noting that Congress’s “explicit statement that the Attorney General had the continuing authority to determine whether a crime is particularly serious” demonstrated its intent to not disturb the “prior practice of deciding, on a case-by-case basis, whether an alien’s crime was particularly serious”
How later courts described this case
- noting that Congress’s “explicit statement that the Attorney General had the continuing authority to determine whether a crime is particularly serious” demonstrated its intent to not disturb the “prior practice of deciding, on a case-by-case basis, whether an alien’s crime was particularly serious”
- holding that “both aggravated felonies and other offenses can be particularly serious crimes,” given that “aggravated felonies [are only one] subset of particularly serious crimes”
- reasoning that a prior judicial opinion had implicitly held a statute’s meaning unambiguous because the opinion had focused on the statute’s “plain language and structure”
- holding that particularly serious crimes are not limited to the elements of the crime but rather, determined on a “case-by-case basis”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-2017
______________
CARLOS EDUARDO BASTARDO-VALE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of an Order of
The Board of Immigration Appeals
(Agency No. A206-907-703)
Immigration Judge: Quynh Vu Bain
______________
Argued on May 24, 2018 before Merits Panel
Argued En Banc on May 15, 2019
______________
Before: SMITH, Chief Judge, McKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, and
MATEY, Circuit Judges.
(Filed: August 12, 2019)
Rosa Barreca
1308 South 8th Street
Philadelphia, PA 19147
Cherylle C. Corpuz [ARGUED]
Morais Law
101 West Main Street
Suite 101
Moorestown, NJ 08057
Counsel for Petitioner
Benjamin M. Moss [ARGUED]
Judith R. O’Sullivan
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Joseph C. Hohenstein [ARGUED]
Landau Hess Simon & Choi
190 North Independence Mall West
Suite 602
Philadelphia, PA 19106
Counsel for Amicus Curiae American Immigration
Lawyers Association
______________
2
OPINION OF THE COURT
______________
SHWARTZ, Circuit Judge.
Today we decide whether the phrase “particularly
serious crime” as used in both the asylum and withholding of
removal statutes, 8 U.S.C. §§ 1158(b)(2), 1231(b)(3), includes,
but is not limited to, aggravated felonies. We hold that it does.
The phrase “particularly serious crime” means the same thing
in both statutes, and the language of those statutes shows that
aggravated felonies are a subset of particularly serious crimes.
In reaching this conclusion, we overrule Alaka v.
Attorney General, 456 F.3d 88 (3d Cir. 2006), where we
defined the phrase “particularly serious crime” in the context
of withholding of removal to include only aggravated felonies.
Because we revisit this precedent and agree with the Board of
Immigration Appeals’ (“BIA”) decision that Petitioner Carlos
Eduardo Bastardo-Vale committed a particularly serious crime
that barred him from obtaining asylum and withholding of
removal relief, we will deny the petition for review.
I
Bastardo-Vale petitions for review of the BIA decision
that his conviction for second-degree unlawful imprisonment
under Delaware law constitutes a “particularly serious crime,”
rendering him ineligible for both asylum and withholding of
removal relief. 8 U.S.C. §§ 1158(b)(2), 1231(b)(3). His state
conviction arose from a forcible sexual encounter with a
3
college freshman (“victim”). At the time of the incident,
Bastardo-Vale, a native and citizen of Venezuela who entered
the United States on a nonimmigrant student visa, was a
graduate resident assistant at Goldey-Beacom College.
In the early morning of November 10, 2013, Bastardo-
Vale returned to his apartment. There, by the victim’s account,
Bastardo-Vale invited her to his apartment where he forcibly
pulled her into his room and began raping her, or by Bastardo-
Vale’s account, they began to have consensual sex. According
to the police report, the victim told Bastardo-Vale to “‘stop’
numerous times but he refused.” A.R. 2187. She “freed herself
by using her knee to strike [Bastardo-Vale] in the rib cage and
push him off of her body.” Id. The victim and Bastardo-Vale
both left the apartment. About forty-five minutes later,
Bastardo-Vale encountered security guards elsewhere on
campus, who told him that they were looking for him because
he had been accused of rape and instructed him to “stay.” A.R.
260. Bastardo-Vale ignored their direction, returned to his
apartment to retrieve a used condom, and tossed it into a
dumpster. He claimed that he discarded the evidence because,
as a graduate resident assistant, he risked losing his scholarship
by having sexual relations with a freshman.
Bastardo-Vale pleaded no contest to second-degree
unlawful imprisonment in violation of Del. Code Ann. tit. 11,
§ 781 and was sentenced to the maximum term of one year’s
imprisonment, which was suspended for eleven months of time
served.
The Department of Homeland Security (“DHS”) then
charged Bastardo-Vale with removability under 8 U.S.C. §
1227(a)(2)(A)(i), for being convicted of a crime involving
4
moral turpitude, and under 8 U.S.C. § 1227(a)(1)(C)(i), for
failing to comply with the conditions of his nonimmigrant
status. The Immigration Judge (“IJ”) found Bastardo-Vale was
removable because he had stopped attending college and thus
failed to comply with the “conditions of his admission to non-
immigrant student status.” A.R. 197. Bastardo-Vale applied
for asylum, withholding of removal, and Convention Against
Torture (“CAT”) relief based primarily on his claim that he was
harmed in his country of origin on account of an imputed
political opinion stemming from his mother’s political
activities. DHS argued that Bastardo-Vale was not entitled to
asylum and withholding of removal because he had been
convicted of a particularly serious crime and was a “danger to
the community of the United States.” 8 U.S.C. §§
1158(b)(2)(A)(ii), 1231(3)(B)(ii). The IJ rejected that
argument and instead of applying Alaka, which limited the
phrase “particularly serious crime” to aggravated felonies, it
relied on In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007), aff’d
per curiam, 587 F.3d 1052 (10th Cir. 2009). Applying N-A-
M-, the IJ determined that Bastardo-Vale’s conviction was not
for a particularly serious crime because (1) it “was based on a
plea agreement pursuant to which [he] pled no contest,” A.R.
203; (2) there was no evidence suggesting he used “physical
force to confine the victim in his apartment,” A.R. 204, and (3)
he “received a sentence of one year, all of which was
suspended for time served . . . [which] suggest[s] that the
criminal court did not consider him a danger to the
community,” A.R. 204. The IJ noted that Bastardo-Vale’s
attempt to dispose of evidence was “very troubling” but
insufficient to make his crime a particularly serious offense.
A.R. 204. The IJ therefore found that he was eligible for
asylum and had no need to consider his request for withholding
of removal or CAT relief. DHS appealed the IJ’s finding that
5
Bastardo-Vale’s conviction was not for a particularly serious
crime.
The BIA agreed with DHS, disregarded our precedent
in Alaka, and held that Bastardo-Vale had “been convicted of
a particularly serious crime under [the BIA’s] case-by-case
approach set forth in,” among other cases, N-A-M-. A.R. 6.
The BIA concluded that the Delaware unlawful imprisonment
statute encompasses conduct involving physical force and
intimidation, as well as that which “places at risk a particularly
vulnerable segment of society . . . [so the] conviction falls
within the potential ambit of a particularly serious crime.”
