(A)  Particularly Serious Crimes.  A two-step process is used in determining whether a conviction constitutes a “particularly serious crime” (“PSC”) sufficient to disqualify a noncitizen from asylum or withholding of removal.  First, if the offense is considered an aggravated felony, the noncitizen is statutorily disqualified for asylum, regardless of sentence,[246] and is statutorily disqualified from withholding if the sentence imposed is for five years or more.[247]

 

Second, if a conviction is found not to be a particularly serious crime under either of the statutory bars, the conviction may still be found by the IJ to be a PSC by looking at the factors described in Matter of Frentescu.[248]  These factors include: 1) nature of the conviction; 2) circumstances and underlying facts of the conviction; 3) type of sentence imposed; and “most importantly” 4) “whether the type and circumstances of the crime indicate that the alien will be a danger to the community.”[249]  This test does not involve “an examination of the respondent’s family or community ties, the risk of persecution in the alien’s native country” or going “behind the record of conviction to redetermine the alien’s innocence or guilt.”[250]  The question of guilt or innocence is distinguished from the question of the extent of culpability and the seriousness of the crime.[251]  The court may not go beyond the record of conviction in making its determination, [252] and the court may not consider facts related only to dismissed counts.[253]

 

There are relatively few cases in which the courts have actually determined whether an offense is a PSC.[254]  The BIA has noted that “[c]rimes against the person are more likely to be categorized as ‘particularly serious crimes.’”[255]  The Attorney General, in Matter of Jean,[256] has additionally held that, even where the conviction is not considered an aggravated felony, any “violent or dangerous” crimes will be considered particularly serious “except . . . in extraordinary circumstances, such as those involving national security or foreign policy considerations, or in cases in which the alien clearly demonstrates that the denial of relief would result in exceptional and extremely unusual hardship . . . .”

 

                In Matter of YL,[257] the Attorney General overruled prior law[258] that an aggravated felony drug offense with a sentence of less than five years was not presumptively a “particularly serious crime” so as to deny withholding.  Instead, the Attorney General found that aggravated felonies involving narcotics trafficking are presumptively particularly serious crimes, and that only under the most extenuating circumstances, that are both extraordinary and compelling, would a different finding be warranted.  While noting that the “devastating effects” of drug trafficking on society could warrant a per se determination that such crimes should be considered “particularly serious,” the Attorney General declined to impose a categorical restriction.  Instead, he set forth the following factors that must exist to justify an unusual circumstances finding:

 

(1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles.[259]

 

At least one court has held that Matter of YL is not inconsistent with prior law on particularly serious crimes requiring that the court engage in an individualized determination of whether the offense is a “particularly serious crime.”[260]  Where the aggravated felony does not involve drug trafficking, the prior law requiring an individualized determination should still stand.[261]  The federal courts have traditionally found drug trafficking offenses to be PSC.[262] 

 

                Prior to Matter of YL, the Attorney General had found that simple possession of a controlled substance was not a PSC.[263]  This should still be the case, especially in light of the United States Supreme Court decision in Lopez v. Gonzales,[264] which noted the difficulty in calling simple possession a “drug trafficking” offense.[265]

 

                The circuit courts are split on whether they have jurisdiction to review findings that a given conviction is for a particularly serious crime.[266]

[246] Ibid.

[247] INA § 241(b)(3)(B); 8 U.S.C. § 1231(b)(3)(B).  At least one court has held that, for withholding of removal purposes, a conviction must be an aggravated felony in order to be a PSC.  Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (BIA decision that bank fraud conviction was a “particularly serious crime” reversed because offense must be an aggravated felony to be considered a PSC and petitioner’s bank fraud conviction was not an aggravated felony).

[248] Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982).

[249] Ibid.  See also Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001).

[250] Matter of LS, 22 I. & N. Dec. 645, 651 (BIA 1999).

[251] See, e.g., Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (BIA acted arbitrarily in failing to consider the facts of noncitizen’s California conviction for unlawful sexual intercourse with a minor in applying Frentescu standard to decide whether conviction constituted a “particularly serious crime” for purposes of withholding of removal).

[252] Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (“only the record of conviction and sentencing information may be considered in determining whether Morales’s conviction was for a particularly serious crime.”), citing Matter of LS, 22 I. & N. Dec. 645, 651 (BIA 1999).

[253] Id. (IJ erred in relying on facts in a Washington appellate court’s opinion to determine whether petitioner’s prior conviction was for a particularly serious crime, where a large portion of the facts relied upon applied to offenses for which she was not convicted).

