Anthony Alphonsus v. Eric Holder, Jr. , 705 F.3d 1031 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY ALOYSIUS ALPHONSUS, No. 10-73298
Petitioner,
Agency No.
v. A070-942-161
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 8, 2012—Pasadena, California
Filed January 18, 2013
Before: Harry Pregerson, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Graber
2 ALPHONSUS V . HOLDER
SUMMARY*
Immigration
The panel granted in part and denied in part a petition for
review of the Board of Immigration Appeals’ denial of an
application for withholding of removal and protection under
the Convention Against Torture to a native and citizen of
Bangladesh.
The panel held that it had jurisdiction to review the
Board’s particularly serious crime determination under
8 U.S.C. § 1252(a)(2)(D) because petitioner’s challenges
were premised on constitutional and legal considerations.
The panel rejected petitioner’s facial constitutional challenge
to the particularly serious crime statute, but held that the
Board abused its discretion in concluding that petitioner’s
conviction for resisting arrest, in violation of Cal. Penal Code
§ 69, constituted a particularly serious crime, because the
Board failed to adequately explain how the result in this case
fits within the statutory language or any current framework
created by Board precedent. The panel remanded for further
consideration and explanation of the particularly serious
crime issue.
The panel held that petitioner failed to establish a clear
probability of torture in Bangladesh due to his Christian
religion.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALPHONSUS V . HOLDER 3
Judge Graber dissented from the portion of the majority
opinion rejecting the Board’s rationale that petitioner’s crime
was particularly serious because it created a meaningful risk
of harm to others. Judge Graber concurred as to the other
parts of the opinion, and the result. Judge Graber also wrote
separately to suggest that the court should reconsider en banc
its exception to 8 U.S.C. § 1252(a)(2)(C)’s jurisdiction
stripping provisions for aggravated felons where the Board
denied CAT relief on the merits.
COUNSEL
Matthew L. Hoppock, Dunn & Davison, LLC, Kansas City,
Missouri, pro bono counsel for Petitioner.
Tony West, Assistant Attorney General, Civil Division; Terri
J. Scadron, Assistant Director; and Corey L. Farrell (argued),
Attorney, United States Department of Justice, Washington,
D.C., for Respondent.
OPINION
BERZON, Circuit Judge:
Our case concerns the “particularly serious crime”
concept embodied in our immigration statutes, recently the
subject of an extensive opinion by an en banc panel of this
Court. See Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011)
(en banc). After deciding various other issues, Delgado
remanded the case to the Board of Immigration Appeals
(“BIA” or “Board”), concluding that the BIA had not
adequately explained why the crime in that case fit into the
4 ALPHONSUS V . HOLDER
“particularly serious crime” category and therefore barred
withholding of removal relief (and asylum relief, not here at
issue) for the otherwise removable petitioner in that case. We
reach a similar result here, remanding after reviewing in some
detail the BIA’s “particularly serious crime” precedents and
determining that the Board has not adequately explained how
the result in this case fits within any current framework
created by those precedents.
More specifically, Anthony Aloysius Alphonsus petitions
for review of a BIA decision ordering him removed to his
native Bangladesh. The BIA affirmed the immigration
judge’s (“IJ”) determination that Alphonsus is ineligible for
withholding of removal and withholding under the
Convention Against Torture (“CAT”), because his conviction
for resisting arrest constitutes a particularly serious crime.
The Board also affirmed the IJ’s conclusion that Alphonsus
would not likely be tortured if returned to Bangladesh and is
ineligible for deferral of removal under CAT. Alphonsus
challenges the BIA’s determination that he was convicted of
a particularly serious crime and its conclusion that he is not
likely to be tortured in Bangladesh. Because the Board has
not adequately explained its reasons for designating
Alphonsus’s conviction a particularly serious crime, we grant
the petition with respect to the particularly serious crime
determination and remand to the BIA for an appropriate
explanation. As to Alphonsus’s CAT claim for deferral of
removal, we deny the petition.
I. Background
Alphonsus is a native and citizen of Bangladesh. Around
1976 or 1977, Muslims in Bangladesh started attacking
ALPHONSUS V . HOLDER 5
Alphonsus on account of his Christian beliefs.1 The first
incident occurred when Alphonsus was roughly sixteen years
old. Several Muslims beat him severely, threatened him, and
threw him off a bridge. As a result of the fall, Alphonsus
broke his leg and had to go to the hospital. Alphonsus fled to
India and stayed there for about a year. After he returned to
Bangladesh, the beatings resumed. Alphonsus made several
reports to the police; they only made fun of him, spat on him,
or chased him away.
Around 1987, a group of Muslims kidnaped Alphonsus
and took him to an undisclosed location; there they beat him,
hit him with a machete, and threatened to kill him. Roughly
two months later, Alphonsus was beaten and stabbed in the
hand. Around this time, several of Alphonsus’s friends were
killed on account of their Christian beliefs.
At that point, Alphonsus decided to seek refuge in the
United States. He was admitted as a nonimmigrant on
February 24, 1988, and adjusted his status to lawful
permanent resident several years later. When he last spoke
with his family members in Bangladesh, around 1997, they
told him that the people who had threatened him were still
looking for him.
Before the events at issue in this case, Alphonsus had
been convicted of several offenses, including petty theft,
driving under the influence, and injury of a spouse. Two
months after being paroled on a prior conviction, Alphonsus
shoplifted about $131 of merchandise from a Rite-Aid. As
1
Neither the BIA nor the IJ made an adverse credibility finding. W e
therefore assume the truth of Alphonsus’s factual contentions. See Cole
v. Holder, 659 F.3d 762, 770 (9th Cir. 2011).
6 ALPHONSUS V . HOLDER
Alphonsus left the store, a police officer ordered him to stop,
but he ran instead. According to a government-submitted
police report, Alphonsus ran through traffic, forcing vehicles
to stop suddenly to avoid striking him. A police officer on
motorcycle approached Alphonsus and ordered him to stop
running, but Alphonsus continued to flee. Dismounting his
motorcycle, the officer ran after Alphonsus, who stopped and
“presented his body in a fighting type stance, even after being
told numerous times by [the officer] to lay on the ground.”
The officer thereupon grabbed hold of Alphonsus’s shirt, but
Alphonsus struggled, causing the officer to lose hold of the
shirt. When the officer again tried to grab Alphonsus and
“assist him to the ground,” Alphonsus pushed the officer’s
upper body with both hands, causing the officer to land in “a
medium sized flower bed.”
The officer regained his balance and resumed the chase.
Once again, Alphonsus darted through traffic, causing
vehicles to stop suddenly. Drawing his taser, the officer
issued several commands for Alphonsus to stop. Eventually,
Alphonsus turned and raised his hands in what seemed to be
“another fighting stance,” but the officer successfully
deployed the taser, causing Alphonsus to fall to the ground.
He was taken into custody shortly thereafter.
Alphonsus was convicted of petty theft with priors, in
violation of California Penal Code § 666, and resisting an
executive officer, in violation of California Penal Code § 69.2
2
California Penal Code § 69 states: “Every person who attempts, by
means of any threat or violence, to deter or prevent an executive officer
from performing any duty imposed upon such officer by law, or who
knowingly resists, by the use of force or violence, such officer, in the
performance of his duty, is punishable by a fine not exceeding ten
ALPHONSUS V . HOLDER 7
He was sentenced to sixteen months’ imprisonment on each
count, to run concurrently.
After Alphonsus’s release, the Department of Homeland
Security (“DHS”) initiated removal proceedings. Because
Alphonsus had two convictions for petty theft with priors, the
government charged him with removability under 8 U.S.C.
§ 1227(a)(2)(A)(ii) as an alien who has been convicted of two
crimes of moral turpitude after admission, and under
§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated
felony, specifically a theft or burglary offense.3 Alphonsus
applied for asylum, withholding of removal, and protection
under CAT. The IJ sustained both charges of removability
and determined that Alphonsus’s aggravated felony
conviction renders him ineligible for asylum.