A.R. 6. The BIA concluded the circumstances of Bastardo-
Vale’s offense demonstrated its seriousness because “[t]he use
of physical force to overcome another’s desire to terminate a
sexual encounter, whether originally consented to or not, is an
inherently violent act that places a victim in fear for their
safety.” A.R. 6-7. The BIA held that Bastardo-Vale’s
conviction for a particularly serious crime barred him from
receiving asylum and withholding of removal but remanded
the matter to the IJ to address whether he was entitled to CAT
relief. 1
1
In reaching this conclusion, the BIA did not cite and
in fact did not follow Alaka. Rather, it relied upon its own
decision in In re M-H-, 26 I. & N. Dec. 46 (BIA 2012), where
it held that, under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), and National
Cable & Telecommunications Ass’n v. Brand X Internet
Services, 545 U.S. 967 (2005), it had the authority to apply its
own interpretation. The BIA in M-H-, in turn, reasoned that
(1) Alaka did not hold that 8 U.S.C. § 1231(b)(3)(B) was
unambiguous, M-H-, 26 I. & N. Dec. at 49, (2) applying its
6
own precedent to matters arising in the Third Circuit would
“promote national uniformity in the application of the
particularly serious crime bar for withholding of removal,” id.,
and (3) using its own precedent would “provide consistency in
the treatment of the particularly serious crime bars for [both]
asylum and withholding of removal” cases, id. at 49-50.
The IJ and BIA’s blatant disregard of the binding
regional precedent is ultra vires. See Abdulai v. Ashcroft, 239
F.3d 542, 553 (3d Cir. 2001) (“The BIA is required to follow
court of appeals precedent within the geographical confines of
the relevant circuit.” (citation omitted)). While we understand
the value of uniform treatment of similarly situated aliens and
acknowledge that, until now, our circuit precedent differed
from that of other circuits, Brand X did not provide the IJ or
BIA the authority to ignore the applicable regional circuit’s
precedent. See Abdulai, 239 F.3d at 553; Saravia v. Att’y
Gen., 905 F.3d 729, 731 (3d Cir. 2018) (holding that an IJ must
follow circuit precedent despite the BIA’s “subsequent
contrary decision” (citation omitted)). To the contrary, Brand
X provides that “[a] court’s prior judicial construction of a
statute trumps an agency construction otherwise entitled to
Chevron deference . . . if the prior court decision holds that its
construction follows from the unambiguous terms of the statute
and thus leaves no room for agency discretion.” 545 U.S. at
982.
In Alaka, we did not hold that the phrase “particularly
serious crime” in the withholding of removal statute was
ambiguous. Thus, the case on which the BIA and IJ relied, M-
H-, misunderstood Alaka’s view of the statutory phrase. M-H-
reasoned that since Alaka did not expressly state that the
7
withholding statute was “unambiguous,” the agency was free
to disregard our interpretation of the statute and impose its
own. 26 I. & N. Dec. at 49. There are two related problems
with this view. First, Alaka stated that the “plain language and
structure” of the withholding statute “indicate[d] that an
offense must be an aggravated felony” to be particularly
serious. 456 F.3d at 104. This demonstrated that the Alaka
court did not view the withholding statute as ambiguous.
Second, the absence of Chevron-type language from Alaka,
such as an explicit statement that the statute was unambiguous,
is understandable because the BIA had not interpreted the
clause at issue when the Alaka court ruled. Thus, the Alaka
court had no reason to use language relevant to deciding
whether we are obligated to defer to an agency’s interpretation.
The lack of magic words like “unambiguous” and use of words
like “suggest” or “implies,” when viewed in context of Alaka’s
focus on the statute’s language and structure, conveys that it
viewed the statute as clear. See Texas v. Alabama-Coushatta
Tribe of Texas, 918 F.3d 440, 447 (5th Cir. 2019) (holding that
a “prior judicial decision need not say in so many magic words
that its holding is the only permissible interpretation of the
statute in order for that holding to be binding on an agency”
(internal quotation marks and citations omitted)). Because the
BIA’s interpretation of Alaka is predicated on an erroneous
view that Alaka did not hold that the statute was unambiguous,
we need not defer to its interpretation. Compare M-H-, 26 I.
& N. Dec. at 49, with Alabama-Coushatta Tribe, 918 F.3d at
449 (holding that “a court should not defer to an agency’s
interpretation of a statute if a ‘judicial precedent hold[s] that
the statute unambiguously forecloses the agency’s
interpretation’” (quoting Brand X, 545 U.S. at 982-83)).
8
On remand, Bastardo-Vale withdrew his CAT claim,
and the IJ ordered Bastardo-Vale removed. Bastardo-Vale
appealed the IJ’s decision to the BIA for it to certify the ruling
as final and petitioned our Court for review. 2 The BIA
determined that “there [was] nothing left for [it] to decide
regarding” Bastardo-Vale’s asylum or withholding of removal
applications, Supp. App. 10, but again remanded the matter for
the IJ to determine his country of removal. The IJ subsequently
ordered Bastardo-Vale removed to Venezuela.
Bastardo-Vale seeks review of the BIA’s determination
that his conviction for second-degree unlawful imprisonment
qualifies as a particularly serious crime and asserts that he is
entitled to asylum and withholding of removal. He claims that
the BIA erred in disregarding Alaka and holding that his non-
aggravated offense was a “particularly serious crime” that bars
him from relief.
After oral argument before a panel of our Court, we
elected sua sponte to hear the case en banc to determine
whether Alaka remains good law. We now examine the phrase
“particularly serious crime” under both the asylum and
withholding of removal statutes as well as the rulings of our
sister circuits who have concluded that the phrase “particularly
2
Although Bastardo-Vale prematurely filed his petition
for review before a final order of removal was entered, such an
order has since been entered, and thus we now have jurisdiction
under 8 U.S.C. § 1252(a)(1). See Khan v. Att’y Gen., 691 F.3d
488, 494 (3d Cir. 2012). The Government recognizes that we
have jurisdiction and has moved to withdraw its motion to
dismiss for lack of jurisdiction, which we will grant.
9
serious crime” is not limited to aggravated felonies in either the
asylum or withholding of removal context.
II 3
A
The IJ granted Bastardo-Vale asylum but the BIA
overturned that ruling because it found that Bastardo-Vale was
convicted of an offense it deemed to be a particularly serious
crime, even though it was not an aggravated felony. To
determine whether this is correct, we will first review the
statutory framework for asylum.
The Secretary of Homeland Security or the Attorney
General may grant an asylum application if the alien shows that
he is a “refugee” who is persecuted due to his race, religion,
nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1158(b)(1)(B)(i). Asylum,
however, is unavailable to an alien, “convicted by a final
judgment of a particularly serious crime,” whom the Attorney
General determines “constitutes a danger to the community of
the United States.” Id. § 1158(b)(2)(A)(ii).
The phrase “particularly serious crime” is not defined in
§ 1158, but Congress included two “Special Rules” within the
asylum statute addressing the subject. Id.
3
The IJ had jurisdiction under 8 C.F.R. § 1208.2 and
the BIA had jurisdiction under 8 C.F.R. § 1003.1(b). When, as
here, the BIA issues its own opinion on the merits, we review
the BIA’s decision, not that of the IJ. Mahn v. Att’y Gen., 767
F.3d 170, 173 (3d Cir. 2014) (citation omitted).
10
§ 1158(b)(2)(B). The Special Rules provide:
(i) Conviction of aggravated felony
For purposes of clause (ii) of subparagraph (A)
[which bars an alien convicted of a particularly
serious crime from asylum relief], an alien who
has been convicted of an aggravated felony shall
be considered to have been convicted of a
particularly serious crime.