[254] See, e.g., Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes, in violation of Wash. Rev. Code § 9.68A.090, constituted crime of moral turpitude, but was not a particularly serious crime); Matter of LS, 22 I. & N. Dec. 645 (BIA 1999) (crime of alien smuggling for commercial gain was not particularly serious because the alien-smuggler had no intention of harming the smuggled alien, and the alien-smuggler spent only three-and-a-half months in prison); Cepero v. BIA, 882 F.Supp. 1575 (D. Kan. 1995) (bank robbery); Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993) (shooting with intent to kill); Matter of Carballe, 19 I. & N. Dec. 357 (BIA 1986) (robbery); Matter of Garcia-Garrocho, 19 I. & N. Dec. 423 (BIA 1986) (residential burglary). 

[255] Ibid.

[256] Matter of Jean, 23 I. & N. Dec. 373, 385 (A.G. 2002) (second-degree manslaughter conviction arising from an incident where defendant had shaken and otherwise injured a baby in an attempt to stop the baby from crying, is a particularly serious crime).

[257] Matter of YL, 23 I. & N. Dec. 270 (A.G. 2002).

[258] See Matter of SS, 22 I. & N. Dec. 458 (BIA 1999), modifying Matter of QTMT, 21 I. & N. Dec. 639 (BIA 1996).  But see Matter of UM, 20 I. & N. Dec. 327 (BIA 1991) (considering all “drug trafficking” crimes punishable under federal law to be particularly serious crimes).

[259] Matter of YL, et. al., 23 I. & N. Dec. 270 (A.G. 2002).

[260] Ford v. BICE, 294 F.Supp.3d 655 (M.D. Pa. Dec. 5, 2003) (Matter of YL, creating presumption that aggravated felony drug offense is a “particularly serious crime,” is not inconsistent with Chong v. INS, 264 F.3d 378 (3d Cir. 2001), requiring individual determination of whether offense is “particularly serious crime”).  See also Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990) (requiring that BIA consider each drug offense individually).

[261] Lavira v. Attorney General of U.S., 478 F.3d 158 (3d Cir. Feb. 26, 2007) (reversing where IJ failed to examine underlying facts of the case in determining whether conviction for attempted sale of a controlled substance was a “particularly serious crime” for asylum/withholding purposes), following Vente v. Gonzales, 415 F.3d 296, 302-03 (3d Cir. 2005) (“[I]f the BIA fails to address one of an applicant’s stated grounds for relief, the case must be remanded for the BIA to consider the claim.”).

[262] See, e.g., Tunis v. Gonzales, 447 F.3d 547 (7th Cir. May 15, 2006) (sale of cocaine; applying Matter of YL, 23 I. & N. Dec. 270 (A.G. 2002)); Crespo-Gomez v. Richard, 780 F.2d 932 (11th Cir. 1986) (possession of cocaine for sale); Mahini v. INS, 779 F.2d 1419 (9th Cir. 1986) (distribution of heroin).

[263] Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (A.G. 1994).

[264] Lopez v. Gonzales, 127 S.Ct. 625 (Dec. 5, 2006) (state felony conviction for simple possession of a controlled substance cannot be considered an aggravated felony drug trafficking offense, because it is not a federal felony).

[265] Id. at 630 (“Reading §   924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government’s position.”).

[266] Compare Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (question whether conviction constitutes a particularly serious crime, under INA § 242, 8 U.S.C. § 1252(a)(2)(C), precluding political asylum or withholding of removal, is a discretionary decision not subject to petition for review); Almaghzar v. Gonzales, 450 F.3d 415 (9th Cir. Jun. 8, 2006) (court lacks jurisdiction to review claim that IJ erred in concluding that noncitizen’s felony convictions constituted particularly serious crimes); Singh v. Ashcroft, 351 F.3d 435 (9th Cir. Dec. 5, 2003); Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001), with Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (decision that criminal offense was a “particularly serious crime” not barred from judicial review, since the question is a matter of law, not in the discretion of the Attorney General).

BIA

RELIEF " ASYLUM " SERIOUS NONPOLITICAL CRIME
Matter of EA, 26 I&N Dec. 1 (BIA Sept. 11, 2012) (an IJ should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal aspect of the acts outweighs their political nature).

