FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KHALIL-SALIM ARBID,
Petitioner, No. 09-73211
v.
Agency No.
A078-049-035
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 15, 2012—San Francisco, California
Filed April 3, 2012
Before: Susan P. Graber and Richard C. Tallman,
Circuit Judges, and Robert J. Timlin,*
Senior District Judge.
Per Curiam Opinion
*The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
3647
ARBID v. HOLDER 3649
COUNSEL
Sharon Parker, Esq., Las Vegas, Nevada, for petitioner
Khalil-Salim Arbid.
Kiley L. Kane, Esq., United States Department of Justice,
Civil Division, Washington, D.C., for respondent Eric Holder
Jr.
3650 ARBID v. HOLDER
OPINION
PER CURIAM:
Khalil-Salim Arbid (“Arbid”), a native and citizen of Leba-
non, petitions for review of a decision from the Board of
Immigration Appeals (“BIA”). The BIA upheld the immigra-
tion judge’s (“IJ”) determination that Arbid had committed a
particularly serious crime, rendering him ineligible for asylum
or withholding of removal. The BIA also affirmed the IJ’s
finding that conditions had changed in Lebanon such that it
was no longer more likely than not that Arbid would be tor-
tured upon his return. Arbid argues that his mail fraud convic-
tion was not a particularly serious crime and that it is still
more likely than not that he will be tortured upon his return
to Lebanon. We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1), and we deny the petition.
I
After suffering torture at the hands of Syrian intelligence
agents in Lebanon in the late 1990s, Arbid fled to the West.
He traveled to Mexico in 2000 and soon entered the United
States at the Port of Entry at Douglas, Arizona, falsely claim-
ing to be an American citizen.
Three months after his illegal entry, Arbid was served with
a Notice to Appear before an IJ. Arbid admitted that he had
lied about his citizenship to gain entry into the United States,
but he sought asylum and withholding of removal. The IJ
determined that Arbid had a well-founded fear of persecution
for his political beliefs should he be removed to Lebanon and
granted Arbid’s application for asylum and withholding of
removal.
In April 2008, Arbid pleaded guilty to mail fraud under 18
U.S.C. § 1341. According to the Statement of Facts accompa-
nying his plea agreement, Arbid was involved in a two-man
ARBID v. HOLDER 3651
scheme to defraud mortgage lenders. The scheme’s general
purpose was to receive multiple “loans” from different institu-
tions using a single house in suburban Washington, D.C., as
collateral. Arbid created false documents to induce lenders to
issue loans, the proceeds of which he deposited into his per-
sonal checking account. Arbid was sentenced to sixteen
months in prison and was ordered to pay more than $650,000
in restitution.
After Arbid served his criminal sentence, the Department
of Homeland Security (“DHS”) moved to reopen Arbid’s
removal proceedings, charging that Arbid was no longer eligi-
ble for asylum or withholding of removal because he had been
convicted of a particularly serious crime. After hearing
Arbid’s description of his criminal activities and after review-
ing the criminal record, the IJ held that Arbid’s crime of con-
viction was particularly serious, rendering him ineligible for
asylum or withholding of removal. The IJ then held a hearing
to determine whether conditions had changed in Lebanon
such that it was no longer more likely than not that Arbid
would be tortured if he was removed there. After both parties
submitted exhibits about country conditions in Lebanon, the
IJ determined that conditions had changed such that Arbid
was not eligible for deferral of removal under the Convention
Against Torture (“CAT”). The BIA upheld the IJ’s decision
in a reasoned opinion.
II
A
[1] Under 8 U.S.C. § 1231(b)(3)(B)(ii), an alien is not eli-
gible for withholding of removal if the Attorney General—or
its delegate, the BIA1—“decides” that the alien has “been con-
1
“As adjudicator in immigration cases, the Board exercises authority
delegated by the Attorney General.” Kucana v. Holder, 130 S. Ct. 827,
832 (2010).
