FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALBERTO HERNANDEZ, No. 21-70493
Petitioner,
Agency No.
v. A094-447-896
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2021
Pasadena, California
Filed June 28, 2022
Before: Paul J. Kelly, Jr., * Milan D. Smith, Jr., and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest
*
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 HERNANDEZ V. GARLAND
SUMMARY **
Immigration
Denying Jose Alberto Hernandez’s petition for review of
a decision of the Board of Immigration Appeals, the panel
held that: (1) Hernandez’s receipt of temporary protected
status (“TPS”) was not an admission, and he therefore could
not meet the statutory requirement that he have seven years
of continuous residence in the United States after admission
for purposes of lawful permanent resident cancellation of
removal; and 2) the Board properly concluded that
Hernandez’s domestic-violence conviction was a
particularly serious crime (“PSC”) that barred him from
obtaining asylum.
Considering the Supreme Court’s recent decision in
Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021), and the plain
language of the TPS statute, 8 U.S.C. § 1254a(c)(5), the
panel concluded that the granting of TPS does not constitute
being “admitted in any status” under the cancellation statute,
8 U.S.C. § 1229b(a). The panel held that Sanchez effectively
overruled circuit precedent requiring consideration of the
benefits conferred by an alien’s immigration status in
determining whether the alien had been admitted. The panel
explained that circuit precedent judicially expanding the
statutory definition of admission was clearly irreconcilable
with Sanchez’s holding that lawful status and admission are
distinct concepts in immigration law. The panel wrote that
Sanchez is clear that TPS does not constitute an admission
to the United States no matter how great its benefits.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HERNANDEZ V. GARLAND 3
The panel wrote that the plain language of the TPS
statute reinforced its conclusion that receiving TPS does not
constitute an admission under the cancellation statute. Most
compelling is the statute’s express statement that a grant of
TPS does not constitute an admission. Moreover, certain
other language indicates that TPS is a disfavored way to
establish any of the cancellation-of-removal requirements,
and notably absent from the statute’s list of benefits is
admission. Accordingly, the panel agreed with the BIA that
Hernandez failed to satisfy the 7-year continuous residence
requirement after having been admitted in any status, and he
was therefore not eligible for lawful permanent resident
cancellation of removal.
The panel rejected Hernandez’s argument that the BIA
legally erred in its PSC determination by considering the
cumulative effect of his three domestic-violence
convictions, instead of considering his third conviction in
2016 alone. The panel concluded that the BIA’s specific
references to Hernandez’s third domestic-violence
conviction made clear that it did not hold that all three
convictions, considered collectively, constituted a
particularly serious crime. Rather, the agency held only that
the third conviction was particularly serious in light of the
previous convictions. The panel concluded that it need not
address whether the BIA properly considered Hernandez’s
prior convictions in deciding that his third conviction was
particularly serious because Hernandez did not “specifically
and distinctly” argue that this was error in his opening brief,
and thus forfeited the issue.
4 HERNANDEZ V. GARLAND
COUNSEL
Niels W. Frenzen (argued) and Jean E. Reisz, University of
Southern California, Gould School of Law, Immigration
Clinic, Los Angeles, California, for Petitioner.
Lindsay Corliss (argued), Trial Attorney; Brianne Whelan
Cohen, Senior Litigation Counsel; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
FORREST, Circuit Judge:
The Board of Immigration Appeals (BIA) denied
Petitioner Jose Alberto Hernandez cancellation of removal
concluding that his receipt of temporary protected status
(TPS) was not an admission and, therefore, he could not
meet the statutory requirement that he have seven years of
continuous residence in the United States after admission.
The BIA also denied Hernandez’s application for asylum
concluding that his 2016 domestic-violence conviction was
a “particularly serious crime” that barred him from relief.
Hernandez challenges the BIA’s decision raising two
primary arguments: (1) under our precedent, his TPS does
constitute an admission “in any status” under the
cancellation statute, 8 U.S.C. § 1229b(a), and (2) the BIA
applied an improper legal standard in deciding that his 2016
conviction was for a particularly serious crime.
We reject both arguments. In doing so, we hold that the
Supreme Court’s recent decision in Sanchez v. Mayorkas,
141 S. Ct. 1809 (2021), effectively overruled our precedent
HERNANDEZ V. GARLAND 5
requiring that the benefits conferred by an alien’s
immigration status be analyzed to determine if the alien had
been “admitted in any status,” see Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc), and we
conclude that under Sanchez and the plain language of the
relevant immigration statutes, Hernandez’s TPS does not
constitute an admission under 8 U.S.C. § 1229b(a)(2). We
also conclude that the BIA did not err in classifying his 2016
domestic-violence conviction as a particularly serious crime
that bars him from obtaining asylum.