RELIEF " WITHHOLDING OF DEPORTATION " PARTICULARLY SERIOUS CRIME " PROCEDURE FOR DETERMINING
Matter of RAM, 25 I&N Dec. 657 (BIA 2012) (In determining, on a case by case basis, whether an offense is a particularly serious crime, see Delgado v. Holder, 648 F.3d 1095, 1106-07 (9th Cir. 2011), we examine the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction. Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007), affd, N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009), cert. denied, 131 S. Ct. 898 (2011); see also Matter of L-S-, 22 I&N Dec. 645, 651 (BIA 1999) (determining that consideration of the individual facts and circumstances is appropriate); Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996). [A]ll 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. Matter of N-A-M-, 24 I&N Dec. at 342; see also Anaya-Ortiz v. Holder, 594 F.3d 673, 678-79 (9th Cir. 2010) (holding that it is proper to consider the respondents testimony in a particularly serious crime determination).).

REMOVAL PROCEEDINGS " EVIDENCE
Matter of Velasquez, 25 I&N Dec. 680 (BIA 2012) (to be admissible as evidence of a conviction, an electronic disposition must comply with the authentication requirements of 8 CFR 1003.41(d)).

Fourth Circuit

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - NON-AGGRAVATED FELONY CAN BE PSC
Gao v. Holder, ___ F.3d ___, ___, 2010 WL 624312 (4th Cir. Feb. 23, 2010) (federal conviction for unlawful export of military technology, in violation of 50 U.S.C. 1702 and 1705(b), was a "particularly serious crime," even though it was not classified as an aggravated felony: "We defer to the BIA's reasoned view that an offense need not be an aggravated felony to qualify as a particularly serious crime for purposes of withholding. Furthermore, we conclude that the BIA may determine that a non-aggravated felony is a particularly serious crime for purposes of asylum through the process of case-by-case adjudication.").

Sixth Circuit

RELIEF - POLITICAL ASYLUM - SERIOUS NONPOLITICAL CRIME
Berhane v. Holder, 606 F.3d 819 (6th Cir. Jun. 4, 2010) (determination of whether asylum applicant has committed a serious non-political crime is a non-discretionary decision subject to appellate review; case remanded to the BIA for further explanation of why throwing rocks at Ethiopian police officers would not be considered a political offense sufficient to allow him to qualify for asylum).

RELIEF - WITHHOLDING OF REMOVAL - SERIOUS NONPOLITICAL CRIMES
Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. Mar. 5, 2010) (denying withholding of removal where noncitizen testified he had assaulted another with a bat as part of a gang in Honduras).

Seventh Circuit

RELIEF " ASYLUM
Pronsivakulchai v. Holder, 646 F.3d 1019 (7th Cir. Jul. 25, 2011) (asylum, withholding and CAT barred under 8 U.S.C. 1158(b)(2)(A)(iii), 8 U.S.C. 1231(b)(3)(B)(iii), and 8 C.F.R. 1208.16(d)(2), respectively, where government had serious reason to believe that petitioner had committed offenses related to drug trafficking).

RELIEF - WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME - RESIDENTIAL BURGLARY
Issaq v. Holder, 617 F.3d 962 (7th Cir. Aug. 17, 2010) (Illinois conviction of residential burglary crime leading to an aggregate of more than five years' imprisonment constituted a "particularly serious crime" felony for purposes of withholding of removal).

Eighth Circuit

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME
Tian v. Holder, 576 F.3d 890 (8th Cir. Aug. 19, 2009) (court lacked jurisdiction to review BIAs finding that noncitizens federal conviction of unauthorized access to a computer, in violation of 18 U.S.C. 1030(a)(4), qualified as a particularly serious crime).

EVIDENCE - HEARSAY - POLICE REPORTS - ASYLUM - PARTICULARLY SERIOUS CRIME
Solis v. Mukasey, 515 F.3d 832 (8th Cir. Feb. 8, 2008) (police report, although hearsay, was allowed into evidence for purposes of rebutting respondents version of the underlying facts of controlled substances conviction in determining whether the conviction was for a particularly serious crime).

Ninth Circuit

RELIEF " WITHHOLDING OF REMOVAL " PARTICULARLY SERIOUS CRIME " TRANSPORTATION OF METHAMPHETAMINES
Perez-Palafox v. Holder, 744 F.3d 1138 (9th Cir. Mar. 11, 2014) (California conviction for transportation of methamphetamine, in violation of California Health and Safety Code 11379(a), constituted a particularly serious crime for purposes of barring withholding of removal).

