Anthony Alphonsus v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY ALOYSIUS ALPHONSUS, No. 10-73298

Petitioner,

Agency No.

v. A070-942-161

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 8, 2012—Pasadena, California

Filed January 18, 2013

Before: Harry Pregerson, Susan P. Graber,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge Graber

2 ALPHONSUS V . HOLDER

SUMMARY*

Immigration

The panel granted in part and denied in part a petition for

review of the Board of Immigration Appeals’ denial of an

application for withholding of removal and protection under

the Convention Against Torture to a native and citizen of

Bangladesh.

The panel held that it had jurisdiction to review the

Board’s particularly serious crime determination under

8 U.S.C. § 1252(a)(2)(D) because petitioner’s challenges

were premised on constitutional and legal considerations.

The panel rejected petitioner’s facial constitutional challenge

to the particularly serious crime statute, but held that the

Board abused its discretion in concluding that petitioner’s

conviction for resisting arrest, in violation of Cal. Penal Code

§ 69, constituted a particularly serious crime, because the

Board failed to adequately explain how the result in this case

fits within the statutory language or any current framework

created by Board precedent. The panel remanded for further

consideration and explanation of the particularly serious

crime issue.

The panel held that petitioner failed to establish a clear

probability of torture in Bangladesh due to his Christian

religion.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALPHONSUS V . HOLDER 3

Judge Graber dissented from the portion of the majority

opinion rejecting the Board’s rationale that petitioner’s crime

was particularly serious because it created a meaningful risk

of harm to others. Judge Graber concurred as to the other

parts of the opinion, and the result. Judge Graber also wrote

separately to suggest that the court should reconsider en banc

its exception to 8 U.S.C. § 1252(a)(2)(C)’s jurisdiction

stripping provisions for aggravated felons where the Board

denied CAT relief on the merits.

COUNSEL

Matthew L. Hoppock, Dunn & Davison, LLC, Kansas City,

Missouri, pro bono counsel for Petitioner.

Tony West, Assistant Attorney General, Civil Division; Terri

J. Scadron, Assistant Director; and Corey L. Farrell (argued),

Attorney, United States Department of Justice, Washington,

D.C., for Respondent.

OPINION

BERZON, Circuit Judge:

Our case concerns the “particularly serious crime”

concept embodied in our immigration statutes, recently the

subject of an extensive opinion by an en banc panel of this

Court. See Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011)

(en banc). After deciding various other issues, Delgado

remanded the case to the Board of Immigration Appeals

(“BIA” or “Board”), concluding that the BIA had not

adequately explained why the crime in that case fit into the

4 ALPHONSUS V . HOLDER

“particularly serious crime” category and therefore barred

withholding of removal relief (and asylum relief, not here at

issue) for the otherwise removable petitioner in that case. We

reach a similar result here, remanding after reviewing in some

detail the BIA’s “particularly serious crime” precedents and

determining that the Board has not adequately explained how

the result in this case fits within any current framework

created by those precedents.

More specifically, Anthony Aloysius Alphonsus petitions

for review of a BIA decision ordering him removed to his

native Bangladesh. The BIA affirmed the immigration

judge’s (“IJ”) determination that Alphonsus is ineligible for

withholding of removal and withholding under the

Convention Against Torture (“CAT”), because his conviction

for resisting arrest constitutes a particularly serious crime.

The Board also affirmed the IJ’s conclusion that Alphonsus

would not likely be tortured if returned to Bangladesh and is

ineligible for deferral of removal under CAT. Alphonsus

challenges the BIA’s determination that he was convicted of

a particularly serious crime and its conclusion that he is not

likely to be tortured in Bangladesh. Because the Board has

not adequately explained its reasons for designating

Alphonsus’s conviction a particularly serious crime, we grant

the petition with respect to the particularly serious crime

determination and remand to the BIA for an appropriate

explanation. As to Alphonsus’s CAT claim for deferral of

removal, we deny the petition.