I. BACKGROUND
Hernandez, a native and citizen of El Salvador, entered
the United States unlawfully in 1999. The Government
granted him TPS in 2003. The TPS program “provides
humanitarian relief to foreign nationals in the United States
who come from specified countries.” Sanchez, 141 S. Ct.
at 1812; 8 U.S.C. § 1254a(b). The Government may
designate a country for protection if the country suffers from
dangerous conditions arising from armed conflicts or natural
disasters. 8 U.S.C. § 1254a(b). Citizens of the designated
country who are already present in the United States may
then obtain TPS. Id. § 1254a(c)(1). TPS protects aliens from
removal for the duration of their country’s designation and
allows them to work in the United States. Id. § 1254a(a). An
alien’s unlawful entry generally does not preclude them from
being granted TPS. Id. § 1254a(c)(2)(A)(ii).
In 2010, approximately seven years after Hernandez
received TPS, the Government admitted him into the United
States as a lawful permanent resident. Hernandez was
convicted of multiple crimes after becoming a lawful
permanent resident. He was convicted in 2014, 2015, and
2016 of “domestic violence with injury” under California
Penal Code § 273.5(A) and sentenced to increasingly longer
6 HERNANDEZ V. GARLAND
terms of imprisonment for each offense—four days, 30 days,
and 364 days, respectively. The victim in all three cases was
Hernandez’s now ex-wife. Hernandez also was convicted of
taking a vehicle without the owner’s permission, California
Vehicle Code § 10851A, and receiving or purchasing stolen
property, California Penal Code § 496d(a). For his
receiving-stolen-property conviction, he was sentenced to
16 months’ imprisonment and served 200 days.
In August 2016, the Government charged Hernandez as
removable based on his 2016 domestic-violence conviction,
which was based on acts committed approximately five
years after Hernandez became a lawful permanent resident.
Hernandez conceded removability and sought cancellation
of removal under 8 U.S.C. § 1229b(a) (LPR cancellation)
and asylum. In 2017, the BIA denied his applications for
relief based on his receiving-stolen-property conviction, not
his 2016 domestic-violence conviction, and ordered him
removed. But two years after Hernandez sought review of
the BIA’s decision, the California Superior Court vacated his
receiving-stolen-property conviction upon which the BIA
had based its denial of relief, and we granted the
Government’s unopposed motion to remand to the BIA.
On remand, the BIA returned the case to an Immigration
Judge (IJ) for an analysis of how the vacatur of Hernandez’s
conviction affected his eligibility for LPR cancellation and
asylum. 1 At a hearing, the IJ assumed without deciding that
1
In its remand order to the IJ, the BIA noted that it did not construe
our remand order to “disturb[] [its] prior determination that [Hernandez]
did not meet his burden of proving eligibility on the merits of his
applications” for withholding of removal or CAT protection.
Accordingly, Hernandez’s eligibility for those forms of relief is not at
issue here.
HERNANDEZ V. GARLAND 7
Hernandez’s vacated 2 receiving-stolen-property conviction
did not bar him from either form of relief. Hernandez
confirmed that the Government admitted him as a lawful
permanent resident on April 29, 2010. Although he was
charged with removability for acts committed only five years
later, Hernandez argued that he had nonetheless established
the required seven years of continuous residence based on
his 2003 grant of TPS. Because the Government argued that
his 2016 domestic-violence conviction was a particularly
serious crime that barred him from receiving asylum,
Hernandez’s testimony about his convictions focused on his
domestic-violence convictions.
The IJ denied Hernandez’s application for LPR
cancellation concluding that Hernandez failed “to show
seven years of continuous residence in the United States
after having been admitted in any status.” The BIA rejected
Hernandez’s argument that, under our precedent, receiving
TPS is a grant of admission. Instead, the IJ found that
Hernandez was admitted to the United States in April 2010,
when he became a lawful permanent resident. The IJ also
found that Hernandez stopped accruing continuous
residency five years later—two years short of the
requirement—when he committed the assault for which he
was convicted in 2016.