As to the application for relief from removal, the IJ
explicitly declined to find that Alphonsus’s conviction for
resisting arrest constitutes an aggravated felony crime of
violence. But he held that the resisting arrest conviction does
constitute a “particularly serious crime,” rendering Alphonsus
ineligible for withholding of removal. In so holding, the IJ
made two points. First, he stated: “[O]n looking at the
elements of this crime, the facts and circumstances that gave
rise to the crime, from the police report, the respondent’s
testimony, this Court is satisfied that the very nature of this
type of crime, resisting an executive officer in the
thousand dollars ($10,000), or by imprisonment pursuant to subdivision
(h) of Section 1170, or in a county jail not exceeding one year, or by both
such fine and imprisonment.”
3
DHS did not assert that Alphonsus’s theft offenses constitute
particularly serious crimes.
8 ALPHONSUS V . HOLDER
performance of his lawful duties, is just exactly the type of
crime that makes [Alphonsus] a danger to the community.
This is a particularly serious crime.” Second, the IJ added:
“[B]ased upon that analysis, and taking into consideration the
Government’s analysis that this is the type of a crime that not
only is a crime against the officer, but it is a crime against the
orderly pursuit of justice in the United States by its
commission, that it also qualifies as a particularly serious
crime.”
With respect to Alphonsus’s CAT claim, the IJ reviewed
Alphonsus’s testimony and the documentary evidence in the
record. Relying on the documentary evidence, including the
country reports submitted by both Alphonsus and the
government, the IJ found that Alphonsus had not shown that
he would more likely than not be persecuted with government
acquiescence and, accordingly, denied Alphonsus’s
application for deferral of removal under CAT.
Alphonsus appealed to the BIA, challenging the IJ’s
conclusions that he is ineligible for withholding of removal
and protection under CAT. A divided panel of the BIA
affirmed.
The BIA agreed with the IJ’s finding that Alphonsus’s
crime “was not only a crime against the officer, but ‘a crime
against the orderly pursuit of justice in the United States.’”
The Board further stated that Alphonsus’s actions “created a
meaningful risk of harm to others and to the officer by the
manner in which he tried to escape arrest.” Board Member
Linda Wendtland dissented in part, stating: “Although the
conduct of which [Alphonsus] was convicted was
reprehensible, it did not rise to a level sufficiently serious to
bar him from withholding of removal.”
ALPHONSUS V . HOLDER 9
As for Alphonsus’s CAT claim, the BIA found that the IJ
“aptly surveyed the country conditions evidence submitted by
[Alphonsus].” Agreeing with the IJ’s determination that the
Bangladeshi government is making an effort to improve
religious harmony in the country, the Board accordingly
concluded that “the record is insufficient to demonstrate that
[Alphonsus] is likely to be tortured by the government or by
private actors with the acquiescence of governmental
authorities given his status as a Pentecostal.”
II. Jurisdiction
The government argues that the Immigration and
Nationality Act’s (“INA”) bar to review for criminal aliens,
8 U.S.C. § 1252(a)(2)(C), deprives us of jurisdiction to
review Alphonsus’s challenges to the BIA’s decision, as
Alphonsus was ordered removed because of convictions for
crimes involving moral turpitude and an aggravated felony.
We need not decide whether the bar applies to Alphonsus.
See, e.g., Bromfield v. Mukasey, 543 F.3d 1071, 1075–76 &
n.4 (9th Cir. 2008). Even if it did, that circumstance would
not deprive us of jurisdiction over either of Alphonsus’s
challenges. Alphonsus’s challenges are premised on
constitutional and legal considerations and are not fact-based.
Compare Pechenkov v. Holder, No. 08-73287, 2012 WL
5995430, at *4 (9th Cir. Dec. 3, 2012). We therefore have
jurisdiction over those challenges to the Board’s
determination that Alphonsus committed a particularly
serious crime, pursuant to 8 U.S.C. § 1252(a)(2)(D). See
Anaya-Ortiz v. Holder, 594 F.3d 673, 676, 679–80 (9th Cir.
2010). We also have jurisdiction over Alphonsus’s CAT
challenge, because the IJ did not rely on Alphonsus’s
conviction in denying deferral of removal under CAT but
instead denied relief on the merits. See Pechenkov, 2012 WL
10 ALPHONSUS V . HOLDER
5995430, at *4; Morales v. Gonzales, 478 F.3d 972, 980 (9th
Cir. 2007).4
III. Withholding of Removal
Alphonsus raises two principal challenges to the Board’s
particularly serious crime determination: (1) that the
particularly serious crime bar is unconstitutionally vague; and
(2) that the BIA’s application of the particularly serious crime
bar to this case was arbitrary and capricious, because
inadequately explained. We address each contention in turn.
Before doing so, we begin by surveying the history of the
particularly serious crime bar, as doing so illuminates our
later discussions of Alphonsus’s specific arguments.
A. History of the Particularly Serious Crime Bar
Both the withholding of removal obligation and the
particularly serious crime exception to that obligation trace
their origins to Article 33 of the 1951 United Nations
Convention Relating to the Status of Refugees, 19 U.S.T.
5269, 189 U.N.T.S. 150 (“the Convention”). Article 33(1) of
the Convention established the obligation not to remove an
alien to a country where he is likely to face persecution on
account of his race, religion, nationality, membership in a
particular social group, or political opinion.5 Article 33(2), in
4
The government concedes that our precedent forecloses a jurisdictional
challenge to the examination of Alphonsus’s CAT claim in this case and
raises the criminal alien review bar in this respect only to preserve the
challenge.
5
Article 33(1) states: “No Contracting State shall expel or return
(‘refouler’) a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his
ALPHONSUS V . HOLDER 11
turn, enumerates two exceptions to the withholding of
removal obligation established in the previous paragraph: (1)
a danger to national security exception; and (2) a particularly
serious crime exception.6 Both the duty of nonremoval and
the exceptions to that duty were adopted by the United States
when it acceded to the 1967 Protocol Relating to the Status of
Refugees, 19 U.S.T. 62223, 606 U.N.T.S. 267 (“the
Protocol”), which incorporates Article 33 of the Convention.
See Delgado, 648 F.3d at 1100.
Congress subsequently passed the Refugee Act of 1980
(“the 1980 Act”) to bring United States refugee law into
conformance with the nation’s treaty obligations under the
Protocol. See Barapind v. Reno, 225 F.3d 1100, 1106 (9th
race, religion, nationality, membership of a particular social group or
political opinion.”
6
Article 33(2) provides: “The benefit of the [withholding of removal]
provision may not . . . be claimed by a refugee whom there are reasonable
grounds for regarding as a danger to the security of the country in which
he is, or who, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that country.”
Although neither the Protocol nor the Convention defines the term
“particularly serious crime,” one academic leading commentator on the
Convention suggested that only “clearly antisocial” crimes
“demonstrat[ing] a complete or near complete lack of social and moral
inhibitions” may appropriately fall within the “particularly serious crime”
bar contained in Article 33(2). Atle Grahl-Madsen, Commentary on the
Refugee Convention, 1951, art. 33 cmt. 10 (1997). He provides, as
examples of such crimes: “the blowing up of a passenger airplane in order
to collect life insurance” or “wanton killing in a public place.” Id. In INS
v. Cardoza-Fonseca, the Supreme Court referred to Professor Grahl-
Madsen as a “leading authority” and invoked his analysis. See 480 U.S.
421, 431 (1987) (citing 1 A. Grahl-Madsen, The Status of Refugees in
International Law 180 (1966)).
12 ALPHONSUS V . HOLDER
Cir. 2000). The 1980 Act amended § 243(h) of the INA to
read, in relevant part:
(1) The Attorney General shall not deport
or return any alien (other than an alien
described in section 241(a)(19)) to a country
if the Attorney General determines that such
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.
(2) Paragraph (1) shall not apply to any
alien if the Attorney General determines
that—,
(A) the alien ordered, incited, assisted,
or otherwise participated in the persecution of
any person on account of race, religion,
nationality, membership in a particular social
group, or political opinion;
(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;
(C) there are serious reasons for
considering that the alien has committed a
serious nonpolitical crime outside the United
States prior to the arrival of the alien in the
United States; or
ALPHONSUS V . HOLDER 13
(D) there are reasonable grounds for
regarding the alien as a danger to the security
of the United States.