I. Background

Alphonsus is a native and citizen of Bangladesh. Around

1976 or 1977, Muslims in Bangladesh started attacking

ALPHONSUS V . HOLDER 5

Alphonsus on account of his Christian beliefs.1 The first

incident occurred when Alphonsus was roughly sixteen years

old. Several Muslims beat him severely, threatened him, and

threw him off a bridge. As a result of the fall, Alphonsus

broke his leg and had to go to the hospital. Alphonsus fled to

India and stayed there for about a year. After he returned to

Bangladesh, the beatings resumed. Alphonsus made several

reports to the police; they only made fun of him, spat on him,

or chased him away.

Around 1987, a group of Muslims kidnaped Alphonsus

and took him to an undisclosed location; there they beat him,

hit him with a machete, and threatened to kill him. Roughly

two months later, Alphonsus was beaten and stabbed in the

hand. Around this time, several of Alphonsus’s friends were

killed on account of their Christian beliefs.

At that point, Alphonsus decided to seek refuge in the

United States. He was admitted as a nonimmigrant on

February 24, 1988, and adjusted his status to lawful

permanent resident several years later. When he last spoke

with his family members in Bangladesh, around 1997, they

told him that the people who had threatened him were still

looking for him.

Before the events at issue in this case, Alphonsus had

been convicted of several offenses, including petty theft,

driving under the influence, and injury of a spouse. Two

months after being paroled on a prior conviction, Alphonsus

shoplifted about $131 of merchandise from a Rite-Aid. As

1

Neither the BIA nor the IJ made an adverse credibility finding. W e

therefore assume the truth of Alphonsus’s factual contentions. See Cole

v. Holder, 659 F.3d 762, 770 (9th Cir. 2011).

6 ALPHONSUS V . HOLDER

Alphonsus left the store, a police officer ordered him to stop,

but he ran instead. According to a government-submitted

police report, Alphonsus ran through traffic, forcing vehicles

to stop suddenly to avoid striking him. A police officer on

motorcycle approached Alphonsus and ordered him to stop

running, but Alphonsus continued to flee. Dismounting his

motorcycle, the officer ran after Alphonsus, who stopped and

“presented his body in a fighting type stance, even after being

told numerous times by [the officer] to lay on the ground.”

The officer thereupon grabbed hold of Alphonsus’s shirt, but

Alphonsus struggled, causing the officer to lose hold of the

shirt. When the officer again tried to grab Alphonsus and

“assist him to the ground,” Alphonsus pushed the officer’s

upper body with both hands, causing the officer to land in “a

medium sized flower bed.”

The officer regained his balance and resumed the chase.

Once again, Alphonsus darted through traffic, causing

vehicles to stop suddenly. Drawing his taser, the officer

issued several commands for Alphonsus to stop. Eventually,

Alphonsus turned and raised his hands in what seemed to be

“another fighting stance,” but the officer successfully

deployed the taser, causing Alphonsus to fall to the ground.

He was taken into custody shortly thereafter.

Alphonsus was convicted of petty theft with priors, in

violation of California Penal Code § 666, and resisting an

executive officer, in violation of California Penal Code § 69.2

2

California Penal Code § 69 states: “Every person who attempts, by

means of any threat or violence, to deter or prevent an executive officer

from performing any duty imposed upon such officer by law, or who

knowingly resists, by the use of force or violence, such officer, in the

performance of his duty, is punishable by a fine not exceeding ten

ALPHONSUS V . HOLDER 7

He was sentenced to sixteen months’ imprisonment on each

count, to run concurrently.

After Alphonsus’s release, the Department of Homeland

Security (“DHS”) initiated removal proceedings. Because

Alphonsus had two convictions for petty theft with priors, the

government charged him with removability under 8 U.S.C.

§ 1227(a)(2)(A)(ii) as an alien who has been convicted of two

crimes of moral turpitude after admission, and under

§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated

felony, specifically a theft or burglary offense.3 Alphonsus

applied for asylum, withholding of removal, and protection

under CAT. The IJ sustained both charges of removability

and determined that Alphonsus’s aggravated felony

conviction renders him ineligible for asylum.