(ii) Offenses
The Attorney General may designate by
regulation offenses that will be considered to be
a crime described in clause (ii) . . . of
subparagraph (A).
Id. While the language in subsection (i) automatically
designates aggravated felonies as particularly serious crimes,
subsection (ii) shows that Congress did not limit the definition
of particularly serious crimes to aggravated felonies. Indeed,
the asylum statute authorizes the Attorney General to designate
by regulation other offenses as particularly serious crimes. Id.
§ 1158(b)(2)(B)(ii). To say that the statute limits the types of
offenses that could be considered particularly serious to
aggravated felonies would render superfluous the Attorney
General’s power to designate offenses as particularly serious
crimes by regulation. Gao v. Holder, 595 F.3d 549, 556 (4th
Cir. 2010). Our reading ensures that we “give effect to every
word” of the statute. Leocal v. Ashcroft, 543 U.S. 1, 12 (2004)
(citation omitted).
11
Moreover, reading “particularly serious crime” to
include only aggravated felonies would improperly render the
phrase meaningless as it would just be an alternate phrase for
“aggravated felony.” See TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001) (“It is a cardinal principle of statutory construction
that a statute ought, upon the whole, to be so construed that, if
it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.” (internal quotation marks
and citation omitted)). Reading the plain language of the
asylum statute to provide that aggravated felonies are just one
category of crimes that are deemed particularly serious would
give the phrases “particularly serious crime” and “aggravated
felony” independent meaning.
Such a reading would also render meaningless the
Attorney General’s power to designate other crimes as serious.
See Delgado v. Holder, 648 F.3d 1095, 1106 (9th Cir. 2011)
(en banc) (“There is little question that this latter provision
permits the Attorney General, by regulation, to make particular
crimes categorically particularly serious even though they are
not aggravated felonies.” (emphasis omitted)); Gao, 595 F.3d
at 556 (“Given that the statute makes all aggravated felonies
per se particularly serious, the Attorney General’s power to
designate offenses as such by regulation would be ‘wholly
redundant’ if it were limited to aggravated felonies.” (citation
omitted)); Nethagani v. Mukasey, 532 F.3d 150, 156 (2d Cir.
2008) (“The Attorney General (or his agents) may determine
that a crime is particularly serious for purposes of the asylum
statute, 8 U.S.C. § 1158(b)(2)(B)(i), even though it is not an
aggravated felony.”); Ali v. Achim, 468 F.3d 462, 469 (7th Cir.
2006) (“Nowhere does § 1158 purport to prohibit the Attorney
General from determining in a given case that an alien’s
nonaggravated felony is ‘particularly serious’ unless he had the
12
foresight to explicitly itemize that particular crime by
regulation.”).
Congress’s grant of authority to the Attorney General to
promulgate regulations to identify other offenses as
particularly serious crimes further demonstrates that offenses
other than aggravated felonies could be designated as per se
particularly serious crimes. Through rulemaking, the Attorney
General gives notice to the public of offenses, in addition to
aggravated felonies, that may be designated as per se
“particularly serious crimes” and receives comments. This
authorization, however, is permissive and does not preclude
the Attorney General from evaluating, on a case-by-case basis,
whether the facts and circumstances of a conviction also
support concluding that an individual alien committed a
particularly serious crime. Immigration officials have
proceeded via case-by-case adjudication since the early 1980s.
See Delgado, 648 F.3d at 1106 (citing In re Frentescu, 18 I. &
N. Dec. 244, 247 (1982)). We presume that Congress was
aware of this procedure in 1996 when it granted the Attorney
General the authority to identify by regulation categories of
crimes that may be deemed per se particularly serious crimes.
See id. (“Although Congress has amended the asylum statute’s
particularly serious crime bar over time, none of its actions
have called into question the BIA’s authority to designate
offenses as particularly serious crimes through case-by-case
adjudication.”); see also Lorillard v. Pons, 434 U.S. 575, 580
(1978) (“Congress is presumed to be aware of an
administrative or judicial interpretation of a statute and to
adopt that interpretation when it re-enacts a statute without
change.”). Thus, the grant of regulatory authority to designate
classes of offenses as particularly serious crimes did not
displace the Attorney General’s authority to also make case-
13
specific determinations concerning whether an alien’s offense
should be deemed “particularly serious.” 4 See Delgado, 648
4
In his dissent, Judge McKee contends that the phrase
“by regulation” in the asylum statute, 8 U.S.C. §
1158(b)(2)(B)(ii), operates as a limitation that precludes the
use of case-by-case adjudication to determine whether certain
crimes are particularly serious. There are several problems
with this interpretation.
First, this reading overlooks the word “may” that
precedes the phrase “by regulation.” Id. The word “may”
conveys permission for the agency to act in a particular way
but does not mandate that the agency act only in that one
fashion. May, Merriam-Webster, https://www.merriam-
webster.com/dictionary/may (last visited July 26, 2019)
(defining “may” as “have permission to” or “be free to”); May,
Black’s Law Dictionary (11th ed. 2019) (defining “may” as
“[t]o be permitted to”); see Rossman v. Fleet Bank (R.I.) Nat’l
Ass’n, 280 F.3d 384, 393 (3d Cir. 2002) (noting the
“permissive sense” of the word “may”).
Second, Congress knows how to limit an agency to
rulemaking or to adjudication. For example, the Attorney
General can parole aliens “for urgent humanitarian reasons or
significant public benefit,” but can do so “only on a case-by-
case basis,” not by using prospective rulemaking. 8 U.S.C. §
1182(d)(5)(A). Moreover, Congress has at times distinguished
between mandatory and permissive uses of rulemaking.
Compare 42 U.S.C. § 1395m(a)(1)(G) (“The Secretary [of
Health and Human Services] shall specify by regulation the
methodology to be used” for rendering certain kinds of
payments) with id. § 1395m(a)(12) (“The Secretary may
designate, by regulation . . . one carrier for one or more entire
regions to process all claims within the region for covered
14
items under this section.”). Similarly, Congress has at times
required agencies to use rulemaking to achieve a certain result.
See, e.g., 42 U.S.C. § 6924(a) (providing that if some
conditions are met, “the Administrator [of the Environmental
Protection Agency] shall promulgate regulations establishing .
. . performance standards”); id. § 7409(a)(1)(A) (providing that
the Administrator of the Environmental Protection Agency
“shall publish proposed regulations prescribing a national
primary ambient air quality standard”). In short, Congress
could have written the asylum statute so that the agency could
proceed only by rulemaking or only by adjudication.
Congress, however, has not done so here. The absence of such
language makes clear that Congress did not displace the
Attorney General’s longstanding discretion to choose between
rulemaking and adjudication. See PBW Stock Exch., Inc. v.
SEC, 485 F.2d 718, 732 (3d Cir. 1973) (noting that “[t]he
courts have consistently held that where an agency, as in this
case, is given an option to proceed by rulemaking or by
individual adjudication the choice is one that lies in the
informed discretion of the administrative agency”).
Third, as stated previously, Congress added the “by
regulation” language within the context of the agency’s regular
use of case-by-case adjudication. Because Congress was
aware of the agency’s practice of adjudication, see Lorillard,
434 U.S. at 580, its inclusion of the “by regulation” language
added another means by which the agency could categorize
crimes as particularly serious: rulemaking. This interpretation
of the “by regulation” clause accords with principles of
administrative law. See SEC v. Chenery Corp., 332 U.S. 194,
202 (1947) (observing that “there is . . . a very definite place
for the case-by-case evolution of statutory standards” because
“problems may arise in a case which the administrative agency
15
F.3d at 1106 (holding that § 1158(b)(2)(B) “does not require
the Attorney General to anticipate every adjudication by
promulgating a regulation covering each particular crime”);
Gao, 595 F.3d at 556 (rejecting the view that “regulation is the
exclusive means by which the Attorney General can determine
that a non-aggravated felony is a particularly serious crime”
because, among other things, “requiring an agency to proceed
could not reasonably foresee, problems which must be solved
despite the absence of a relevant general rule”).
