FILED
NOT FOR PUBLICATION OCT 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HAZRAT NAUMAN AFZAL, No. 09-72391
Petitioner, Agency No. A038-951-205
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 13, 2011
San Francisco, California
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Hazrat Afzal, a native and citizen of Pakistan, petitions for review of a
Board of Immigration Appeals (“BIA”) decision finding that he was convicted of a
particularly serious crime and was therefore ineligible for withholding of removal
under 8 U.S.C. § 1231(b)(3)(B)(ii), and denying deferral of removal under the
Convention Against Torture (“CAT”). We have jurisdiction to review legal or
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
constitutional claims, including whether the BIA “failed to consider the appropriate
factors or relied on improper evidence in making the ‘particularly serious crime’
determination.” Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (internal
citations omitted); see also 8 U.S.C. § 1252(a)(2)(D). We have jurisdiction
pursuant to 8 U.S.C. § 1252(a) to review the denial of CAT deferral, and we
review for substantial evidence. See Delgado v. Holder, 648 F.3d 1095, 1108 (9th
Cir. 2011) (en banc).
We have held that “in considering whether the BIA has applied the correct
legal standard for determining whether a particularly serious crime has been
committed, we must refer to the Frentescu factors as subsequently modified by the
BIA.” Anaya-Ortiz, 594 F.3d at 679. In re Frentescu, 18 I. & N. Dec. 244 (BIA
1982), “requires consideration of certain factors: ‘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.’” Delgado, 648 F.3d at
1107 (quoting Frentescu, 18 I. & N. Dec. at 247) (emphasis added). A finding that
an alien has committed a particularly serious crime will support the determination
of danger to the community. See id.; Anaya-Ortiz, 594 F.3d at 679.
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Here, the BIA considered only two of the Frentescu factors in determining
that Afzal was convicted of a particularly serious crime. The BIA considered the
nature of the conviction, noting that Afzal pleaded guilty to assault with a deadly
weapon. The BIA also considered the circumstances and underlying facts of the
conviction, finding that “[a]fter being honked at by another vehicle for swerving
suddenly and cutting it off, [Afzal] brandished a stolen semiautomatic weapon and
discharged it.” The BIA noted that Afzal admitted to being under the influence of
a controlled substance at the time of the incident. In its analysis, the BIA did not
consider, or even mention, the type of sentence imposed as a result of the
conviction before concluding that Afzal was convicted of a particularly serious
crime and pretermitting his application for withholding of removal. Frentescu
requires consideration of this factor, see Delgado, 648 F.3d at 1107, and thus the
BIA erred by failing to consider the type of sentence imposed. Because the BIA
failed to apply the correct legal standard, we grant the petition for review as to the
withholding claim and remand to the BIA for proper consideration of all Frentescu
factors in determining whether Afzal is statutorily ineligible for withholding of
removal because he was convicted of a particularly serious crime.
We deny the petition for review as to the BIA’s denial of CAT deferral. The
record evidence, including the country conditions reports, does not compel a
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finding that Afzal is more likely than not to be tortured if he is returned to
Pakistan. Therefore, the BIA decision is supported by substantial evidence. See
Delgado, 648 F.3d at 1108 (finding that the denial of CAT deferral “is supported
by substantial evidence” because the “evidence does not compel the conclusion
that [petitioner] will be tortured by the Salvadoran government”).
The petition for review is GRANTED as to the withholding claim, and
REMANDED to the BIA for application of the correct legal standard. The
petition for review as to the denial of CAT deferral is DENIED.
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