Pub. L. No. 96-212, § 203(e), 94 Stat. 102, 107 (1980)
(emphasis added).
Matter of Frentescu, the BIA’s seminal decision
interpreting the meaning of “particularly serious crime” under
the 1980 Act, observed that neither the Act nor the Protocol
nor the Handbook on Procedures and Criteria for
Determining Refugee Status (Geneva, 1979) (“the
Handbook”) defined the term. 18 I. & N. Dec. 244, 245–46
(B.I.A. 1982).7 The BIA pointed out, however, that “the
specific language chosen by Congress reflects that a
‘particularly serious crime’ is more serious than a ‘serious
nonpolitical crime,’”8 and referred to the definition of
“serious nonpolitical crime” found in the Handbook:
What constitutes a “serious” non-political
crime for the purposes of this exclusion clause
is difficult to define, especially since the term
7
The Handbook, which is issued by the United Nations High
Commission for Refugees, “provides significant guidance in construing
the Protocol, to which Congress sought to conform.” Cardoza-Fonseca,
480 U.S. at 439 n.22.
8
Like the particularly serious crime bar, the serious non-political crime
bar derives from the Convention, Article 1(F)(b) of which provides that
the Convention’s provisions— including the protection of withholding of
removal— “shall not apply to any person with respect to whom there are
serious reasons for considering that . . . [h]e has committed a serious non-
political crime outside the country of refuge prior to his admission to that
country as a refugee.”
14 ALPHONSUS V . HOLDER
“crime” has different connotations in different
legal systems. In some countries the word
“crime” denotes only offences of a serious
character. In other countries it may comprise
anything from petty larceny to murder. In the
present context, however, a “serious” crime
must be a capital crime or a very grave
punishable act. Minor offences punishable by
moderate sentences are not grounds for
exclusion under Article 1 F(b) even if
technically referred to as “crimes” in the penal
law of the country concerned.
A refugee committing a serious crime in
the country of refuge is subject to due process
of law in that country. In extreme cases,
Article 33 paragraph 2 of the Convention
permits a refugee’s expulsion or return to his
former home country if, having been
convicted by a final judgment of a
“particularly serious” common crime, he
constitutes a danger to the community of his
country of refuge.
Id. at 245–46 (quoting Handbook ¶¶ 155, 154) (emphases
added).
Frentescu neither adopted a precise definition of what
constitutes a particularly serious crime nor set forth any
comprehensive list of crimes falling within the definition. Id.
at 247. The Board instead concluded that, although certain
crimes are inherently “particularly serious,” “the record in
most proceedings will have to be analyzed on a case-by-case
basis” and identified several “factors” relevant to that inquiry,
ALPHONSUS V . HOLDER 15
including: “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.” Id. The BIA further clarified that
“[c]rimes against persons are more likely to be characterized
as ‘particularly serious crimes,’” but cautioned that “there
may be instances where crimes (or a crime) against property
will be considered as such crimes.” Id. Subsequently, in
Matter of Carballe, 19 I. & N. Dec. 357, 359–60 (B.I.A.
1986), the Board determined that the statutory particularly
serious crime provision does not require that, in addition to
the determination that the alien has been convicted of a
particularly serious crime, the government make an
independent determination that the alien represents a future
danger to the community. See also 8 C.F.R. § 1208.16(d)(2);
Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987).
But Carballe accepted and reiterated Frentescu’s reliance on
dangerousness as the sine qua non of a particularly serious
crime, stating that the “essential key” to “determining
whether a conviction is for [a particularly serious crime]” is
“whether the nature of the crime is one which indicates that
the alien poses a danger to the community.” 19 I. & N. Dec.
at 360; see also Hamama v. INS, 78 F.3d 233, 240 (6th Cir.
1996).
Section 515(a)(2) of the Immigration Act of 1990 (“the
1990 Act”) obviated the need for a case-specific
Frentescu/Carballe analysis for aggravated felonies by
amending § 243(h)(2) of the INA to state that any “alien who
has been convicted of an aggravated felony shall be
considered to have committed a particularly serious crime.”
Pub. L. No. 101-649, 104 Stat. 4978, 5053 (1990); see
Mosquera-Perez v. INS, 3 F.3d 553, 557 (1st Cir. 1993). The
16 ALPHONSUS V . HOLDER
agency “continued to adjudicate [non-aggravated felony]
particularly serious crimes on a case-by-case basis.”
Delgado, 648 F.3d at 1104; see Matter of B-, 20 I. & N. Dec.
427, 430–31 (B.I.A. 1991).
At the time Congress passed the 1990 Act, only a small
number of especially grave offenses had been designated
“aggravated felonies.” See Pub L. No. 100-690, § 7342, 102
Stat. 4181, 4469–70 (1988 version of the INA) (defining
“aggravated felony” as: “murder; any drug trafficking crime,
. . . or any illicit trafficking in any firearms or destructive
devices”); see also Pub. L. No. 101-649, § 501, 104 Stat.
4978, 5048 (the 1990 Act) (adding money laundering and
crimes of violence for which the term of imprisonment is at
least five years to the list of aggravated felonies). In Matter
of C-, 20 I. & N. Dec. 529, 534 (B.I.A. 1992), the BIA
observed that the relatively short list of aggravated felony
offenses then in existence “cover[ed] the vast majority of
crimes [it] would have previously determined to be
particularly serious crimes.” The BIA further noted,
however:
There will of course continue to be
situations requiring a determination whether
a “particularly serious crime” exists under
Frentescu; such is the case, for example,
where the crime does not technically qualify
as an aggravated felony under the Act based
on the conviction date . . .; the withholding
request precedes November 29, 1990; or,
perhaps, where the crime falls outside the
ALPHONSUS V . HOLDER 17
definition of aggravated felony but should,
under the analysis of Frentescu, be deemed a
particularly serious crime.
Id. at 535 n.3 (emphasis added) (citation omitted).
The definition of “aggravated felony” under the INA did
not, however, remain focused on “very” grave crimes, let
alone on “extreme cases.” See Frentescu, 18 I. & N. Dec. at
246 (quoting Handbook ¶¶ 155, 154). Instead, the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 214 (“AEDPA”), expanded the
definition of “aggravated felony” to encompass a much wider
range of offenses, thereby substantially enlarging the scope
of the particularly serious crime exception through that
exception’s incorporation of all aggravated felonies. As a
result of this expansion, Congress became concerned that
some of the newly designated aggravated felonies “might be
considered less serious than those the Protocol intended to
cover” under the particularly serious crime exception.
Choeum v. INS, 129 F.3d 29, 42 (1st Cir. 1997).9 To address
this concern, § 413(f) of AEDPA amended § 243(h) of the
INA to allow the Attorney General to override the categorical
treatment of aggravated felonies as particularly serious
9
As Senator Kennedy opined when discussing a proposed amendment
to an immigration bill under consideration at the same time as the AEDPA
bill: “[T]o declare an aggravated felon anyone convicted of an offense
involving imprisonment of one year, . . . means that people with fairly
minor offenses would be ineligible to seek withholding of deportation,
[which in many] instances may violate the Refugee Convention.”
Immigration Control and Financial Responsibility Act of 1996: Mark-up
on S. 1664 before the Senate Committee on the Judiciary, 104th Cong., 2d
Sess. 60–61 (1996); see also Matter of Q-T-M-T-, 21 I. & N. Dec. 639,
648 & n.4 (B.I.A. 1996) (en banc).
18 ALPHONSUS V . HOLDER
crimes, “when ‘necessary to ensure compliance with the 1967
United Nations Protocol Relating to the Status of Refugees.’”
Delgado, 648 F.3d at 1104 (citing 110 Stat. at 1269).