Finally, to the extent that Judge McKee asserts that
Congress must confer adjudicatory powers upon the agency to
determine which crimes are particularly serious, it has already
done so. An IJ “conduct[s] proceedings for deciding the
inadmissibility or deportability of an alien.” 8 U.S.C. §
1229a(a)(1). The IJ, among other things, “receive[s] evidence,
and interrogate[s], examine[s], and cross-examine[s] the alien
and any witnesses.” Id. § 1229a(b)(1). Afterwards, the IJ
“shall decide whether an alien is removable . . . based only on
the evidence produced in the hearing.” Id. § 1229a(c)(1)(A).
Congress has therefore authorized IJs to decide whether an
alien is removable.
This decision, in turn, requires that an IJ consider
whether there are grounds to order or not order an alien’s
removal. An IJ, for example, may consider a request for
asylum, which includes evaluating whether there are legal
impediments to receiving this relief, such as certain prior
convictions. Thus, the authority to decide whether an alien is
removable or eligible for relief from removal through asylum
includes the authority to decide whether the alien committed a
“particularly serious crime” that precludes asylum relief. See
id. § 1158(b)(2)(A)(ii). As a result, Congress has delegated the
power to adjudicate on a case-by-case basis to the agency.
16
by rulemaking alone could stultify the administrative process
by rendering it inflexible and incapable of dealing with many
of the specialized problems which arise” (internal citation and
quotation marks omitted)); Ali, 468 F.3d at 469 (noting that
“[a]n interpretation that requires the Attorney General and his
agents to sift through each state’s code and prospectively
identify by regulation every single crime that would qualify as
‘particularly serious’ would impose an onerous burden,” and
that “[n]othing in the statute’s text suggests a requirement that
the Attorney General must engage in such an anticipatory
task”). 5
5
The congressional enactments during this period also
show that the regulatory authority did not displace the Attorney
General’s authority to also consider whether an alien
committed a particularly serious crime on a case-by-case basis.
Congress amended the immigration laws in the 1990s to limit
the availability of asylum and other relief, St. Cyr v. I.N.S., 229
F.3d 406, 411 n.3 (2d Cir. 2000); Garcia v. I.N.S., 7 F.3d 1320,
1322 (7th Cir. 1993), and to “expedite” the removal of criminal
aliens, Patel v. Zemski, 275 F.3d 299, 304 (3d Cir. 2001),
overruled on other grounds by Demore v. Kim, 538 U.S. 510,
516 (2003); DeSousa v. Reno, 190 F.3d 175, 185 (3d Cir.
1999). To this end, Congress expanded the Attorney General’s
authority by adding the “particularly serious crime” bar to the
asylum statute in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. Congress also gave the
Attorney General the authority to designate categories of
offenses as particularly serious crimes that would bar asylum
relief. Before this regulatory authority was granted, the
Attorney General had evaluated whether an offense was a
particularly serious crime on a case-by-case basis. Delgado,
648 F.3d at 1106; Frentescu, 18 I. & N. Dec. at 247. Because
17
Congress added this regulatory authority in the context of other
legislation that increased the grounds to remove aliens, it
would be inconsistent with this goal to believe that Congress
replaced a case-by-case adjudicatory process with a regulation-
only process, which would slow the identification of qualifying
offenses and remove consideration of facts that reveal whether
the specific alien is a danger to the community. See 8 U.S.C.
§ 1158(b)(2)(A)(ii); Gao, 595 F.3d at 557 (“It would be a
Herculean task to sift through each state’s code and
prospectively identify by regulation every single crime that
would qualify as particularly serious.” (internal quotation
marks omitted)).
In addition, the caselaw landscape before 1996 and
Congress’s reaction to it also show that inclusion of the “by
regulation” language was a reaffirmation of regulatory
authority. Since In re Frentescu, the Attorney General could
proceed by adjudication. In other words, the adjudication door
was open. By the time Congress added this language in 1996,
however, the Court of Appeals for the Ninth Circuit had closed
the other door by holding that the agency could not use
rulemaking. Komarenko v. INS, 35 F.3d 432, 436 (9th Cir.
1994). Aliens in other circuits also attacked agency rules
designating crimes as particularly serious as ultra vires,
arguing that crimes could be particularly serious only if
deemed so by adjudication. See, e.g., Ahmetovik v. INS, 62
F.3d 48, 52 (2d Cir. 1995) (alien “contend[ed] that the BIA
should have conducted a broad inquiry into the facts
underlying her conviction in order to determine whether the
crime was ‘particularly serious.’”). By adding “by regulation,”
therefore, Congress ended this debate: it rejected Komarenko
and allowed the agency to proceed by rulemaking. Contrary to
Judge McKee’s contention that the phrase is meaningless, it
18
For these reasons, we hold that under the asylum statute,
(1) aggravated felonies are a subset of offenses that constitute
particularly serious crimes; (2) the Attorney General has the
authority to designate other offenses as per se particularly
serious; and (3) the Attorney General retains the authority,
through a case-by-case evaluation of the facts surrounding an
individual alien’s specific offense, to deem that alien to have
committed a particularly serious crime.
B
We next examine the phrase “particularly serious
crime” in the withholding of removal statute to determine
whether it also includes, but is not limited to, aggravated
felonies. The “particularly serious crime” bar in that statute
provides:
Subparagraph (A) [providing for withholding of
removal] does not apply to an alien deportable
under section 1227(a)(4)(D) of this title or if the
Attorney General decides that—
...
(ii) the alien, having been convicted by a
final judgment of a particularly serious
clarifies that both the adjudication and rulemaking doors are
open to the agency, leaving the agency discretion to choose
between them.
For these additional reasons, we conclude that the
Attorney General has authority both to designate categories of
offenses as particularly serious crimes and to decide whether
an alien’s offense constitutes a particularly serious crime on a
case-by-case basis.
19
crime is a danger to the community of the
United States;
...
For the purposes of clause (ii), 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.
8 U.S.C. § 1231(b)(3)(B).
In Alaka, we interpreted the phrase “particularly serious
crime” as used in the withholding statute to be limited to
aggravated felonies. 456 F.3d at 104-05. The Alaka court
examined only the withholding statute, and no party presented
the Alaka court with the identical phrase from the asylum
statute. Thus, the Alaka court was not required to consider
whether the use of the phrase in the asylum statute should
influence its interpretation of the identical phrase in the
withholding statute. Unlike our colleagues in Alaka, we must
interpret the phrase as used in both statutes because Bastardo-
Vale seeks both asylum and withholding of removal relief. We
must therefore proceed in this case mindful that “[i]n all but
the most unusual situations, a single use of a statutory phrase
must have a fixed meaning.” Cochise Consultancy, Inc. v.
United States ex rel. Hunt, 139 S. Ct. 1507, 1512 (2019)
(citation omitted); Smith v. City of Jackson, 544 U.S. 228, 233
(2005) (“[W]hen Congress uses the same language in two
20
statutes having similar purposes . . . it is appropriate to presume
that Congress intended that text to have the same meaning in
both statutes.”). As a result, we will reexamine our earlier
interpretation of the phrase “particularly serious crime” as it is
used in the withholding of removal statute.