RELIEF " ASYLUM " WITHHOLDING " PARTICULARLY SERIOUS CRIME " RESISTING ARREST
Alphonsus v. Holder, 705 F.3d 1031, 2013 WL 208930 (9th Cir. Jan. 18, 2013) (particularly serious crime exception to withholding of removal was not facially unconstitutionally vague).

RELIEF " POLITICAL ASYLUM " PARTICULARLY SERIOUS CRIME " MAIL FRAUD
Arbid v. Holder, 674 F.3d 1138 (9th Cir. Apr. 3, 2012) (neither BIA nor IJ abused their discretion in holding that petitioner was convicted of a "particularly serious crime" rendering him ineligible for asylum or withholding of removal).

RELIEF " POLITICAL ASYLUM " PARTICULARLY SERIOUS CRIME " RESIDENTIAL BURGLARY
Lopez-Cardona v. Holder, ___ F.3d ___, 2011 WL 5607634 (9th Cir. Nov. 10, 2011) (California conviction for residential burglary, in violation of Penal Code 459, constitutes a crime of violence under 18 U.S.C. 16(b), and is therefore a particularly serious crime); see United States v. Becker, 919 F.2d 568 (9th Cir. 1990) (California conviction of first-degree burglary under California Penal Code 459 is categorically a crime of violence under 18 U.S.C. 16(b) because the crime inherently involves a substantial risk of physical force); Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (The reckless disregard in[18 U.S.C.] 16 relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing a crime. The classic example is burglary. A burglary would be covered under 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.) (footnote omitted).

RELIEF " POLITICAL ASYLUM " AUTHORITY TO DESIGNATE OFFENSES AS PARTICULARLY SERIOUS CRIMES BY REGULATION
Delgado v. Holder, 648 F.3d 1095 (9th Cir. Aug. 19, 2011) (Attorney General has authority to designate offenses as particularly serious crimes through case-by-case adjudication as well as by regulation, for purposes of eligibility for political asylum).

RELIEF " POLITICAL ASYLUM " PARTICULARLY SERIOUS CRIME " DRIVING UNDER THE INFLUENCE
Delgado v. Holder, 648 F.3d 1095 (9th Cir. Aug. 19, 2011) (conviction for driving under the influence could be considered particularly serious crime to disqualify a noncitizen from eligibility for withholding of removal under 8 U.S.C. 1252(a)(2)(B)(ii)).

RELIEF " ASYLUM " CRIMINAL BARS " SERIOUS NONPOLITICAL CRIME
Go v. Holder, __ F.3d __, 2011 WL 1678196 (9th Cir. May 5, 2011) (The INA bars an applicant from obtaining asylum and withholding relief when there are serious reasons to believe that he or she committed a serious nonpolitical crime before arriving in the United States. 8 U.S.C. 1158(b)(2)(A)(iii) (asylum), 1231(b)(3)(B)(iii) (withholding). We interpret serious reasons' to believe as being tantamount to probable cause. McMullen v. INS, 788 F.2d 591, 599 (9th Cir.1986), overruled on other grounds by Barapind v. Enomoto, 400 F.3d 744, 751 n. 7 (9th Cir.2005) (en banc) (per curiam). Under our precedent, we must uphold the Board's conclusion that an alien is ineligible for relief if that determination is supported by substantial evidence. See id. We may reverse the decision of the Board only if the applicant shows that the evidence compels the conclusion that the asylum decision was incorrect. See Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006).; admission by respondent to drug trafficking in removal proceedings sufficient to establish serious reason to believe respondent had engage in a serious nonpolitical crime).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - NO JUDICIAL REVIEW
Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. Jan. 25, 2010), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009) ("We do not have jurisdiction to evaluate discretionary decisions by the Attorney General, see 8 U.S.C. 1252(a)(2)(B)(ii), and therefore lack jurisdiction over the BIA's ultimate determination that Anaya committed a "particularly serious crime" when he drunkenly drove his car into an elderly victim's house and caused part of the wall to collapse on her."); see Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.2005) (holding that "when the Attorney General decides that the alien's offense was a particularly serious crime, we lack jurisdiction to review such a decision because it is discretionary") (citation omitted); Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006), overruled in part on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n.15 (9th Cir.2008) (en banc).

