Delgado v. Mukasey, 546 F.3d 1017 (9th Cir. Oct. 8, 2008) (Congress' statutory designation of certain aggravated felonies as per se "particularly serious" crimes did not preclude the Attorney General from deciding, on a case-by-case basis, that any other crime was also "particularly serious" so as to render noncitizen ineligible for withholding of removal).



NOTE: Judge Berzon wrote a lengthy and well-reasoned dissent, in which she reasons:



First and most important, neither of the majority's two holdings concerning the "particularly serious crime" provisions of 8 U.S.C. 1158(b)(2)(B) and 1231(b)(3)(B) can be reconciled with the most basic principles of statutory interpretation. The majority concludes that the "particularly serious crime" exclusions for asylum and withholding of removal mean nearly the same thing, substantively and procedurally, even though the language, structure, purpose, and context of the two sections are all quite different. That simply cannot be. For the reasons I discuss below, the only viable construction of the "particularly serious crime" provision of 1231(b)(3)(B), the withholding version, is that only aggravated felonies can be "particularly serious crime[s]." And the only viable interpretation of the asylum "particularly serious crime" provision, 1158(b)(2)(B), is that the Attorney General can make non-aggravated felonies "particularly serious crimes" only through regulation, not on a case-by-case basis.



Second, as to the jurisdictional issues, the majority's conclusion that 8 U.S.C. 1252(a)(2)(B)(ii) withdraws our jurisdiction to review the Board of Immigration Appeals' ("BIA's") asylum decision is directly in conflict with Morales v. Gonzales, 478 F.3d 972 (9th Cir.2007). Morales held that asylum issues generally are reviewable, even when committed to the Attorney General's discretion, because of an express statutory provision pertaining only to asylum decisions. The majority holds the opposite. Moreover, the majority does not recognize that some of the specific claims Delgado seeks to raise regarding the determination that his convictions constitute a "particularly serious crime" are, substantively and procedurally, "legal questions related to th[is] determination," Id. at 980. Because they are, we have jurisdiction to decide them even with regard to withholding of removal. Id.



Third, the majority properly relies on Matsuk v. INS, 247 F.3d 999 (9th Cir.2001), to hold that the BIA's determination that a crime is "particularly serious" for withholding purposes is discretionary and so not reviewable. But Matsuk rests on faulty premises, recently rejected by the Second and Third Circuits in convincing opinions. In my view, Matsuk should be reconsidered by this Court sitting en banc.



These issues may therefore be reconsidered en banc by the Ninth Circuit.