As we already stated, the phrase “particularly serious
crime” as used in the asylum statute includes but is not limited
to aggravated felonies. Examining the identical phrase in the
withholding of removal statute, we reach the same conclusion.
The withholding of removal statute specifically lists a subset
of aggravated felonies deemed per se “particularly serious
crimes.” The statute provides 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.” 8 U.S.C. § 1231(b)(3)(B).
Through this language, Congress designated a category of
aggravated felonies based upon the punishment imposed to be
a particularly serious crime. In the very next sentence,
Congress expressly stated that its directive concerning aliens
convicted of aggravated felonies and sentenced to five or more
years’ imprisonment did not “preclude the Attorney General
from determining that, notwithstanding the length of sentence
imposed, an alien has been convicted of a particularly serious
crime.” Id. The language embodies Congress’s explicit
statement that the Attorney General had the continuing
authority to determine whether a crime is particularly serious.
This demonstrates that Congress did not disturb the Attorney
General’s prior practice of deciding, on a case-by-case basis,
whether an alien’s crime was particularly serious. See N-A-M
v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (observing
that the “long history of case-by-case determination” of
21
particularly serious crimes “counsels against . . . a bright-line
rule” for determining which crimes are particularly serious
(citations omitted)). Indeed, the language of § 1231(b)(3)(B)
is permissive, not restrictive, in that it does not explicitly
dictate that the only offenses that constitute particularly serious
crimes are aggravated felonies. See Delgado, 648 F.3d at
1104; Gao, 595 F.3d at 555; N-A-M, 587 F.3d at 1056.
Moreover, Congress used both “aggravated felony” and
“particularly serious crimes” in the statute and, as stated
earlier, we are obligated to give each word meaning. See N-
A-M, 587 F.3d at 1056 (holding that “Congress’s use of two
different terms—‘particularly serious’ crime and ‘aggravated’
felony—is additionally indicative of substantively different
meanings”). To say that only aggravated felonies are
“particularly serious crimes” would render the words
“particularly serious crime” surplusage. Put differently, if
Congress did not intend for crimes other than aggravated
felonies to disqualify aliens from withholding of removal, then
it would have simply said that (1) an alien convicted of an
aggravated felony and sentenced to at least five years of
imprisonment is barred from relief and that (2) the Attorney
General may, in his discretion, bar those who are convicted of
an aggravated felony and who received sentences of less than
five years from relief. Congress’s inclusion of the words
“particularly serious crime” in addition to the words
“aggravated felony” conveys that the bar may apply to those
who are convicted of crimes other than aggravated felonies too
when the Attorney General determines the offense is a
particularly serious crime.
In sum, the language of the withholding of removal
statute shows that aggravated felonies are a subset of
22
particularly serious crimes and that Congress has deemed one
subset of aggravated felonies, namely those for which the alien
was sentenced to at least five years, particularly serious per se.
Our sister circuits have also embraced the view that the phrase
“particularly serious crime” as used in the withholding of
removal statute includes but is not limited to aggravated
felonies. See Delgado, 648 F.3d at 1102-04; Gao, 595 F.3d at
554-55; N-A-M, 587 F.3d at 1056; Nethagani, 532 F.3d at 156-
57; see also Valerio-Ramirez v. Sessions, 882 F.3d 289, 296
(1st Cir. 2018) (adopting a case-by-case approach for
determining “whether a non-aggravated felony qualifies as a
particularly serious crime rendering an alien ineligible for
withholding of deportation” (internal quotation marks
omitted)). Thus, under the language of both the asylum and
withholding statutes, the phrase “particularly serious crime”
means the same thing: both aggravated felonies and other
offenses can be particularly serious crimes. 6
In reaching this conclusion, we depart from our
precedent in Alaka. In our Court, precedent is binding on later
panels, 3d Cir. I.O.P. 9.1, and “[w]e do not overturn our
precedents lightly,” Al-Sharif v. U.S. Citizenship &
Immigration Servs., 734 F.3d 207, 212 (3d Cir. 2013) (en
banc). Indeed, this practice shows our Court’s respect for the
6
The differences in the statutes do not mean that the
phrase “particularly serious crime” should be given a different
meaning. While asylum is discretionary and withholding of
removal is mandatory, and entitlement to asylum is met by a
lower standard of proof than that required for withholding of
removal, each statute reflects Congress’s view that a
“particularly serious crime” bars aliens from obtaining certain
immigration relief.
23
role of stare decisis and the predictability it affords. See Payne
v. Tennessee, 501 U.S. 808, 827 (1991) (noting that stare
decisis “promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity
of the judicial process” (citation omitted)). This case,
however, presents a “rare occasion” where departure is
required for four reasons. See In re Grossman’s Inc., 607 F.3d
114, 117 (3d Cir. 2010) (en banc). First, in the twelve years
since Alaka, no other appellate court tasked with interpreting
the phrase “particularly serious crime” has concluded that it
only includes aggravated felonies. While we generally “decide
cases before us based on our own examination of the issue, not
on the views of other jurisdictions,” these more recent
decisions suggest that we should “consider whether the
reasoning applied by our colleagues elsewhere is persuasive.”
Id. at 121; Joyce v. Maersk Line Ltd, 876 F.3d 502, 512 (3d
Cir. 2017) (en banc) (“[W]hen our Court is in disagreement
with every other circuit to consider a question, it can be wise
to reconsider our prior reasoning.”). Second, the phrase
“particularly serious crime” is used in both the asylum and
withholding of removal statutes and should be interpreted to
mean the same thing. See, e.g., City of Jackson, 544 U.S. at
233. Third, by interpreting the phrase consistently across
similar statutes, and similar to our sister circuits, we ensure that
aliens in different circuits with identical convictions are treated
similarly. Finally, as explained above, limiting the phrase
“particularly serious crimes” to encompass only aggravated
felonies “cannot easily be reconciled with the text” of the
asylum and withholding of removal statutes. See Al-Sharif,
734 F.3d at 212. Therefore, we now overrule Alaka’s
definition of particularly serious crime as being limited to
aggravated felonies and hold that the phrase “particularly
24
serious crime” includes—but is not limited to—aggravated
felonies.
III
Having determined that the phrase “particularly serious
crime” can include offenses other than aggravated felonies, we
now address the Government’s argument that Bastardo-Vale
waived his right to challenge the BIA’s application of N-A-M-
to his conviction.
“[A]n appellant’s opening brief must set forth and
address each argument the appellant wishes to pursue in an
appeal.” Barna v. Bd. of Sch. Directors of Panther Valley Sch.
Dist., 877 F.3d 136, 145 (3d Cir. 2017). If an argument on
appeal is not “supported specifically by ‘the reasons for [it],
with citations to the authorities and parts of the record on which
the appellant relies,’” it is not properly preserved. Id. (quoting
Fed. R. App. P. 28(a)(8)(A)). We typically decline to address
arguments not properly preserved in the “original briefs” to us.
See Daggett v. Kimmelman, 811 F.2d 793, 795 n.1 (3d Cir.
1987).