Regarding Hernandez’s application for asylum, the IJ
concluded that Hernandez was ineligible for this relief
because his 2016 domestic-violence conviction was a
2
The California Superior Court vacated Hernandez’s receiving-
stolen-property conviction under a statute that requires that the movant
have already finished serving his sentence. See Cal. Penal Code
§ 1473.7. On remand, the IJ did not determine whether the evidence
established that the vacatur constituted a complete vacatur for
immigration purposes.
8 HERNANDEZ V. GARLAND
particularly serious crime. The IJ concluded that
Hernandez’s own testimony established this fact—
Hernandez acknowledged that he was convicted of hitting
his ex-wife in the face after two prior incidents where he
became angry and hit her and rejected Hernandez’s attempts
to minimize the severity of the conduct and harm underlying
his 2016 conviction. The IJ also considered the length of
Hernandez’s sentence for his 2016 conviction, which was
one day short of this conviction being an aggravated felony
and nondiscretionary particularly serious crime. See
8 U.S.C. §§ 1158(b)(2)(B)(i) (defining an aggravated felony
as a “particularly serious crime”), 1101(a)(43)(F) (defining
an aggravated felony for immigration purposes as a crime of
violence for which the term of imprisonment is at least
365 days).
The BIA dismissed Hernandez’s appeal. It agreed with
the IJ that Hernandez was not eligible for LPR cancellation
because he had not shown seven years of continuous
residence after admission. The BIA also found that a grant
of TPS did not qualify as being “admitted in any status.” In
addition, the BIA rejected Hernandez’s challenge to his 2016
domestic-violence conviction being classified as a
particularly serious crime. The BIA found that the IJ
properly considered the nature of Hernandez’s crime, an
assault committed with physical force, and the length of his
sentence. The BIA also concluded that it was “significant”
that Hernandez continued to engage in abusive behavior
after his first two domestic-violence convictions and that
“[t]hese circumstances . . . were properly considered in[] the
overall assessment of whether [Hernandez’s] third
conviction for domestic violence in a little over a year was
‘particularly serious.’”
HERNANDEZ V. GARLAND 9
II. DISCUSSION
“[W]e review de novo the BIA’s determinations of
questions of law and its legal conclusions.” Rodriguez v.
Holder, 683 F.3d 1164, 1169 (9th Cir. 2012). If the BIA’s
decision “adopts or relies on the IJ’s reasoning,” we review
both decisions; otherwise, we review only the BIA’s.
Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019). Where,
as here, the BIA’s decision was not published or “directly
controlled by a published decision,” we review issues of
statutory construction de novo and give no deference to the
BIA’s decision. Eleri v. Sessions, 852 F.3d 879, 884 (9th Cir.
2017) (citation omitted); Route v. Garland, 996 F.3d 968,
975 (9th Cir. 2021). We review for abuse of discretion
whether the BIA “relied on the appropriate factors and
proper evidence” to reach its determination that an alien
committed a “particularly serious crime.” Bare v. Barr,
975 F.3d 952, 961 (9th Cir. 2020) (internal quotation marks,
alterations, and citation omitted).
A. Cancellation of Removal
To be eligible for LPR cancellation, an alien must
establish that he “has resided in the United States
continuously for 7 years after having been admitted in any
status.” 8 U.S.C. § 1229b(a)(2) (emphasis added); see
Alanniz, 924 F.3d at 1065. “Admission” is defined as “the
lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.”
8 U.S.C. § 1101(a)(13)(A); Posos-Sanchez v. Garland,
3 F.4th 1176, 1182–83 (9th Cir. 2021); see also In re Reza-
Murillo, 25 I. & N. Dec. 296, 297 (BIA 2010) (citing
§ 1101(a)(13)(A) for the definition of “admitted”). This
definition, however, does not cover circumstances like
Hernandez’s where an alien enters the United States without
inspection and is later admitted to the United States based on
10 HERNANDEZ V. GARLAND
a “post-entry adjustment of status.” Negrete-Ramirez v.
Holder, 741 F.3d 1047, 1051 (9th Cir. 2014); see Alanniz,
924 F.3d at 1069–70 (noting that a person who enters the
United States without inspection is subsequently admitted to
the United States when he or she becomes a lawful
permanent resident).
Relying on our now-withdrawn opinion in Enriquez v.
Barr, 969 F.3d 1057 (9th Cir. 2020), withdrawn on denial of
reh’g en banc sub nom. Enriquez v. Barr, 988 F.3d 1210 (9th
Cir. 2021), Hernandez assumes without analysis that the
language in the cancellation of removal and TPS statutes is
ambiguous, and he argues that, if an admission as defined in
Section 1101(a)(13)(A) has not occurred, then we must
analyze the benefits conferred by his TPS and determine if
applying the statutory definition of admission produces
absurd results or if other compelling reasons mandate a
judicial expansion of the statutory definition of admission.