RELIEF - ASYLIM - PARTICULARLY SERIOUS CRIME - EVIDENCE
Anaya-Ortiz v. Holder, (9th Cir. Jan. 25, 2010) (either party may introduce all reliable evidence concerning whether a conviction constitutes a particularly serious crime), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009); deferring to Matter of NAM, 24 I. & N. Dec. 336, 342, 344 (BIA October 24, 2007) ("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"); see Morales v. Gonzales, 478 F.3d 972, 980, 982 (9th Cir. 2007).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - EVIDENCE
Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. Jan. 25, 2010) (the Immigration Judge may consider respondent's testimony at the removal hearing in holding that he had been convicted of a "particularly serious crime"; "Where the BIA does not make an explicit adverse credibility finding, we must assume that [the petitioner's] factual contentions are true."), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009); see Matter of NAM, 24 I. & N. Dec. 336, 342, 344 (BIA October 24, 2007) ("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").

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (non-aggravated felony may still be considered a "particularly serious crime" for purposes of withholding of removal; the Attorney General may determine by adjudication that a crime is "particularly serious" without classifying it as such by regulation).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - COURT OF APPEAL HAS PETITION FOR REVIEW JURISDICTION TO REVIEW MERITS OF PARTICULARLY SERIOUS CRIME DETERMINATION FOR PURPOSES OF ASYLUM
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (court of appeal has jurisdiction to review the merits of a "particularly serious crime" determination for purposes of asylum, because this question is specifically exempted from the jurisdiction-stripping provisions of 8 U.S.C. 1252(a)(2)(B)(ii)), following Morales v. Gonzales, 478 F .3d 972, 980 (9th Cir. 2007).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - DEFINITION OF PARTICULARLY SERIOUS CRIME
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) ("Although the Convention did not define "particularly serious crime," it did create another exception for aliens who had committed a "serious nonpolitical crime" outside of the country of refuge. Convention, art. 1.F.b. As the BIA has stated, "it should be clear that a particularly serious crime is not the equivalent of a serious nonpolitical crime . Further, a particularly serious crime is more serious than a serious nonpolitical crime...." Frentescu, 18 I. & N. Dec. at 247. With reference to a "serious nonpolitical crime," the Handbook on Procedures and Criteria for Determining Refugee Status states that "a serious' crime must be a capital crime or a very grave punishable act." Handbook, 155, HCR/IP/4/ENG/REV.1 (Jan.1992).").

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - CONVICTION OF DRIVING UNDER THE INFLUENCE IS NOT A PARTICULARLY SERIOUS CRIME FOR PURPOSES OF ASYLUM
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (three convictions for felony DUI, one of which involved an injury accident, and two of which resulted in prison terms of less than five years each, did not constitute particularly serious crimes for purposes of barring asylum: it was an abuse of discretion to hold otherwise, because "they do not exceed the 'capital or grave' standard of 'serious' nonpolitical crimes, and Frentescu indicates that particularly serious crimes should exceed that standard.").

ASYLUM - PARTICULARLY SERIOUS CRIME - DANGER TO THE COMMUNITY
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) ("The BIA's approach to determining whether a crime is particularly serious has evolved since Matter of Frentescu. Matter of N-A-M-, 24 I. & N. Dec. at 342. As Matter of N-A-M-, explains, once an alien is found to have committed a particularly serious crime, we no longer engage in a separate determination to address whether the alien is a danger to the community. Id. Thus, [o]nce the INS makes a finding that an offense constitutes a particularly serious crime, a separate determination of danger to the community is not required. Kankamalage v. INS, 335 F.3d 858, 861 n. 2 (9th Cir.2003). This revised approach is contained in the current BIA regulations, which provide that an alien who has been convicted of a particularly serious crime shall be considered to constitute a danger to the community. 8 C.F.R. 1208.16(d)(2); see also Matter of Carballe, 19 I. & N. Dec. 357, 360 (BIA 1986) (explaining that a separate determination of dangerousness focusing on the likelihood of future serious misconduct on the part of the alien is not required by the statute because, when determining whether a conviction is for [a particularly serious] crime, the essential key is whether the nature of the crime is one which indicates that the alien poses a danger to the community).

RELIEF " POLITICAL ASYLUM
Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. Dec. 4, 2008) (Immigration Judge has no duty to inform a respondent of his right to apply for asylum, withholding of removal or relief under the convention against torture unless the respondent specifically and affirmatively expresses a fear of return to his country of origin).

RELIEF - POLITICAL ASYLUM - WITHHOLDING OF REMOVAL --PARTICULARLY SERIOUS CRIME - ENUMERATING OF AGGRAVATED FELONIES AS PARTICULARLY SERIOUS CRIMES DOES NOT PRECLUDE ATTORNEY GENERAL FROM IDENTIFYING OTHERS


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.