Bastardo-Vale failed to argue in his opening brief to us
that the BIA improperly applied N-A-M- in concluding that his
conviction for second-degree unlawful imprisonment was a
particularly serious crime. Instead, Bastardo-Vale argued only
that, because he was not convicted of an aggravated felony, the
particularly serious crime bar did not apply to his claims for
asylum and withholding of removal. Bastardo-Vale’s clear
focus on Alaka in his brief to our Court and his omission of
any argument regarding the BIA’s application of N-A-M- and
its analysis of the circumstances of his offense constitutes a
25
waiver of any challenges to the BIA’s assessment of whether
his offense of conviction constitutes a particularly serious
crime. Thus, we will leave the BIA’s conclusion undisturbed. 7
IV
For the foregoing reasons, we will deny the petition.
7
Even if Bastardo-Vale did not waive this argument,
there is likely enough evidence to uphold the BIA’s
determination that he committed a particularly serious crime.
26
McKEE, Circuit Judge, dissenting
Today we hold that the panel in Alaka v. Attorney
General 1 erred in concluding that “particularly serious crime,”
as that term is used in 8 U.S.C. § 1231(b)(3)(B), is not limited
to aggravated felonies. Although I concede that the question is
a close call, I agree with Judge Ambro that the category is
limited to aggravated felonies. Accordingly, I join Judge
Ambro’s dissent from the Majority’s analysis of that issue. For
the reasons he explains in his dissent, I agree that Congress
intended to limit particularly serious crimes in 8 U.S.C.
§ 1231(b)(3)(B) to aggravated felonies. However, like Judge
Ambro, I also commend Judge Shwartz for her analytical
approach in explaining the Majority’s conclusion that Alaka
was wrongly decided. I share the concern expressed in the
Majority Opinion regarding the “IJ and BIA’s blatant disregard
of the binding regional precedent” of this Article III Court. 2
The Majority’s approach of avoiding a discussion of In re M-
H-, 3 and Chevron deference, 4 is in the best tradition of Article
III jurisprudence.
Nevertheless, I cannot agree that the Majority has
appropriately dealt with the unambiguous phrase “by
regulation” in 8 U.S.C. § 1158(b)(2)(B); therefore, I must also
respectfully dissent from the Majority’s interpretation of that
provision. As I explain below, my colleagues’ analysis and
discussion of that phrase simply reads it out of the statute.
Although I appreciate the difficulties that can result from
interpreting the statute as Congress wrote it, I am not
convinced by the Majority Opinion that those difficulties
justify simply ignoring the express limitation that Congress
placed upon the Attorney General’s authority to define crimes
as being “particularly serious.”
1
456 F.3d 88 (3d Cir. 2006).
2
Maj. Op. at 6 n.1.
3
26 I. & N. Dec. 46 (BIA 2012).
4
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984). See also Nat’l Cable & Telecomm. Ass’n v.
Brand X Internet Servs., 545 U.S. 967 (2005) (explaining
when an Article III court owes deference to the administrative
agency’s interpretation of a statute).
I.
Congress unambiguously stated that “[t]he Attorney
General may designate by regulation offenses that will be
considered to be a [particularly serious] crime.” 5 My
colleagues argue that the fact that the statute says the Attorney
General “may” designate offenses as particularly serious
crimes by regulation does not mean the Attorney General may
only do so by regulation. They believe that Congress did not
intend to preclude the Attorney General from also so
designating offenses by agency adjudication. 6 They proclaim:
“the grant of regulatory authority to designate classes of
offenses as particularly serious crimes did not displace the
Attorney General’s authority to also make case-specific
determinations concerning whether an alien’s offense should
be deemed ‘particularly serious.’” 7 However, that
proclamation ignores that Congress did expressly limit that
grant of regulatory authority. It stated that the Attorney
General could designate additional crimes “by regulation.”
My colleagues suggest that Congress would have stated
that “the Attorney General shall designate by regulation,” if
Congress intended to require the Attorney General to act by
regulation only. However, inserting a command such as
“shall” instead of “may” would almost certainly obligate the
Attorney General to designate additional particularly serious
crimes, whether or not the Attorney General would otherwise
have done so. Surely Congress did not intend to require the
Attorney General to designate additional crimes as being
“particularly serious” within the meaning of the statute.
Rather, Congress left that decision to the discretion of the
Attorney General. Had Congress intended to allow the
Attorney General to designate other crimes as particularly
serious in any way that s/he chose, rather than relying on “may”
in drafting § 1158(b)(2)(B), Congress would have said
something like: “[t]he Attorney General may designate by
regulation, or otherwise, offenses that will be considered to be
a crime described in clause (ii) . . . of subparagraph (A).” Or,
Congress could have omitted the limiting phrase completely
5
8 U.S.C. § 1158(b)(2)(B)(ii) (emphasis added).
6
Maj. Op. at 13.
7
Id. at 13–14.
2
and just said: “[t]he Attorney General may designate offenses
that will be considered to be a crime described in clause (ii) . .
. of subparagraph (A).” It chose not to do that, so the limiting
phrase that was inserted must mean something.
My colleagues gloss over the fact that they are reading
“by regulation” out of the statute by explaining “[t]his
authorization . . . is permissive and does not preclude the
Attorney General from evaluating, on a case-by-case basis,
whether the facts and circumstances of a conviction also
support concluding that an individual alien committed a
particularly serious crime.” 8 But simply saying the authority
that Congress granted is “permissive” surely cannot negate the
express limitation Congress placed on that permission or the
resulting limitation on how the Attorney General may exercise
that authority. The statute is permissive, but the permission is
not absolute.
A simple and practical hypothetical is illustrative here.
Assume that a child living in Newark, New Jersey asks her
mother for permission to travel to New York City for the
weekend, and the mother responds, “you may go to New York
for the weekend.” Now, imagine the mother’s horror when the
daughter calls from Los Angeles and tells the mother that she
had permission to travel there because the mother simply said
the daughter may go to New York, but did not say that the
daughter may not go to Los Angeles or that she must go to New
York. The daughter’s claim of parental permission would be
no less valid than the grant of congressional permission which
my colleagues rely upon here. Yet, I think it is safe to assume
that the daughter’s explanation would be met with something
less than enthusiastic approval. It is an argument that no parent
would accept, and this Court should not accept it either.
The analogy is not as far afield as the very different
context may suggest. Such “permission by omission” (or more
precisely, license by omission) is exactly what the Majority is
authorizing.
My colleagues explain that “[i]mmigration officials
have proceeded via case-by-case adjudication since the early
8
Id. at 13 (emphasis added).
3
1980s.” 9 They argue that “[w]e presume that Congress was
aware of this procedure in 1996 when it granted the Attorney
General the authority to identify by regulation categories of
crimes that may be deemed per se particularly serious
crimes.” 10 But therein lies the proverbial rub. Congress did
not have to include the limitation “by regulation” when the
statute was amended in 1996. It is much more logical to
conclude that Congress included that limitation because it was
concerned about what immigration officials had been doing
“since the early 1980s,” and wanted to limit the Attorney
General’s exercise of discretion. Why else include the
limitation – “by regulation?” The fact that Congress was aware
of what immigration officials had been doing for 16 years
before adding “by regulation” to the statute is perhaps the
strongest argument against the Majority’s position.
The Majority Opinion attempts to rescue the jettisoning
of this limiting phrase in part by citing to Rossman v. Fleet
Bank (R.I.) National Association, 11 and arguing that we there
relied upon the “‘permissive sense’ of the word ‘may.’” 12
However, Rossman is totally irrelevant to our inquiry here.