This analysis requires comparing TPS benefits to benefits
conferred by other statuses that we have (or have not) held
constitute an admission. Hernandez argues that the Supreme
Court’s recent decision in Sanchez does not control here
because it analyzed a different issue—whether TPS
constituted an admission for the purposes of an adjustment
of status to lawful permanent resident under 8 U.S.C. § 1255,
not LPR cancellation under Section 1229b(a). See Sanchez,
141 S. Ct. at 1811.
1. Ninth Circuit Precedent
In Garcia-Quintero v. Gonzales, we judicially expanded
the definition of “admission” in certain, narrow
circumstances. 455 F.3d 1006, 1016 (9th Cir. 2006),
abrogated by Medina-Nunez v. Lynch, 788 F.3d 1103, 1105
(9th Cir. 2015). Based on the benefits conferred by the
Family Unity Program (FUP), we concluded that
HERNANDEZ V. GARLAND 11
Section 1101(a)(13)(A)’s definition of admission does not
always control and that FUP recipients should be deemed
admitted under Section 1229b(a)(2). Id. at 1015, 1020. Four
years later, however, the BIA rejected Garcia-Quintero,
holding in In Re Reza-Murillo that the statutory definition of
admission controls whether acceptance into the FUP
constitutes an admission for cancellation-of-removal
purposes. 25 I. & N. Dec. 296, 297–300 (BIA 2010). We
accepted the BIA’s narrower reading of “admitted in any
status” as reasonable, explaining:
We also have no trouble concluding that the
BIA’s decision in In re Reza-Murillo is
“otherwise entitled to Chevron deference.”
[Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 982 (2005)
(“Brand X”).] It is reasonable for the BIA to
apply the statutory definition of the term
“admitted.” Nothing in the statutory text, the
BIA’s cases, or our own cases precludes the
BIA from relying on that definition.
Pursuant to Brand X, we must afford Chevron
deference to the BIA’s decision in In re Reza-
Murillo holding that acceptance into the
Family Unity Program does not constitute an
admission for purposes of § 1229b(a)(2). The
BIA therefore correctly denied Petitioner’s
application for cancellation of removal.
Medina-Nunez, 788 F.3d at 1105–06.
The year after our decision in Medina-Nunez, we held in
Fuentes v. Lynch that aliens “listed as derivative
beneficiaries on a parent’s asylum and [Nicaraguan
12 HERNANDEZ V. GARLAND
Adjustment and Central American Relief Act] applications
and who have been afforded authorization to work in the
United States” are not “admitted in any status.” 837 F.3d
966, 968 (9th Cir. 2016). We noted, however, that In re
Reza-Murillo left open the possibility that individuals could
be considered “‘admitted in any status’ notwithstanding their
lack of admission” under Section 1101(a)(13)(A) if there are
“compelling reasons” to depart from the statutory definition.
Id. Although our precedent does not identify what
constitutes a compelling reason to judicially expand
Section 1101(a)(13)(A)’s definition of admission, we have
generally adopted the approach that such reasons exist only
when the benefits that the status at issue confers are more
generous than those granted to those with FUP status. See,
e.g., Alanniz, 924 F.3d at 1066–67 (holding that an alien’s
parole did not qualify as admission because acceptance into
the FUP, which is a specialized form of parole, did not
qualify).
2. Sanchez v. Mayorkas
In Sanchez, the Supreme Court considered whether
conferral of TPS constituted an admission to the United
States for purposes of obtaining lawful permanent resident
status and concluded that it did not. 141 S. Ct. at 1811.
Applying a plain language analysis, the Court concluded that
“[l]awful status and admission . . . are distinct concepts in
immigration law: Establishing one does not necessarily
establish the other.” Id. at 1813. Accordingly, the Court held
that “because a grant of TPS does not come with a ticket of
admission, it does not eliminate the disqualifying effect of
an unlawful entry.” Id. at 1813–14.
The Court rejected the argument that without providing
admission, TPS “accomplishes precious little” and listed the
benefits that an alien gains from nonimmigrant status. Id.
HERNANDEZ V. GARLAND 13
at 1815. TPS allows an alien to become a lawful permanent
resident, and “[s]ome TPS recipients need exactly that
assistance—without needing a constructive admission.” Id.