Interpreting the relevant AEDPA provisions in Matter of
Q-T-M-T-, 21 I. & N. Dec. 639, 653–54 (B.I.A. 1996) (en
banc), the BIA held that an alien convicted of an aggravated
felony or felonies and sentenced to at least five years of
incarceration was conclusively convicted of a particularly
serious crime and barred from withholding of removal, but
that an alien convicted of an aggravated felony or felonies
and sentenced to an aggregate of less than five years’
imprisonment would be subject only to a rebuttable
presumption that he had been convicted of a particularly
serious crime, barring eligibility for withholding of removal.
In applying this rebuttable presumption analysis, the BIA
emphasized that it would “look to the nature and
circumstances of the crime to determine whether the alien,
having been convicted of that crime, can be said to represent
a danger to the community of the United States.” Id. at 654
(citing Carballe, 19 I. & N. Dec. at 360–61; Frentescu, 18 I.
& N. Dec. 244).
The effect of Matter of Q-T-M-T- was short-lived. A few
months after Congress enacted the override provision of
AEDPA on which Q-T-M-T- rested, the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub L.
No. 104-208, div. C, § 305(a)(3), 110 Stat. 3009-546
(“IIRIRA”), again expanded the list of crimes designated as
aggravated felonies, primarily by reducing, from five years to
one, the minimum penalty necessary for several offenses to
qualify as aggravated felonies. See id. § 321(a)(3), (10), (11).
Along with this additional expansion of the aggravated felony
list, Congress altered the scope of the particularly serious
ALPHONSUS V . HOLDER 19
crime bar by eliminating the categorical designation of
aggravated felonies as particularly serious crimes for
withholding of removal purposes. See Delgado, 648 F.3d at
1104–05; Matter of N-A-M-, 24 I. & N. Dec. 336, 339–40
(B.I.A. 2007). In particular, § 305(a) of the IIRIRA changed
the definition of “particularly serious crime” for withholding
purposes by adding the following paragraph to § 241(b)(3) of
the INA:
For purposes of clause (ii) [establishing the
particularly serious bar], an alien who has
been convicted of an aggravated felony (or
felonies) for which the alien has been
sentenced to an aggregate term of
imprisonment of at least 5 years shall be
considered to have committed a particularly
serious crime. The previous sentence shall
not preclude the Attorney General from
determining that, notwithstanding the length
of sentence imposed, an alien has been
convicted of a particularly serious crime.
110 Stat. at 3009-602 (codified at 8 U.S.C.
§ 1231(b)(3)(B)(iv)). Because the IIRIRA eliminated the
categorical equation of aggravated felonies and particularly
serious crimes, the BIA returned to the Frentescu/Carballe
approach—abandoning the “rebuttable presumption” analysis
of Q-T-M-T- —for aggravated felony convictions involving
aggregate sentences of less than five years’ imprisonment.
See Matter of L-S-, 22 I. & N. Dec. 645, 651 (B.I.A. 1999).
With regard to convictions for crimes other than aggravated
felonies, the Board continued to apply the Frentescu/Carballe
approach. See id. at 651 n.7.
20 ALPHONSUS V . HOLDER
The BIA subsequently held, in Matter of N-A-M-, that
§ 1231(b)(3)(B) does not limit its authority to designate a
non-“aggravated felony” as a particularly serious crime. See
24 I. & N. Dec. at 341; see also Delgado, 648 F.3d at
1103–05 (extending Chevron deference to this interpretation
of § 1231(b)(3)(B)). In describing its approach to
determining whether a given crime is particularly serious, the
Board stated that it continues to apply the Frentescu standard,
with two significant modifications. See N-A-M-, 24 I. & N.
Dec. at 342. First, the BIA explained that, “[a]s set forth in
Matter of Carballe, the proper focus for determining whether
a crime is particularly serious is on the nature of the crime
and not the likelihood of future serious misconduct.” Id.
(citation omitted). Second, the Board added, “the sentence
imposed is not a dominant factor in determining whether a
conviction is for a particularly serious crime.” Id. at 343
(citing Matter of Y-L-, A-G-, R-S-R-, 23 I. & N. Dec. 270,
273–74, 277–78 (Att’y Gen. 2002)).
As demonstrated by the BIA’s continued reliance on
Carballe, N-A-M- did not countenance any change in the
Board’s longstanding focus on dangerousness as the
“essential key” to determining whether an alien’s conviction
constitutes a conviction for a particularly serious crime.
Rather, N-A-M- properly distinguished “dangerousness,” the
pivotal standard by which particularly serious crimes are
judged, from the list of factors the government may consider
in determining whether that standard is met. See id. at
341–43. Thus, in Delgado, we formulated the currently
operative legal standard as follows: “[A] crime is particularly
serious if the nature of the conviction, the underlying facts
and circumstances and the sentence imposed justify the
presumption that the convicted immigrant is a danger to the
community.” 648 F.3d at 1107 (emphasis added) (citing
ALPHONSUS V . HOLDER 21
N-A-M-, 24 I. & N. Dec. at 342; Carballe, 19 I. & N. Dec. at
360).
B. Vagueness
Against this background, we first evaluate Alphonsus’s
vagueness challenge. Alphonsus raises a facial constitutional
challenge to 8 U.S.C. § 1231(b)(3)(B)(ii), maintaining that
the provision is unconstitutionally vague because the statute
provides no definition of “particularly serious crime.” “[T]he
void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S.
352, 357 (1983). Although § 1231(b)(3)(B)(ii) is not a
criminal statute, we entertain Alphonsus’s vagueness
challenge because of the harsh consequences attached to a
particularly serious crime determination and the attendant
denial of withholding of removal. See Jordan v. De George,
341 U.S. 223, 230–31 (1951) (reviewing a vagueness
challenge to the “crime involving moral turpitude”
designation, “in view of the grave nature of deportation”).
“A facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the [statute] would be valid.” United States v.
Salerno, 481 U.S. 739, 745 (1987).10 Thus, to succeed on a
10
There are two exceptions to this rule. In the First Amendment
context, the overbreadth doctrine “allows a plaintiff ‘to challenge a statute
not because their own rights of free expression are violated, but because
of a judicial prediction or assumption that the statute’s very existence may
22 ALPHONSUS V . HOLDER
facial vagueness challenge under the Fifth Amendment’s Due
Process Clause, the challenger must “prove that the
enactment is vague ‘not in the sense that it requires a person
to conform his conduct to an imprecise but comprehensible
normative standard, but rather in the sense that no standard of
conduct is specified at all.’” Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982).
Put another way, he must demonstrate that the “provision
simply has no core.” Id. (internal quotation marks omitted).11
In evaluating whether a statute is facially vague, we take into
account the Board’s binding administrative constructions of
the relevant provision. See, e.g., Hess v. Bd. of Parole &
Post-Prison Supervision, 514 F.3d 909, 914 (9th Cir. 2008).
cause others not before the court to refrain from constitutionally protected
speech or expression.’” Nunez by Nunez v. City of San Diego, 114 F.3d
935, 949 (9th Cir. 1997) (quoting Broadrick v. Oklahoma, 413 U.S. 601,
612 (1973)). Additionally, “a facial challenge to an abortion statute will
succeed where, ‘in a large fraction of the cases in which [the statute] is
relevant, it will operate as a substantial obstacle to a woman’s choice to
undergo an abortion’ (emphasis added).” Planned Parenthood of Idaho,
Inc. v. Wasden, 376 F.3d 908, 920–21 (9th Cir. 2004) (alteration in
original) (quoting Planned Parenthood of Se. Penn. v. Casey, 505 U.S.
833, 895 (1992)). Outside the First Amendment and abortion contexts, we
have not recognized any other exceptions to Salerno’s “no set of
circumstances” standard for facial challenges, including facial challenges
premised on vagueness. See S.D. Myers, Inc. v. City & Cnty. of San
Francisco, 253 F.3d 461, 467 (9th Cir. 2001).
11
In City of Chicago v. Morales, a Supreme Court plurality cast some
doubt on the “no set of circumstances” requirement for facial challenges
under the void-for-vagueness doctrine. 527 U.S. 41, 55 n.22 (1999). W e,
however, continue to apply the “no set of circumstances” standard “[u]ntil
a majority of the Supreme Court directs otherwise.” Hotel & Motel Ass’n
of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir. 2003).