There, a borrower sued Fleet Bank arguing that a fee imposed
that was not disclosed in the credit card solicitation violated the
Truth in Lending Act. The bank claimed that the credit
solicitation only had to accurately disclose fees which were
contemplated when it issued the solicitation agreement. The
Act required disclosure of “[a]ny annual fee . . . imposed for
the issuance or availability of a credit card.” 13 A controlling
regulation required disclosure of “[a]ny . . . periodic fee . . .
that may be imposed for the issuance . . . of a credit or charge
card.” 14 The borrower claimed that this meant that Fleet had
to disclose any fee that may ever be imposed for the credit card.
9
Id. (citing Delgado v. Holder, 648 F.3d 1095, 1106 (9th Cir.
2011) (en banc)).
10
Id.
11
280 F.3d 384, 393 (3d Cir. 2002).
12
Maj. Op. at 14 n.4.
13
Rossman, 280 F.3d at 392 (quoting 15 U.S.C. § 1637
(c)(1)(A)(ii)(I)).
14
Id. (quoting 12 C.F.R. § 226.5a(b)(2)) (emphasis in
original).
4
However, applicable provisions of the Truth in Lending Act
allowed the bank to make subsequent changes to fees as long
as they did not “affect the accuracy of a previous disclosure.” 15
We agreed with the District Court’s conclusion that “in this
context” the “use of the word ‘may’ does not compel adoption
of plaintiff’s interpretation.” 16 Context matters; and the
context in which “may” was used in the statute and regulation
at issue in Rossman is wholly unhelpful to our inquiry into
what that word means in the context of 8 U.S.C. §
1158(b)(2)(B)(ii).
My colleagues’ allusion to a second problem with my
interpretation of the asylum statute is not helpful either. They
cite Lorillard v. Pons 17 to argue that we presume Congress was
aware that the Attorney General had been defining new crimes
as serious crimes on a case-by-case basis and that Congress
therefore accepted the practice by subsequently re-enacting the
statute “without change.” 18 However, as I explain in more
detail below, Congress did not reenact the statute “without
change,” it amended it by adding the limitation “by
regulation,” thereby limiting the authority of the Attorney
General.
In order to justify reading “by regulation” out of the
statute, the Majority Opinion also partially relies upon a
discussion of some of the regulatory history and agency and
judicial decisions that preceded the 1996 amendments. 19 That
analysis may have some relevance to an inquiry into the
meaning of an ambiguous statute. However, there is nothing
ambiguous about the phrase “by regulation” or any other part
of the statute that we are discussing, and my colleagues do not
suggest that there is any ambiguity. Accordingly, much of the
discussion in footnote five of the Majority Opinion should
simply be irrelevant to our inquiry here. It is the cardinal canon
of statutory interpretation that a court must begin with the
statutory language. “[C]ourts must presume that a legislature
15
Id.
16
Id. at 393 (emphasis added).
17
434 U.S. 575, 580 (1978).
18
Maj. Op. at 13.
19
Id. at 13–17.
5
says in a statute what it means and means in a statute what it
says there. When the words of a statute are unambiguous, then,
this first canon is also the last: judicial inquiry is complete.” 20
The Majority’s analysis is also contrary to our
obligation to give effect to each word of a statute “so that no
part will be inoperative or superfluous, void or insignificant.”21
Ironically, the Majority Opinion stresses that its reading
“give[s] effect to every word of the statute.” 22 But simply
saying so does not make it so. It completely ignores the
limiting phrase: “by regulation.”
I realize, of course, that the Supreme Court has long
held that courts must presume Congress intended “a sensible
construction” of statutes and that any interpretation that
produces an absurd result suggests that Congress did not intend
that which the text of a statute would otherwise require. 23
However, neither the Majority here, nor the decisions of our
sister courts of appeals that are relied upon, make any serious
attempt to show that limiting the Attorney General to the
regulatory process would create such an absurdity and
therefore counsel against a literal interpretation of “by
regulation.” Merely saying that such a limitation “would
impose an onerous burden,” 24 does not mean that it would
create an absurdity. Many restrictions on government action
may be viewed by some as onerous or burdensome. That is
20
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)
(internal citations and quotations omitted).
21
Corley v. United States, 556 U.S. 303, 314 (2009) (quoting
Hibbs v. Winn, 542 U.S. 88, 101 (2004)).
22
Maj. Op. at 11 (citing Leocal v. Ashcroft, 543 U.S. 1, 12
(2004)) (internal quotation marks omitted).
23
United States v. Kirby, 74 U.S. 482, 486–87 (1868). See
also Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902
F.3d 147, 152 (3d Cir. 2018), reh’g denied (Sept. 17, 2018)
(“Nevertheless, it is also a ‘basic tenet of statutory
construction . . . that courts should interpret a law to avoid
absurd or bizarre results.’”) (quoting In re Kaiser Aluminum
Corp., 456 F.3d 328, 338 (3d Cir. 2006)).
24
Maj. Op. at 17 (quoting Ali v. Achim, 468 F.3d 462, 469
(7th Cir. 2006)).
6
particularly true of restrictions on governmental exercise of
power. Indeed, the entire regimen established under the
Immigration and Nationality Act and related treaties impose
burdens on the Executive’s exercise of authority. But
burdensome limitations do not automatically rise to the level
of an absurdity for purposes of statutory construction.
Nevertheless, my colleagues do insist that limiting the
Attorney General to the regulatory process “would impose an
onerous burden.” 25 However, the “burdens” imposed by
requiring the Attorney General to engage in rulemaking to
supplement the list of crimes that are particularly serious are
not so onerous or impossible as to make the resulting scheme
absurd. To the extent that requiring the Attorney General to
invoke the regulatory process before allowing the Attorney
General to exclude an entire category of persons from
eligibility for a favorable exercise of discretion imposes an
undue burden, it is a burden that Congress, and not the courts,
must mitigate.
II.
My colleagues also rely on decisions of our sister
appellate courts for their conclusion that “by regulation”
includes case-by-case adjudication, but those decisions are
devoid of the kind of analysis that should be required before
ignoring an unambiguous statutory limitation on the authority
of the Attorney General. Most of the cases relied upon by the
Majority contain precious little (if any) analysis of the limiting
phrase “by regulation” in § 1158(b)(2)(B). They merely recite
the statutory text, don jurisprudential blinders, and blithely
conclude that the statute doesn’t say what it says. For example,
in Ali v. Achim, relied on by the Majority, the Court of Appeals
for the Seventh Circuit actually stated: “[n]owhere does [the
statute] purport to prohibit the Attorney General from
determining in a given case that an alien’s nonaggravated
felony is ‘particularly serious’ unless he had the foresight to
explicitly itemize that particular crime by regulation. The
statutory language simply is not susceptible to such a limited
interpretation.” 26 But of course, the statute is not only
susceptible to that interpretation; it says exactly that in
25
Id.
26
468 F.3d at 469.
7
unmistakable language. By its very terms it does “purport to
prohibit the Attorney General from determining in a given case
that an alien’s nonaggravated felony is ‘particularly serious’
unless” the determination is done “by regulation.” The court’s
declaration to the contrary is nothing more than ipse dixit, and
my colleagues’ citation to it is also an ipse dixit; it could not
more clearly conflict with the statutory text.
Similarly, in Delgado, the Court of Appeals for the
Ninth Circuit relied on Ali’s analysis to conclude that, even
though the statute “is silent on case-by-case adjudication,” it
“does not require the Attorney General to anticipate every
adjudication by promulgating a regulation covering each
particular crime.” 27 But the statute is not silent on case-by-case
adjudication. Moreover, the Delgado court was affording
Chevron deference to the BIA.