For example, “a foreign national who entered the country
legally on a tourist visa” but overstayed the visa’s expiration
can satisfy the lawful-permanent-resident statute’s
admission requirement but cannot show nonimmigrant
status without a grant of TPS. Id. The Court acknowledged
that “Congress . . . could have gone further”—granting TPS
recipients nonimmigrant status and admission—but it did
not. Id. It recognized, however, that despite not deeming
TPS recipients lawfully admitted, “the statute does
something—and this Court does not get to say that the
something it does is not enough.” Id.
Our precedent judicially expanding the statutory
definition of “admission” based on the benefits conferred by
a lawful status is “clearly irreconcilable,” Gammie, 335 F.3d
at 893, with Sanchez’s holding that “[l]awful status and
admission . . . are distinct concepts in immigration law.”
141 S. Ct. at 1813. As Hernandez argues, TPS recipients
enjoy substantial benefits based on their lawful status. But
Sanchez is clear that, no matter how great those benefits,
TPS does not constitute an admission to the United States.
See id. It is irrelevant that Sanchez analyzed whether a TPS
recipient had been “admitted . . . into the United States” for
purposes of adjusting his status rather than cancellation of
removal. See id. at 1812–13. Instead, what matters is what
Sanchez held that TPS did not do—confer admission. See id.
at 1813. See generally 8 U.S.C. § 1254a(f) (not including
admission in the list of benefits and status conferred by
TPS). Accordingly, we hold that Sanchez “effectively
overrule[s]” our precedent judicially expanding the statutory
definition of admission and also establishes that
Hernandez’s TPS does not constitute an admission “in any
14 HERNANDEZ V. GARLAND
status” under Section 1229b(a). See United States v.
Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011)
(quoting Gammie, 335 F.3d at 900).
3. Statutory Text
The plain language of the TPS statute reinforces our
conclusion that receiving this status does not constitute an
admission under the cancellation statute. See Lamar, Archer
& Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1759 (2018)
(interpretation of statutory text starts “where all such
inquiries must begin: with the language of the statute itself”
(quotation marks and citation omitted)); see also In re Sosa
Ventura, 25 I. & N. Dec. 391, 392 (BIA 2010) (“There is
nothing in the language of the statue to indicate that a grant
of TPS renders an alien admissible to the United States.”).
Most compelling is the express statement that a grant of TPS
does not constitute an admission. The statute specifies that it
“shall [not] be construed as authorizing an alien to apply for
admission to, or to be admitted to, the United States in order
to apply for temporary protected status under this section.”
8 U.S.C. § 1254a(c)(5) (emphasis added). This language
establishes that the statute presumes that an alien who is
eligible for TPS already has been admitted to the United
States. See Sanchez v. Sec’y U.S. Dep’t of Homeland Sec.,
967 F.3d 242, 246 (3rd Cir. 2020), aff’d sub nom. Sanchez,
141 S. Ct. at 1815. Accordingly, a conclusion that TPS
constitutes an admission under the cancellation statute
contradicts the statutory text.
Moreover, the TPS statute states that “the period of such
status shall not be counted as a period of physical presence
in the United States for purposes of § 1229b(a) of this title,
unless the Attorney General determines that extreme
hardship exists.” See 8 U.S.C. § 1254a(e) (emphasis added).
Although Hernandez seeks to use his TPS to establish the
HERNANDEZ V. GARLAND 15
cancellation statute’s admission requirement, not its
residence requirement, this language indicates that TPS is a
disfavored way to establish any of the cancellation-of-
removal requirements. See id. Additionally, as discussed
above, notably absent from the statute’s list of benefits is
admission. See generally id. § 1254a(f); see also Bates v.
United States, 522 U.S. 23, 29 (1997) (declining to “read[]
words or elements into a statute that do not appear on its
face”); In re H-G-G-, 27 I. & N. Dec. 617, 626 (Admin. App.
Off. 2019) (observing that the TPS statute provided many
benefits but did “not provide for the inspection, admission,
or parole of an alien, as the terms are entirely absent”).
Finally, the statute requires that an alien must be present
in the United States to be eligible for TPS. See 8 U.S.C.
§ 1254a(c)(1)(A)(i). In contrast, the statutory definition of
admission requires an entry into the United States and
inspection by an immigration officer. See 8 U.S.C.
§ 1101(a)(13)(A). These requirements are contradictory—
an alien outside the United States cannot receive TPS status
and an alien inside the United States cannot cross the border.
This weighs against concluding that a grant of TPS satisfied
the admission requirement for cancellation.