ALPHONSUS V . HOLDER 23
Contrary to Alphonsus’s submission, § 1231(b)(3)(B)(ii)
most certainly has a core set of criminal convictions to which
it applies. First, and most importantly, the statutory text
indicates that the key to determining whether a crime is
particularly serious is whether the nature of the crime shows
that the alien poses a danger to the community of the United
States. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA has
interpreted the statute accordingly, emphasizing that harm to
persons is the usual requisite danger, while leaving open the
possibility that some crimes involving injury to property may
also be included. See L-S-, 22 I. & N. Dec. at 655–56;
Carballe, 19 I. & N. Dec. at 360; Frentescu, 18 I. & N. Dec.
at 247.
Second, the statute incorporates by reference numerous
specific examples of the sort of convictions likely to result in
a particularly serious crime determination. Title 8 U.S.C.
§ 1231(b)(3)(B)(iv) states that “an alien who has been
convicted of an aggravated felony (or felonies) for which the
alien has been sentenced to an aggregate term of
imprisonment of at least 5 years shall be considered to have
committed a particularly serious crime.”
Section 1101(a)(43), in turn, specifies which generic crimes
qualify as aggravated felonies. The aggravated felony
definitions serve both to delineate the group of per se
particularly serious crimes and to suggest the types of crimes
most likely to be covered by the statute even when the
aggregate sentence is less than five years.
Third, the BIA has specified at least one category of
offenses—drug trafficking crimes—which will almost always
be particularly serious crimes for withholding purposes. See
Matter of Y-L-, 23 I. & N. Dec. at 276.
24 ALPHONSUS V . HOLDER
In sum, § 1231(b)(3)(B) does cover an ascertainable core
set of convictions, and the BIA’s interpretive glosses have
added some specificity as well. See United States v.
Sandsness, 988 F.2d 970, 971 (9th Cir. 1993) (rejecting a
facial vagueness challenge to a statute proscribing the sale of
drug paraphernalia in interstate commerce, because the
statute “lists 15 different examples of items which would be
considered ‘drug paraphernalia’” and “sets out eight factors
to be considered in characterizing items as ‘drug
paraphernalia’”). There is, to be sure, “doubt as to the
adequacy of [the particularly serious crime] standard in less
obvious cases,” as we demonstrate later. Jordan, 341 U.S. at
232. But this circumstance “does not render that standard
unconstitutional for vagueness” on its face. Id. Rather,
Alphonsus’s facial challenge fails because there is an
ascertainable group of circumstances as to which the statute,
as interpreted, provides “an imprecise but comprehensible
normative standard . . . rather [than] . . . no standard . . . at
all.” Vill. of Hoffman Estates, 455 U.S. at 495 n.7.12
C. The BIA’s Particularly Serious Crime Determination
“[T]he BIA’s determination that an alien was convicted
of a particularly serious crime is a discretionary decision, and
12
Alphonsus does not raise an as-applied vagueness challenge to
§ 1231(b)(3)(B)(ii) in his opening brief, nor does his reply brief object to
the government’s characterization of his arguments as a facial attack.
Alphonsus has therefore waived any as-applied challenge. See Rizk v.
Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). Because our conclusion
that the statute is not vague in at least some contexts suffices to resolve
Alphonsus’s facial challenge, we do not address whether the statute would
be unconstitutionally vague as applied to the circumstances in this case.
See United States v. Inzunza, 638 F.3d 1006, 1019 (9th Cir. 2011), cert.
denied, 132 S. Ct. 997 (2012).
ALPHONSUS V . HOLDER 25
we review such decisions under an abuse-of-discretion
standard.” Arbid v. Holder, No. 09-73211, 2012 WL
5458045, at *4 (9th Cir. Nov. 9, 2012) (per curiam). Under
this standard of review, “we may disturb the BIA’s ruling if
the BIA acted arbitrarily, irrationally, or contrary to law.” Id.
at *5 (internal quotation marks omitted).
It is a well-settled principle of administrative law that an
agency abuses its discretion if it “clearly departs from its own
standards.” NLRB v. Safeway Stores, Inc., 622 F.2d 425, 428
(9th Cir. 1980). “We generally expect agencies to deal
consistently with the parties or persons coming before
them. . . . Thus, while an agency may announce new
principles in an adjudicatory proceeding, it may not depart,
sub silentio, from its usual rules of decision to reach a
different, unexplained result in a single case.” California
Trout v. FERC, 572 F.3d 1003, 1022–23 (9th Cir. 2009)
(internal quotation marks omitted). See also NLRB v. Nat’l
Med. Hosp. of Compton, 907 F.2d 905, 908 (9th Cir. 1990);
Shaw’s Supermarkets, Inc. v. NLRB, 884 F.2d 34, 36 (1st Cir.
1989) (Breyer, J.) (“The law that governs an agency’s
significant departure from its own prior precedent is clear.
The agency cannot do so without explicitly recognizing that
it is doing so and explaining why.”).
More specifically, reviewing immigration determinations
for an abuse of discretion, we have held that the agency acts
arbitrarily if it treats factually identical cases differently
without providing a reasoned explanation, Israel v. INS,
785 F.2d 738, 741 (9th Cir. 1986); if it includes an improper
factor in its analysis, Yepes-Prado v. INS, 10 F.3d 1363, 1366
(9th Cir. 1993); or if it fails to “indicate how it weighed the
factors involved and how it arrived at its conclusion,” id. at
1370 (internal quotation marks omitted).
26 ALPHONSUS V . HOLDER
As described above, the IJ rested his particularly serious
crime determination on two grounds. First, he stated—after
“looking at the elements of [Alphonsus’s] crime,” as well as
“the facts and circumstances that gave rise to the
crime”—that “the very nature of this type of crime, resisting
an executive officer in the performance of his lawful duties,
is just exactly the type of crime that makes [Alphonsus] a
danger to the community. This is a particularly serious
crime.” He then went on to add: “[B]ased upon that analysis,
and taking into consideration the Government’s analysis that
this is the type of a crime that not only is a crime against the
officer, but it is a crime against the orderly pursuit of justice
in the United States by its commission, that it also qualifies
as a particularly serious crime” (emphases added). The BIA
referenced both rationales in its order affirming the IJ’s
decision, which stated:
As noted by the Immigration Judge,
[Alphonsus’s] crime was not only a crime
against the officer, but ‘a crime against the
orderly pursuit of justice in the United States.’
[Alphonsus’s] actions created a meaningful
risk of harm to others and to the officer by the
manner in which he tried to escape arrest.
Accordingly, we agree that [Alphonsus] is
ineligible for withholding of removal under
241(b)(3) of the Act and for withholding of
removal under the CAT.”
Reviewed for abuse of discretion, the Board’s rationale
suffers from two defects. First, we cannot discern, from the
BIA’s ambiguous statement, the operative rationale of its
particularly serious crime determination. The BIA may have
determined that Alphonsus’s conviction for resisting arrest
ALPHONSUS V . HOLDER 27
constitutes a particularly serious crime because the offense
interfered with the orderly pursuit of justice, or because the
offense created a meaningful risk of harm, or because the
offense both interfered with the orderly pursuit of justice and
created a meaningful risk of harm.13 “Without knowing the
basis of the [BIA’s] decision, we cannot conduct a
meaningful review. We therefore remand to the BIA for a
clear explanation.” Delgado, 648 F.3d at 1108.
Second, as we next explain, the BIA has not adequately
elucidated either rationale for applying the particularly
serious crime bar in this case. On remand, then, the BIA
should not only explain which rationale it is adopting, but
also why that rationale is consistent with the conclusion that
Alphonsus’s conviction constitutes a particularly serious
crime. “In making a discretionary immigration decision, the
agency must indicate how it weighed the factors involved and
how it arrived at its conclusion.” Yepes-Prado, 10 F.3d at
1370 (internal quotation marks and citations omitted).
i. The “Crime Against the Orderly Pursuit of
Justice” Rationale
Of the two posited rationales for designating Alphonsus’s
resisting arrest conviction as a particularly serious crime, we
are less able to understand the meaning of the BIA’s assertion
that the offense is particularly serious because it constitutes
13
The government argues that the Board’s reference to the phrase “was,
at most, a rhetorical flourish” that did not announce a new legal standard.