3652 ARBID v. HOLDER
victed by a final judgment of a particularly serious crime.” As
we recently held in Delgado v. Holder, 648 F.3d 1095 (9th
Cir. 2011) (en banc), “we have jurisdiction to review the
BIA’s determination that an alien has been convicted of a
‘particularly serious crime’ and is therefore ineligible for
withholding of removal.” Id. at 1097 (overruling Matsuk v.
INS, 247 F.3d 999, 1002 (9th Cir. 2001)).2
B
[2] Although we have recognized our jurisdiction to
review BIA decisions on particularly serious crimes, we have
not announced a standard of review for those decisions. See
id. at 1108 (failing to reach the standard-of-review issue
because the BIA had not met its minimum procedural require-
ments under the Due Process Clause). Based on our prior case
law interpreting § 1231(b)(3)(B)(ii), we now hold that deter-
mining whether a crime is particularly serious is an inherently
discretionary decision, and we will review such decisions for
abuse of discretion. The Supreme Court’s decision in Kucana
v. Holder, 130 S. Ct. 827 (2010), and our recent decision in
Delgado, do not require a different outcome. To the contrary,
2
At oral argument, the government contended—for the first time—that
we lack jurisdiction to review Arbid’s removal order because he was
found removable as an aggravated felon. See 8 U.S.C. § 1252(a)(2)(C).
Upon closer reading of the record, the government is mistaken. DHS had
originally charged Arbid as removable for having committed an aggra-
vated felony, but later withdrew that charge. Thus, as was precisely the
case in Delgado, we need not reach the issue of whether § 1252(a)(2)(C)
bars our review. See Delgado, 648 F.3d at 1098 n.5.
We called for additional briefing after oral argument. The government
now argues in its supplemental brief that we lack jurisdiction because
Arbid is removable as an alien convicted of a crime involving moral turpi-
tude (“CIMT”). See 8 U.S.C. § 1182(a)(2)(A)(i)(I). This argument is not
only improperly raised, but is also completely unsupported by the record.
Neither the IJ’s decision nor the BIA’s opinion makes even passing refer-
ence to Arbid’s being convicted of a CIMT. Thus, despite the govern-
ment’s argument to the contrary, we again hold that the criminal alien
review bar does not apply in cases like this one.
ARBID v. HOLDER 3653
employing an abuse-of-discretion standard of review is con-
sistent with those cases and the law of our sister circuits.
C
Our analysis begins with the text of § 1231(b)(3)(B)(ii)
itself. See Rodriguez v. Holder, 619 F.3d 1077, 1079 (9th Cir.
2010) (per curiam). Section 1231(b)(3)(B)(ii) states that an
alien is ineligible for withholding of removal “if the Attorney
General decides” that the alien has been convicted of a partic-
ularly serious crime. Our pre-Delgado cases properly inter-
preted the particularly serious crime “decisions” to be within
the Attorney General’s discretion. See Matsuk, 247 F.3d at
1002. This approach is consistent with the BIA’s own inter-
pretation of the statute. See In re N-A-M-, 24 I & N Dec. 336,
344 (B.I.A. 2007) (describing determinations of particularly
serious crimes as “inherently discretionary”).
D
Because of our consistent treatment of particularly serious
crime determinations as discretionary, we previously inter-
preted 8 U.S.C. § 1252(a)(2)(B)(ii)—the so-called “discre-
tionary review bar”—to divest us of jurisdiction to review
such determinations. See 8 U.S.C. § 1252(a)(2)(B)(ii)
(explaining that “no court shall have jurisdiction to review . . .
any other decision or action of the Attorney General . . . the
authority for which is specified under this subchapter to be in
the discretion of the Attorney General”); see also Matsuk, 247
F.3d at 1002 (holding that, because particularly serious crime
determinations are discretionary, “[s]ection 1252(a)(2)(B)(ii)
divests this court of jurisdiction to review this issue”).