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - CIRCUIT SPLIT - JURISDICTION TO REVIEW WHETHER OFFENSE CONSTITUTES PARTICULARLY SERIOUS CRIME
Delgado v. Mukasey, 546 F.3d 1017 (9th Cir. Oct. 8, 2008) (court of appeal lacked jurisdiction to review BIA determination whether particular offense constituted "particularly serious crime"), following Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir. 2001) (particularly serious crime determination by BIA is discretionary, with no governing statutory standards, and so unreviewable by court of appeals); Ali v. Achim, 468 F.3d 462, 468 (7th Cir. 2006), cert. granted, ___ U.S. ___, 128 S.Ct. 29, 168 L.Ed.2d 806, cert. dismissed, ___ U.S. ___, 128 S.Ct. 828, 169 L.Ed.2d 624 (2007) (same); Tunis v. Gonzales, 447 F.3d 547, 549 (7th Cir. 2006) (same); Matter of NAM, 24 I. & N. Dec. 336 (BIA 2007); contra, Alaka v. Attorney General of U.S., 456 F.3d 88, 94-101 (3d Cir. July 18, 2006); Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir. 2008).

RELIEF - ASYLUM - WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME - PRESUMPTION THAT DRUG TRAFFICKING OFFENSE WITH SENTENCE UNDER FIVE YEARS IS PSC
Miguel-Miguel v. Gonzales, ___ F.3d ___, 2007 WL 2429377 (9th Cir. 2007) ("We hold that the Attorney General's construction of 1231(b)(3)(B) as providing him with discretion to create a strong presumption that drug trafficking offenses are particularly serious crimes is not impermissible. [A]fter Matter of Y-L-, a Frentescu analysis is no longer required with regard to drug trafficking offenses. ... We agree that the BIA applied Matter of Y-L- retroactively to Miguel, and that it was forbidden from doing so by Montgomery Ward.").

Tenth Circuit

RELIEF - WITHHOLDING OF DEPORTATION - PARTICULARLY SERIOUS CRIME
N-A-M v. Holder, 587 F.3d 1052 (10th Cir. Nov. 20, 2009) (Colorado conviction of felony menacing, in violation of Colo.Rev.Stat. 18-3-206(1)(a), (b), may constitute a particularly serious crime, for purposes of barring withholding, even though it is not an aggravated felony), disagreeing with Alaka v. Atty. Gen'l of the U.S., 456 F.3d 88, 104 (3d Cir.2006) ("The plain language and structure (i.e., context) of the statute indicate that an offense must be an aggravated felony to be sufficiently serious.").

RELIEF -WITHHOLDING OF DEPORTATION - PARTICULARLY SERIOUS CRIME - SEPARATE DETERMINATION OF DANGER TO THE COMMUNITY NOT REQUIRED
N-A-M v. Holder, 587 F.3d 1052, 1057 (10th Cir. Nov. 20, 2009) ("Section 1231(b)(3)(b)(ii) empowers the Attorney General to deny withholding to alien petitioners upon a determination that the petitioner "having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." The BIA construes this provision as requiring only an inquiry into whether the alien has committed a particularly serious crime. "[O]nce an alien is found to have committed a particularly serious crime, we no longer engage in a separate determination to address whether an alien is a danger to the community." 24 I. & N. Dec. at 342." This is a reasonable interpretation of the statute).

Eleventh Circuit

RELIEF " ASYLUM " INA 209(c) WAIVER " VIOLENT OR DANGEROUS CRIME RELIEF " INA 212(h) WAIVER " VIOLENT OR DANGEROUS
Makir-Marwil v. Atty' Gen., 681 F.3d 1227 (11th Cir. May 22, 2012) (Matter of Jean standard for "violent or dangerous" crimes may be determined by either a categorical or factual analysis of the offense; IJ and BIA erred in failing to consider individual hardship, including country conditions, in determining that applicant would suffer exceptional and extremely unusual hardship).

Other

RELIEF - ASYLUM - POST CON RELIEF - REHABILITATIVE RELIEF MAY BE EFFECTIVE TO ELIMINATE A CONVICTION FOR PURPOSES OF ELIGIBILITY FOR RELIEF - ASYLUM OR WITHHOLDING OF REMOVAL
Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, it arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding context. Therefore, Matter of Roldan and subsequent cases holding that rehabilitative relief does not eliminate a conviction do not apply in this context. Thanks to Manny Vargas. Immigration counsel can also argue that post-conviction relief effectively eliminates the conviction. Thanks to Katherine Brady.