Turning specifically to the LPR-cancellation statute’s
seven-year residency requirement, the plain language of this
provision also supports our holding that Section 1101(a)’s
definition of admission controls whether an alien is admitted
for purposes of cancellation. See Appling, 138 S. Ct. at 1759.
An alien must have resided continually in the United States
“after having been admitted in any status.” 8 U.S.C.
§ 1229b(a). The “admission in any status” requirement
focuses on admission statuses, not on a unique definition of
admission based on an assessment of the benefits conferred
by an alien’s lawful status. See Bates, 522 U.S. at 29. This
16 HERNANDEZ V. GARLAND
makes sense given the numerous statuses under which an
alien can gain lawful admission to the United States—for
example, family-sponsored statuses, employment-based
statuses, refugees, and special agricultural workers. See, e.g.,
8 U.S.C. §§ 1151(c)–(d), 1157, and 1160. In sum, “in any
status” refers to the various ways that an alien may be
admitted to the United States.
For all these reasons, we hold that receiving TPS is not
an admission to the United States. Therefore, because
Hernandez initially entered the United States unlawfully, he
was not “admitted” until he became a lawful permanent
resident in 2010. Accordingly, Hernandez cannot satisfy the
requirement that he “reside[] in the United States
continuously for 7 years after having been admitted in any
status, 8 U.S.C. § 1229b(a), and he is not eligible for
cancellation of removal.
B. Asylum
An alien who has been convicted of a “particularly
serious crime” is ineligible for asylum. 8 U.S.C.
§ 1158(b)(2)(B)(i). The question here is whether
Hernandez’s 2016 domestic-violence conviction was a
particularly serious crime. Because the BIA relied on the IJ’s
reasoning in determining that Hernandez’s conviction was
particularly serious, “we review both the IJ’s and the BIA’s
decisions.” Alanniz, 924 F.3d at 1065.
In determining whether a crime is particularly serious
such that it bars an alien from receiving asylum, the IJ and
BIA must conduct a case-specific, factual analysis that
considers 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
HERNANDEZ V. GARLAND 17
danger to the community.” Flores-Vega v. Barr, 932 F.3d
878, 884 (9th Cir. 2019) (quoting In re Frentescu, 18 I. &
N. Dec. 244, 247 (BIA 1982)); see 8 U.S.C.
§§ 1231(b)(3)(B)(ii), 1252(a)(2)(C). Hernandez argues that
the agency applied an improper legal standard when it
determined that his 2016 domestic-violence conviction was
a particularly serious crime by considering the cumulative
effect of his three domestic-violence convictions, instead of
considering his third conviction in 2016 alone. We disagree.
The record establishes that the IJ and BIA based their
particularly-serious-crime determination specifically on
Hernandez’s 2016 domestic-violence conviction. For
example, the IJ concluded that Hernandez’s “March 2, 2016
conviction . . . is particularly serious” and that “his third
conviction is particularly serious in nature.” And the BIA
recognized that the IJ’s particularly-serious-crime finding
was based on Hernandez’s “last domestic violence
conviction,” and it likewise concluded that his “third
conviction for domestic violence in a little over a year was
‘particularly serious.’” These specific references to
Hernandez’s third domestic-violence conviction make clear
that the BIA did not hold that all three convictions,
considered collectively, constituted a particularly serious
crime. Rather, the agency held only that the third conviction
was particularly serious in light of the previous convictions.
See Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir. 2011)
(en banc) (distinguishing between a conclusion that “three
convictions, when viewed cumulatively, rise to the level of a
particularly serious crime” and that “one of the
convictions—presumably the third—rises to the level of a
particularly serious crime in light of Delgado’s two earlier
convictions”).
18 HERNANDEZ V. GARLAND
We need not address whether the BIA’s consideration of
Hernandez’s prior convictions in deciding that his third
conviction was particularly serious was proper because
Hernandez did not “specifically and distinctly” argue that
this was error in his opening brief. Velasquez-Gaspar v.
Barr, 976 F.3d 1062, 1065 (9th Cir. 2020). Most of the
relevant portion of his brief focuses on his mistaken
argument that the agency considered his convictions
cumulatively. To the extent Hernandez challenges the
agency’s ability to give any consideration to his prior
convictions in concluding that his third conviction was
particularly serious, he did so only in a single sentence, and
without “coherently develop[ing]” the argument. See United
States v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997).
Therefore, to the extent Hernandez raised this issue at all, it
is forfeited. See id.
PETITION FOR REVIEW DENIED.