Two issues relevant to our discussion were before the
court in Delgado. First, whether the withholding statute
limited particularly serious crimes to aggravated felonies; and
second, whether, under the asylum statute, the Attorney
General was limited to the regulatory process in order to
declare other crimes particularly serious. On the first question,
because there was no controlling judicial precedent to guide its
analysis, the court relied upon Chevron and deferred to the
BIA’s interpretation of the statute. The court’s analysis can be
summed up in its statement: “[u]nder Chevron, we owe
deference to the BIA’s interpretation.” 28
The court then decided that “by regulation” also
included case-by-case adjudication, in part by deferring to the
BIA. It stated: “[b]ecause the history of the withholding and
asylum statutes are similar, our conclusion as to the
withholding statute is instructive.” 29 The court then cited the
BIA’s history of case-by-case adjudication and concluded that
“the Attorney General has the authority to designate offenses
as particularly serious crimes through case-by-case
adjudication.” 30 Since the court failed to provide any in-depth
27
648 F.3d at 1106.
28
Id. at 1102.
29
Id. at 1106.
30
Id. (citing Ali, 468 F.3d at 469).
8
analysis of why it could ignore the clear limitation in the
statute, it does not provide much guidance for our inquiry into
the meaning of this unambiguous statute.
The other case that the Majority relies upon for the
proposition that “by regulation” includes case-by-case
adjudication is Gao v. Holder. 31 Gao suffers from similar
flaws. There, the Court of Appeals for the Fourth Circuit cited
to the decision in Ali. It, too, read the explicit limitation, “by
regulation,” out of the statute, concluding that “nothing in the
statute says that the Attorney General must use regulation to
designate crimes as particularly serious.” 32 Thus, as in Ali and
Delgado, the court put on blinders and concluded that the
statute does not say what it says. And, as in Delgado, the court
then proceeded to defer to the BIA’s decision to determine
particularly serious crimes on a case-by-case basis. 33 It
concluded “the choice made between proceeding by general
rule or by individual, ad hoc litigation is one that lies primarily
in the informed discretion of the administrative agency.”34
However, that is clearly not true where, as here, Congress has
imposed limits on the exercise of that informed discretion.
These decisions simply do not provide sufficient support for us
to ignore the text of this unambiguous statute.
Moreover, as my colleagues note, and as I have noted
above, Congress specifically amended the asylum statute to
add the limiting phrase: “by regulation.” 35 I have already
mentioned this, but I think it is worth reiterating that the
limitation was not included in the asylum statute before 1996.36
The statute simply barred asylum where the alien committed
any aggravated felony. The Attorney General did not have any
authority to deny asylum based on the commission of any other
31
595 F.3d 549 (4th Cir. 2010).
32
Id. at 556.
33
Id. at 556–57.
34
Id. at 556 (citing SEC v. Chenery Corp., 332 U.S. 194, 203
(1947)).
35
See Omnibus Consolidated Appropriations Act, 1997, Pub.
L. No. 104–208, div. C., tit. VI, § 604(a), 110 Stat 3009.
36
See, e.g., 8 U.S.C. § 1158 (1996); 8 U.S.C. § 1158 (1994).
9
category of crime. 37 If we are to give each word in the statute
meaning, 38 we must conclude that Congress specifically added
“by regulation” to give the Attorney General a power which he
did not already possess. “When Congress acts to amend a
statute, we presume it intends its amendment to have real and
substantial effect.” 39 Congress clearly thought that the
Attorney General needed authority to designate other offenses
as particularly serious crimes “by regulation.” If my
colleagues are correct and adding “by regulation” does not
limit the Attorney General to the regulatory process, then that
phrase in the 1996 amendment is absolutely meaningless.
However, that conclusion violates our obligation to give
meaning to every word of a statute. If a congressional grant of
authority was necessary to allow the Attorney General to
designate offenses as particularly serious “by regulation,” then
the Attorney General should need a congressional grant of
authority to designate offenses as particularly serious by BIA
adjudication.
III.
Accordingly, for all the reasons I have set forth above,
I must respectfully dissent.
37
See 8 U.S.C. § 1158(d) (1996).
38
Leocal, 543 U.S. at 12 (“[W]e must give effect to
every word of a statute wherever possible.”).
39
Stone v. I.N.S., 514 U.S. 386, 397 (1995).
10
Carlos Eduardo Bastardo-Vale v. Attorney General
of the United States
No. 17-2017
AMBRO, Circuit Judge, dissenting
I join in full Judge McKee’s dissent relating to the
interpretation of “by regulation” in 8 U.S.C. § 1158(b)(2)(B),
which deals with asylum. Thus, I write only with respect to
whether a “particularly seriously crime” in the withholding-of-
removal provision of 8 U.S.C. § 1231(b)(3)(B) covers more
than an aggravated felony. It reads in part as follows:
[Withholding of removal] does not apply. . . if
the Attorney General decides that—
(ii) the alien, having been
convicted by a final judgment of a
particularly serious crime is a
danger to the community of the
United States;
...
For the purposes of clause (ii), 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.
Judge Shwartz, writing for the majority, holds that a
“particularly serious crime” is not limited to an aggravated
felony. This overrules the contrary reading of Alaka v.
Attorney General, 456 F.3d 88, 104-05 (3rd Cir. 2006), a
decision I authored as a matter of statutory interpretation.
Though I disagree with our new interpretation, I commend
Judge Shwartz for construing the withholding-of-removal
provision in that analytical framework instead of focusing on
whether the BIA’s decision, rendered after Alaka, in In re: M -
H, 26 I & N Dec. 46 (BIA 2012), is entitled to Chevron
deference, an issue neither briefed nor decided in Alaka.
I do, however, continue to believe that Alaka got this
right, and that the majority misreads the language of the
withholding-of-removal statute. The first sentence of the
clarifying paragraph makes all aggravated felonies carrying a
sentence of more than five years particularly serious; the
second, which expressly refers back to “[t]he previous
sentence,” authorizes the Attorney General to declare certain
other crimes as particularly serious “notwithstanding the length
of sentence imposed.” On its face this appears to mean that the
Attorney General’s discretion qualifies only aggravated
felonies that resulted in a prison sentence of less than five
years, and it does not extend to other crimes. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 154 (2012) (“A proviso conditions the principal
matter that it qualifies—almost always the matter immediately
preceding.”).
Thus the provision creates a three-tiered system: (1)
certain aggravated felonies automatically are particularly
serious (those with actual, aggregated prison sentences of at
least five years); (2) other aggravated felonies with lesser
prison sentences can be considered particularly serious on a
2
case-by-case basis free of the need to do so by regulation; and
(3) all other crimes are not particularly serious. 1
The majority holds to the contrary that the Attorney
General’s power conferred by the second sentence is
effectively unlimited, but this does not fit the language of the
statute. If that had been Congress’s intent, it would have
worded the provision differently, either adding “for any crime”
after “notwithstanding the length of sentence imposed” or
simply stating that “the previous sentence shall not preclude
the Attorney General from determining in any other case that
an alien has been convicted of a particularly serious crime.”
Yet Congress did not enact any such addition. Neither should
a court.
I respectfully dissent.
1
This is different from the asylum statute, which creates only
two tiers: aggravated felonies, all of which are particularly
serious, and all other crimes, which may “by regulation” be
designated as particularly serious. 8 U.S.C.
§ 1158(b)(2)(B)(ii).
3