Our interpretation of § 1252(a)(2)(B)(ii) changed, however,
after the Supreme Court’s decision in Kucana. At issue in
Kucana was the BIA’s denial of an alien’s motion to reopen
his immigration proceedings. 130 S. Ct. at 831. Section
1229a(C)(7)—the section of the Illegal Immigration Reform
3654 ARBID v. HOLDER
and Immigrant Responsibility Act of 1996 that covers
motions to reopen—is silent as to whether the decision to
deny a motion to reopen is within the Attorney General’s dis-
cretion. See Kucana, 130 S. Ct. at 831 (citing § 1229a(C)(7)).
The Attorney General, however, issued a regulation declaring
such decisions to be discretionary. See id. at 832 (citing 8
C.F.R. § 1003.2(a)). The Seventh Circuit, recognizing the
Attorney General’s discretion as announced in the regulation,
held that § 1252(a)(2)(B)(ii) precluded judicial review of the
decision to deny the motion to reopen. Id. at 833.
The Court, recognizing “the presumption favoring judicial
review of administrative action,” id. at 839, held that
§ 1252(a)(2)(B)(ii) does not prohibit judicial review of “deter-
minations declared discretionary by the Attorney General
himself through regulation,” id. at 831. Rather, the statute
“bar[s] court review of discretionary decisions only when
Congress itself set[s] out the Attorney General’s discretionary
authority in the statute.” Id. at 837. A contrary ruling, the
Court explained, would grant the BIA “a free hand to shelter
its own decisions from abuse-of-discretion appellate court
review simply by issuing a regulation declaring those deci-
sions ‘discretionary.’ ” Id. at 840.
In our recent en banc decision in Delgado, we applied the
Court’s Kucana rationale to BIA determinations of particu-
larly serious crimes. Delgado, 648 F.3d at 1100. We inter-
preted Kucana to mean that § 1252(a)(2)(B)(ii) only bars
review of a discretionary decision when “the statute explicitly
refers to the discretion of the Attorney General.” Id. Because
§ 1231(b)(3)(B)(ii) merely allows the Attorney General to
“decide” whether the alien’s crime was particularly serious,
the language “does not explicitly vest discretion in the Attor-
ney General.” Id. Thus, we have jurisdiction to review such
decisions. Id.
But simply because the statute does not “explicitly vest”
the Attorney General with discretion to decide whether a
ARBID v. HOLDER 3655
crime is particularly serious does not mean that such decisions
are not discretionary. Indeed, as the Court pointed out in
Kucana, a BIA decision can still be discretionary without trig-
gering § 1252(a)(2)(B)(ii)’s discretionary review bar. In
Kucana, the Court recognized that, notwithstanding its narrow
interpretation of § 1252(a)(2)(B)(ii), BIA decisions concern-
ing motions to reopen are still inherently discretionary. 130 S.
Ct. at 834. The Court affirmed that such decisions are prop-
erly reviewed for abuse of discretion. Id. (“Mindful of the
Board’s ‘broad discretion’ in such matters, however, courts
have employed a deferential, abuse-of-discretion standard of
review.”).
Without expressly saying so, our opinion in Delgado recog-
nized that particularly serious crime determinations are within
the Attorney General’s discretion. We explained that the
Attorney General has the “authority to determine that, under
the circumstances presented by an individual case, a crime
was ‘particularly serious.’ ” Delgado, 648 F.3d at 1105. We
also recognized that these determinations are informed by a
series of factors that the BIA itself has identified, including
“ ‘the nature of the conviction, the circumstances and underly-
ing 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 communi-
ty.’ ” Id. at 1107 (quoting In re Frentescu, 18 I & N Dec. 244,
247 (B.I.A. 1982)).