W e are not so sure. The IJ relied heavily on the government’s proposed
“crime against the orderly pursuit of justice” standard, and the BIA
endorsed that standard when it approvingly quoted the IJ in its opinion.
At any rate, the BIA is free, on remand, to disclaim the “crime against the
orderly pursuit of justice” rationale.
28 ALPHONSUS V . HOLDER
a “crime against the orderly pursuit of justice.” Neither the
IJ nor the BIA explained the significance of that locution in
their respective opinions. The IJ did, however, specifically
note that he expected the reviewing court to reference the
government’s argument to the IJ on this point in explanation
of the IJ’s ruling, and so we will.
The relevant transcript section shows that the government
lawyer made several lengthy speeches during the hearing
regarding the vital role played by California Penal Code § 69
in the community’s “system of ordered liberty.” He argued
that the type of conduct at issue is particularly serious, “[n]ot
because there was any particular danger of the person o[r] the
officer being hurt, if it’s really true that all [Alphonsus] was
doing was fleeing,” but “because it completely defeats the
ability of our society to have any kind of a fair hearing on the
issue of guilt or innocence, and even presents the kind of
public exoneration that those who are innocent are entitled
to.” The government lawyer accordingly suggested that “the
real victim in, actually, a very direct sense in California Penal
Code Section 69 is not so much the individual person of the
victim, so much as it is our entire system of justice. . . .
Because if those who are charged with enforcing the law can
be effectively prevented from carrying out their duties by just
anyone who wishes, then, really, our entire system of justice
quickly breaks down, and all of our society really is
threatened with anarchy.” Shortly after the government
attorney finished speaking, the IJ found Alphonsus’s crime
particularly serious, partly because of “the reasons stated by
the Government attorney.”
As described above, § III.A supra, the BIA’s consistent
practice with respect to its discretionary particularly serious
crime determinations has been to focus on whether the
ALPHONSUS V . HOLDER 29
offense at issue indicates that the alien poses a significant,
nonabstract danger to the community. See Delgado, 648 F.3d
at 1106–07 (citing Frentescu, 18 I. & N. Dec. at 247);
Carballe, 19 I. & N. Dec. at 360). Explaining this standard,
Frentescu observed that “[c]rimes against persons are more
likely to be categorized as ‘particularly serious crimes,’” and
further added that “there may be instances where crimes (or
a crime) against property will be considered as such crimes.”
18 I. & N. Dec. at 247. In subsequent cases, the Board has
often used the “crime against persons” rationale to justify
particularly serious crime determinations. See, e.g., N-A-M-,
24 I. & N. Dec. at 343; L-S-, 22 I. & N. Dec. at 649; In re
L-S-J-, 21 I. & N. Dec. 973, 974–75 (B.I.A. 1997). To our
knowledge, the BIA has never before advanced a “crime
against the orderly pursuit of justice” rationale in support of
its particularly serious crime determinations, even in cases
where such a rationale would seem to apply. In Denis v.
Attorney General of the United States, for example, the BIA
and the Third Circuit held that an alien’s conviction for
tampering with evidence (by hacking up his victim’s body)
constituted a particularly serious crime, not because the
offense interfered with the administration of justice, but
because of the “gruesome brutality” of the alien’s actions and
the use of physical force against his victim’s corpse. See
633 F.3d 201, 216 (3d Cir. 2011).
That an agency changes course in its statutory
interpretation does not, by itself, invalidate its new
conclusion. After all, “the whole point of Chevron
[deference] is to leave the discretion provided by the
ambiguities of a statute with the implementing agency.”
Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996); see
generally Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984). But to do so, an agency must
30 ALPHONSUS V . HOLDER
acknowledge that it is indeed changing course, and it must
provide a reasoned explanation for its change of course.
“Unexplained [agency] inconsistency is . . . a reason for
holding an interpretation to be an arbitrary and capricious
change from agency practice under the Administrative
Procedure Act.” Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 981 (2005); see also 5 U.S.C.
§ 706(2)(A). “[A]n agency changing its course by rescinding
a rule is obligated to supply a reasoned analysis for the
change beyond that which may be required when an agency
does not act in the first instance.” Motor Vehicle Mfrs. Ass’n
of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 42 (1983). The reasoned explanation requirement is a
narrow one, “reserved for rare instances,” but it applies with
full force where, as here, “an agency provides no explanation
at all for a change in policy.” Morales-Izquierdo v. Gonzales,
486 F.3d 484, 493 (9th Cir. 2007) (en banc).14
Moreover, an agency changing course must do so in a
format capable of modifying an earlier interpretation. Here,
an unpublished, non-precedential opinion in this case could
not modify earlier, published precedential opinions even if
adequate reasons were given for the departure. See
Hernandez v. Ashcroft, 345 F.3d 824, 846–47 (9th Cir. 2003).
Thus, if the BIA is to adopt its new “crime against the orderly
pursuit of justice” rationale, it must do so in a precedential
opinion that modifies its earlier limitation of “particularly
serious crimes” to crimes against persons and, in some cases,
against property. See Frentescu, 18 I. & N. Dec. at 247; see
14
Although the IJ’s decision referenced the argumentative justification
posited by the government lawyer in removal proceedings, the BIA’s
decision did not similarly state that it was adopting the government
lawyer’s rationale.
ALPHONSUS V . HOLDER 31
also N-A-M-, 24 I. & N. Dec. at 343; L-S-, 22 I. & N. Dec. at
649; L-S-J-, 21 I. & N. Dec. at 974–75.
One other caveat is in order with regard to the “crime
against the orderly pursuit of justice” category of particularly
serious crimes. The government, during oral argument before
us, strongly suggested that dangerousness is not an essential
touchstone for particularly serious crime determinations.
This assertion contradicts the statutory text, which allows the
Attorney General to deny withholding of removal if the
Attorney General decides that “the alien, having been
convicted by a final judgment of a particularly serious crime
is a danger to the community of the United States.” 8 U.S.C.
§ 1231(b)(3)(B)(ii). As the Board recognized in Carballe,
this phrase demonstrates that “the essential key” to
determining whether a given crime is particularly serious “is
whether the nature of the crime is one which indicates that the
alien poses a danger to the community.” 19 I. & N. Dec. at
360. If the BIA chooses to adopt the “crime against the
orderly pursuit of justice” rationale, it should explain not only
why it is altering its prior precedents, but also how its
interpretation squares with the statutory reference to
“danger.”
Within the parameters just outlined, the BIA is free to
modify the Frentescu/Carballe standard. We do not presume
to proscribe any of the agency’s policy choices. However, if
the agency chooses to rely on the “crime against the orderly
pursuit of justice” rationale, it must explain the basis for that
decision. Additionally, to the extent that the Board chooses
to rely on the “crime against justice” rationale, it should also
explain why resisting one’s own arrest, as Alphonsus did,
qualifies as such a crime. Cf. Matter of Joseph, 22 I. & N.
Dec. 799, 808 (B.I.A. 1999) (en banc) (suggesting that
32 ALPHONSUS V . HOLDER
resisting one’s own arrest would not likely constitute generic
“obstruction of justice” under 8 U.S.C. § 1101(a)(43)(S)).
ii. The “Meaningful Risk of Harm” Rationale
The BIA’s particularly serious crime determination may
also have rested on the observation that Alphonsus’s “actions
created a meaningful risk of harm to others and to the officer
by the manner in which he tried to escape arrest.”
