to a two-year term of

imprisonment as well as a restitution order of over $170,000, and,

as the IJ described in some detail, Valerio engaged in an unusually

"complex," "comprehensive," and "long-term" scheme. Contrary to

Valerio's representations in her petition, it is clear that hers

was not a garden-variety identity theft. Many aggravating

circumstances undergird and cabin the BIA's ruling: the extended

duration of the identity theft and related fraud, its far-reaching

scope, its complexity, and the substantial amounts involved. We

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find the BIA did not abuse its discretion when it concluded that

Valerio committed a particularly serious crime.

III. Conclusion

For these reasons, Valerio's petitions for review are

denied.

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