Given this case-by-case adjudicatory process, other circuits
have held particularly serious crime determinations to be
discretionary—and have reviewed them on an abuse-of-
discretion standard—notwithstanding the inapplicability of
§ 1252(a)(2)(B)(ii). See, e.g., Gao v. Holder, 595 F.3d 549,
557 (4th Cir. 2010) (referring to particularly serious crime
determinations as within the Attorney General’s discretion
and recognizing that such determinations are reviewed for
abuse of discretion), cert. denied, 131 S. Ct. 898 (2011); see
also Nethagani v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008)
3656 ARBID v. HOLDER
(recognizing that particularly serious crime determinations are
within the BIA’s discretion and upholding the BIA’s determi-
nation because it had followed the Frentescu factors). Thus,
we hold that the BIA’s determination that an alien was con-
victed of a particularly serious crime is a discretionary deci-
sion, and we review such decisions under an abuse-of-
discretion standard.3
E
On abuse-of-discretion review, we may disturb the BIA’s
ruling if the BIA acted “arbitrarily, irrationally, or contrary to
law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000)
(internal quotation marks omitted). In this case, Arbid argues
that the BIA and IJ erred in assessing and weighing the
Frentescu factors. We disagree.
[3] Neither the BIA nor the IJ abused its discretion in hold-
ing that Arbid was convicted of a particularly serious crime.
The IJ began his analysis with a review of the Frentescu fac-
tors. He looked at the conviction itself, a guilty plea for mail
fraud. He reviewed the underlying facts of the conviction,
studying the Statement of Facts that accompanied Arbid’s
guilty plea and asking Arbid questions about the crime. He
paid special attention to Arbid’s sentence, including the “sub-
stantial” 16-month term of imprisonment and the $650,000
restitution order. He was disturbed by Arbid’s testimony
insisting that he was the victim in the scheme, finding that
Arbid “apparently has no remorse and doesn’t even take
responsibility for his part in the conspiracy and in the fraudu-
lent scheme.” Finally, based on the “good likelihood” that
Arbid’s crimes could happen again, the IJ determined that
Arbid “certainly would be a danger to the community.”
3
As we have explained in text, the BIA’s assessment and weighing of
the Frentescu factors is a discretionary decision. Nothing in our opinion
should be read to alter the principle that constitutional and legal challenges
are questions of law that we review de novo. Lopez-Cardona v. Holder,
662 F.3d 1110, 1111 (9th Cir. 2011).
ARBID v. HOLDER 3657
The BIA reviewed the IJ’s determination and held that the
IJ “properly considered the nature of the conviction, the sen-
tence imposed, and the circumstances and underlying facts of
the conviction.” The BIA then considered the “nature and
scope” of Arbid’s crime, finding that the “complex scheme”
to defraud victims of nearly $2 million constituted a particu-
larly serious crime. We hold that the BIA and IJ did not abuse
their discretion.
III
Because we do not disturb the IJ and BIA’s determination
that Arbid committed a particularly serious crime, Arbid is
not eligible for asylum or withholding of removal. See 8
U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Arbid’s only
remaining means of avoiding removal is deferral of removal
under the CAT. See 8 C.F.R. § 1208.17(a). We review for
substantial evidence the factual findings underlying the IJ and
BIA’s determination that Arbid was not eligible for deferral
of removal under the CAT. See Zheng v. Ashcroft, 332 F.3d
1186, 1193 (9th Cir. 2003). To reverse the BIA’s factual find-
ings, “the evidence must compel a different conclusion from
the one reached by the BIA.” Zheng v. Holder, 644 F.3d 829,
835 (9th Cir. 2011).
[4] Substantial evidence supports the IJ’s decision,
affirmed by the BIA, that conditions in Lebanon had changed
such that it was no longer more likely than not that Arbid
would be tortured upon his return there. Since the late 1990s
when Arbid was persecuted for his anti-Syrian views, the Syr-
ian military has withdrawn from Lebanon, an anti-Hezbollah
majority has wrested control of the legislature, and the politi-
cal leader Arbid previously supported has returned from exile
to help govern the state. This evidence does not compel a dif-
ferent result.
PETITION DENIED.