Specifically, the BIA noted that Alphonsus “ran through
traffic to evade arrest, assumed a ‘fighting stance’ with the
police officer, and shoved [the officer] when he tried to place
[Alphonsus] under arrest.” Moreover, the BIA pointed out,
Alphonsus “was tasered by the police officer after not
responding to verbal commands.”15
As far as we are aware, the BIA has never previously
addressed the circumstances under which resisting arrest
15
Alphonsus does not specifically challenge the IJ’s reliance on the
police report. The Board held, in Matter of N-A-M-, that under
§ 1231(b)(3)(B)(ii), “all reliable information may be considered in making
a particularly serious crime determination, including the conviction
records and sentencing information, as well as other information outside
the confines of a record of conviction.” 24 I. & N. Dec. at 342. W e have
deferred to that interpretation. See Anaya-Ortiz, 594 F.3d at 677. We
have not, however, determined either: (1) whether an IJ can credit a police
report, with no live evidence, over the applicant’s denial in testimony of
the facts stated in the report; or (2) the degree to which the IJ and BIA can
rely on the specific facts alleged when those facts go entirely beyond those
needed for conviction of the offense (e.g., if the police report stated that
the defendant murdered the victim, but the defendant was convicted only
for kidnaping), rather than elucidating the manner in which the offense
was committed. Nor do we decide those questions here.
ALPHONSUS V . HOLDER 33
might constitute a particularly serious crime.16 A review of
the Board’s precedential decisions, however, demonstrates
that the “particularly serious crime” designation has generally
been reserved for more grave offenses than the conduct at
issue here. See Delgado, 648 F.3d at 1110 (Reinhardt, J.,
concurring).
In Frentescu, for example, the BIA held that burglary
with intent to commit theft did not constitute a particularly
serious crime, because “there [was] no indication that the
dwelling was occupied or that the applicant was armed; nor
[was] there any indication of an aggravating circumstance.”
18 I. & N. Dec. at 247. Similarly, in L-S-, the Board held that
the applicant’s alien smuggling conviction did not constitute
a particularly serious crime, even though the offense posed
some risk to the alien hidden in the floor of L-S-’s van,
because “there [was] no indication the [applicant] intended to
harm the smuggled alien” and the applicant “did not, in fact,
cause her harm.” 22 I. & N. Dec. at 655–56. Here, similarly,
there has been no finding of intent to harm either the arresting
officer or members of the public, and it appears that in fact no
one was hurt.
In Matter of B-, by contrast, the BIA determined that the
applicant’s aggravated battery conviction for injuring
someone with a shot from a firearm constituted a particularly
16
W e have previously held that resisting arrest may, under some
circumstances, constitute an aggravated felony crime of violence. See
Estrada-Rodriguez v. Mukasey, 512 F.3d 517, 521 (9th Cir. 2007)
(holding that resisting arrest, in violation of Ariz. Rev. Stat. § 13-2508, is
categorically an aggravated felony crime of violence). In this case,
however, the IJ explicitly refused to find that Alphonsus’s conviction for
resisting arrest constitutes an aggravated felony crime of violence, and the
BIA did not do so either.
34 ALPHONSUS V . HOLDER
serious crime. 20 I. & N. Dec. at 429–30. Matter of Garcia-
Garrocho concluded that burglary of a dwelling, during
which the offender is armed with a deadly weapon or causes
injury to another, constitutes a particularly serious crime. 19
I. & N. Dec. 423, 425–26 (B.I.A. 1986). And in N-A-M-, the
Board held that felony menacing involving the use or
threatened use of a deadly weapon is a particularly serious
crime. 24 I. & N. Dec. at 343. Other particularly serious
crime offenses include drug trafficking, Matter of Y-L-, 23 I.
& N. Dec. at 274; possession of child pornography, Matter of
R-A-M-, 25 I. & N. Dec. 657, 662 (B.I.A. 2012); and robbery,
Matter of S-V-, 22 I. & N. Dec. 1306, 1308–09 (B.I.A. 2000)
(en banc), disagreed with on other grounds by Zheng v.
Ashcroft, 332 F.3d 1186, 1194–96 (9th Cir. 2003).
“The BIA acts arbitrarily when it disregards its own
precedents and policies without giving a reasoned explanation
for doing so.” Israel, 785 F.2d at 740. On remand, the BIA
may decide that Alphonsus’s offense more closely resembles
the crimes in B-, Garcia-Garrocho, N-A-M-, etc. than the
offenses in Frentescu and L-S-, but “the Board ought to
explain why he falls on the wrong side of the line—if indeed
he does.” Berhane v. Holder, 606 F.3d 819, 825 (6th Cir.
2010) (discussing the serious non-political crime bar). “The
BIA may not proceed at whim, shedding its grace unevenly
from case to case.” Israel, 785 F.2d at 741 (internal quotation
marks omitted).
Moreover, any such explanation must be consistent with
the statutory text, which indicates that the line must be drawn
so that “particularly serious crimes” are not a major
proportion of crimes generally. That there are two modifiers
to “crimes” so signifies: The crime must be not just any
crime, and not just any serious crime—already a subset of all
ALPHONSUS V . HOLDER 35
crimes—but one that is “particularly serious.” See 8 U.S.C.
§ 1231(b)(3)(B)(ii) (emphasis added).17 “Particularly” in this
context means “in a special or unusual degree,” or “to an
extent greater than in other cases or towards others.” See
Webster’s Third New International Dictionary 1647 (1976).
We also know that a “particularly serious crime” must be
more serious than a serious non-political crime, itself already
a limited category. See Frentescu, 18 I. & N. Dec. at 247; see
also Berhane, 606 F.3d at 824–25. And, as we have noted,
the Board has in fact generally adhered to the notion that only
relatively “grave” crimes are considered “particularly serious
crimes”—but not always, see Delgado, 648 F.3d at 1110–11
(Reinhardt, J., concurring).
As we have twice recently indicated, the BIA has
discretion to exercise its broad authority to determine, on a
case-by-case basis, what constitutes a particularly serious
crime. See Pechenkov, 2012 WL 5995430, at *4; Arbid, 2012
WL 5458045 at *2–3. But we retain authority under those
cases, and Delgado, to review for the legal adequacy of the
decisionmaking process. Here, absent an adequate
explanation as to how the Board’s “meaningful risk of harm”
rationale can be reconciled with the Board’s precedents and
with the statutory language, we cannot say that the Board’s
decision was the result of legally adequate decisionmaking.
17
Our statute may well depart from the probable intent of the
Convention’s drafters, see n.6, supra, as § 1231(b)(3)(B)(iv)’s per se
provision applies the particularly serious crime designation to a wide
range of crimes, unified only by the requirement that the applicant must
have received an aggregate sentence of at least five years’ imprisonment.
Thus, the presumed intent of the Convention’s drafters cannot govern our
analysis of the “particularly serious crime” bar, except insofar as it
confirms that the bar does not extend to most crimes.
36 ALPHONSUS V . HOLDER
IV. Convention Against Torture
To establish eligibility under CAT, an alien must
demonstrate that he will “more likely than not” be tortured if
removed to his home country. 8 C.F.R. § 1208.17; see
Abufayad v. Holder, 632 F.3d 623, 632 (9th Cir. 2011). The
federal regulations define torture as the intentional infliction
of severe pain or suffering, whether physical or mental, when
such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other
person acting in an official capacity. 8 C.F.R.
§ 1208.18(a)(1). “Government acquiescence does not require
actual knowledge or willful acceptance of torture; awareness
and willful blindness will suffice.” Aguilar-Ramos v. Holder,
594 F.3d 701, 705–06 (9th Cir. 2010).
Alphonsus argues that the record in this case compels the
conclusion that he will be tortured if returned to Bangladesh.
He cites: (1) a report by the U.S. Commission on
International Religious Freedom, which maintains
Bangladesh on its watch list “due to the nature and extent of
violations of religious freedom engaged in or tolerated by the
government[]”; and (2) a 2009 United Nations High
Commissioner for Refugees report stating that “[t]he
Government sometimes failed to investigate the crimes and
prosecute the perpetrators” of various attacks on religious
minorities.
Despite the troubling country reports, the record evidence
does not compel the conclusion that Alphonsus himself will
be, more likely than not, tortured upon his return. The two
reports on which he relies make no attempt to determine the
likelihood that any one member of any particular religious
minority will be tortured—as opposed to being persecuted or
ALPHONSUS V . HOLDER 37
discriminated against. Cf. Cole, 659 F.3d at 767. Other
information in the country reports, cited by both the IJ and the
Board, supports the conclusion that torture of Christians by,
or with the acquiescence of, the government is not more
likely than not. The U.S. State Department Country Report,
for example, states that religious violence has decreased in
Bangladesh, that freedom of religion is protected, and that the
Bangladeshi government is taking steps “to promote
understanding and peaceful coexistence among different
communities.” The BIA may use its expertise in considering
contradictory and ambiguous country reports to “decide
which portions of the report[s] are relevant to the applicant.”
Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 999 (9th Cir.
2003); see also Go v. Holder, 640 F.3d 1047, 1054 (9th Cir.
2011).
We accordingly conclude that substantial evidence
supports the Board’s determination that Alphonsus has not
established that he is more likely than not to face torture if
removed to Bangladesh.
V. Conclusion
For the foregoing reasons, we GRANT the petition in
part, DENY it in part, and REMAND for further
consideration and explanation of the “particularly serious
crime” issue. Each party shall bear its own costs.
38 ALPHONSUS V . HOLDER
GRABER, Circuit Judge, concurring in part and dissenting in
part:
I dissent from Part III.C.ii of the panel’s decision, but
concur as to the other parts and concur in the result. I write
separately for two reasons.
1. Under Ninth Circuit precedent, we have jurisdiction to
review the BIA’s denial of Petitioner’s claim for relief under
CAT, even though 8 U.S.C. § 1252(a)(2)(C) strips federal
courts of jurisdiction to review an order of removal against an
alien who is removable by reason of having committed an
aggravated felony, except as to legal or constitutional
questions. Our court has read an additional exception into the
statute’s otherwise unequivocal text, under which we review
such orders if the BIA did not rest its decision on the fact of
the aggravated felony but instead denied relief from removal
on the merits. That interpretation of § 1252(a)(2)(C) ignores
the statute’s text and conflicts with the views of at least four
of our sister circuits.
I have discussed my objection to the judicially fashioned
“on the merits” exception at greater length in my concurring
opinion in Pechenkov v. Holder, No. 08-73287, 2012 WL
5995430, at *5–7 (9th Cir. Dec. 3, 2012). In Pechenkov, this
exception did not apply, so its validity was irrelevant to the
result. Here, though, we assert jurisdiction over Petitioner’s
CAT claim because the BIA denied that claim on the merits.
This case therefore squarely presents us with an opportunity
to correct our flawed interpretation of 8 U.S.C.
§ 1252(a)(2)(C), should we take the case en banc.
2. I dissent from Part III.C.ii because, in my view, the
BIA’s “meaningful risk of harm” rationale applies legal
ALPHONSUS V . HOLDER 39
principles that are neither new nor erroneous, and because it
is premised on factual considerations that, under 8 U.S.C.
§ 1252(a)(2)(C), we lack jurisdiction to review.
The majority relies on Israel v. INS, 785 F.2d 738, 740
(9th Cir. 1986), in which we reversed the denial of a
petitioner’s motion to reopen deportation proceedings
because “[t]he BIA acts arbitrarily when it disregards its own
precedents and policies without giving a reasonable
explanation for doing so.” The majority charges that the BIA
disregarded decisions in which various crimes, committed
under various circumstances, were determined to be either
“particularly serious” or not. See, e.g., In re N-A-M-, 24
I. & N. Dec. 336, 343 (B.I.A. 2007) (holding that felony
menacing involving the use or threatened use of a deadly
weapon was “particularly serious”); Matter of B-, 20 I. & N.
Dec. 427, 429–30 (B.I.A. 1991) (holding that aggravated
battery in which the petitioner had injured someone with a
shot from a firearm was “particularly serious”); Matter of
Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1981) (holding
that unarmed burglary of an apparently unoccupied building
without any aggravating circumstances was not “particularly
serious”). After reviewing those cases (and others), the
majority concludes that the BIA committed legal error by
failing to explain why Petitioner’s conduct more closely
resembles the crimes that were found in the past to be
“particularly serious” than those that were not.
For two reasons, the majority fails to persuade me. First,
Israel reviewed a different type of decision: whether to allow
the reopening of a proceeding. 785 F.2d at 740. That
question does not implicate the jurisdictional restriction
imposed by 8 U.S.C. § 1252(a)(2)(C), which applies here.
Because that statute prohibits us from reviewing Petitioner’s
40 ALPHONSUS V . HOLDER
removal order except as to legal questions, we cannot
overturn the BIA’s particularly serious crime determination
merely because we find the Board’s decision to be “arbitrary”
as a matter of factual application or as an exercise of
judgment.
Second, even if Israel provides the proper framework for
our review, the BIA did not depart from its precedents. To
determine that Petitioner’s crime was “particularly serious,”
the BIA applied the Frentescu/Carballe standard. According
to that well-established legal rule, an individual’s criminal
conduct is “particularly serious” if “the alien, having been
convicted of that crime, can be said to represent a danger to
the community.” Matter of Q-T-M-T-, 21 I. & N. Dec. 639,
654 (B.I.A. 1996) (en banc) (citing Matter of Carballe, 19 I.
& N. Dec. 357, 360–61 (B.I.A. 1986); Frentescu, 18 I. & N.
Dec. 244). Although “there are some crimes that are
inherently ‘particularly serious’ while others clearly are not,”
for other crimes the BIA must make a case-specific
determination “by considering the nature of the conviction,
the circumstances and underlying facts of the conviction, the
sentence imposed, and whether the type and circumstances of
the crime indicate the alien will be a danger to the
community.” Carballe, 19 I. & N. Dec. at 360; see also
N-A-M-, 24 I. & N. Dec. at 342 (holding that the “particularly
serious crime” analysis involves consideration of “all reliable
information . . . , including the conviction records and
sentencing information, as well as other information outside
the confines of a record of conviction”).
In this case, the BIA identified the foregoing legal
standard correctly and proceeded to apply it by considering
the particular facts surrounding Petitioner’s crime. If the BIA
purported to establish a general rule that made the crime of
ALPHONSUS V . HOLDER 41
resisting arrest “particularly serious” per se, we might
demand that it explain why that crime categorically is more
serious than other crimes that the Board has considered not to
be “particularly serious.” But it did not. After adequate
consideration of relevant facts, the BIA held only that
Petitioner’s criminal conduct, under all the circumstances,
was such that he could be said to present a danger to the
community. Those facts included that Petitioner ran through
traffic to evade arrest, assumed a “fighting stance” in relation
to a police officer, shoved the officer, and required the officer
to use a taser by refusing repeatedly to respond to oral
commands.
I acknowledge that an agency “may not depart, sub
silentio, from its usual rules of decision to reach a different,
unexplained result in a single case.” California Trout v.
FERC, 572 F.3d 1003, 1023 (9th Cir. 2009) (internal
quotation marks omitted). Here, though, the agency did
explain the result it reached, and it did so through a reasoned
and reasonable application of its well-established rules for
determining whether a crime is particularly serious. The fact
that no previously published decision of the BIA applied
those principles to the same crime or to the exact set of
circumstances at issue here does not render it a “significant
departure from [the agency’s] own prior precedent.” Shaw’s
Supermarkets, Inc. v. NLRB, 884 F.2d 34, 36 (1st Cir. 1989).
Rather, the BIA’s application of its precedent to the facts of
this case was consistent with its applications of the very same
analytical rules in Matter of N-A-M- and Matter of B-. In
each case, the BIA rested its decision on its finding that the
petitioner’s conduct—which, in this case, included theft,
running into traffic while fleeing from police officers, and a
physical assault on a police officer—presented a danger to the
42 ALPHONSUS V . HOLDER
community because it created a meaningful risk of harm to
others.
Whatever else they may require, Israel and California
Trout do not mean that an agency commits legal error if it
fails to distinguish the entire gamut of factual situations in
which it has previously applied the legal standard at issue. In
holding to the contrary, the majority finds legal error in what
is in fact a judgment call that reflects the Board’s evaluation
of the specific facts of this case. I therefore cannot join Part
III.C.ii.