As to the application for relief from removal, the IJ

explicitly declined to find that Alphonsus’s conviction for

resisting arrest constitutes an aggravated felony crime of

violence. But he held that the resisting arrest conviction does

constitute a “particularly serious crime,” rendering Alphonsus

ineligible for withholding of removal. In so holding, the IJ

made two points. First, he stated: “[O]n looking at the

elements of this crime, the facts and circumstances that gave

rise to the crime, from the police report, the respondent’s

testimony, this Court is satisfied that the very nature of this

type of crime, resisting an executive officer in the

thousand dollars ($10,000), or by imprisonment pursuant to subdivision

(h) of Section 1170, or in a county jail not exceeding one year, or by both

such fine and imprisonment.”

3

DHS did not assert that Alphonsus’s theft offenses constitute

particularly serious crimes.

8 ALPHONSUS V . HOLDER

performance of his lawful duties, is just exactly the type of

crime that makes [Alphonsus] a danger to the community.

This is a particularly serious crime.” Second, the IJ added:

“[B]ased upon that analysis, and taking into consideration the

Government’s analysis that this is the type of a crime that not

only is a crime against the officer, but it is a crime against the

orderly pursuit of justice in the United States by its

commission, that it also qualifies as a particularly serious

crime.”

With respect to Alphonsus’s CAT claim, the IJ reviewed

Alphonsus’s testimony and the documentary evidence in the

record. Relying on the documentary evidence, including the

country reports submitted by both Alphonsus and the

government, the IJ found that Alphonsus had not shown that

he would more likely than not be persecuted with government

acquiescence and, accordingly, denied Alphonsus’s

application for deferral of removal under CAT.

Alphonsus appealed to the BIA, challenging the IJ’s

conclusions that he is ineligible for withholding of removal

and protection under CAT. A divided panel of the BIA

affirmed.

The BIA agreed with the IJ’s finding that Alphonsus’s

crime “was not only a crime against the officer, but ‘a crime

against the orderly pursuit of justice in the United States.’”

The Board further stated that Alphonsus’s actions “created a

meaningful risk of harm to others and to the officer by the

manner in which he tried to escape arrest.” Board Member

Linda Wendtland dissented in part, stating: “Although the

conduct of which [Alphonsus] was convicted was

reprehensible, it did not rise to a level sufficiently serious to

bar him from withholding of removal.”

ALPHONSUS V . HOLDER 9

As for Alphonsus’s CAT claim, the BIA found that the IJ

“aptly surveyed the country conditions evidence submitted by

[Alphonsus].” Agreeing with the IJ’s determination that the

Bangladeshi government is making an effort to improve

religious harmony in the country, the Board accordingly

concluded that “the record is insufficient to demonstrate that

[Alphonsus] is likely to be tortured by the government or by

private actors with the acquiescence of governmental

authorities given his status as a Pentecostal.”

II. Jurisdiction

The government argues that the Immigration and

Nationality Act’s (“INA”) bar to review for criminal aliens,

8 U.S.C. § 1252(a)(2)(C), deprives us of jurisdiction to

review Alphonsus’s challenges to the BIA’s decision, as

Alphonsus was ordered removed because of convictions for

crimes involving moral turpitude and an aggravated felony.

We need not decide whether the bar applies to Alphonsus.

See, e.g., Bromfield v. Mukasey, 543 F.3d 1071, 1075–76 &

n.4 (9th Cir. 2008). Even if it did, that circumstance would

not deprive us of jurisdiction over either of Alphonsus’s

challenges. Alphonsus’s challenges are premised on

constitutional and legal considerations and are not fact-based.

Compare Pechenkov v. Holder, No. 08-73287, 2012 WL

5995430, at *4 (9th Cir. Dec. 3, 2012). We therefore have

jurisdiction over those challenges to the Board’s

determination that Alphonsus committed a particularly

serious crime, pursuant to 8 U.S.C. § 1252(a)(2)(D). See

Anaya-Ortiz v. Holder, 594 F.3d 673, 676, 679–80 (9th Cir.

2010). We also have jurisdiction over Alphonsus’s CAT

challenge, because the IJ did not rely on Alphonsus’s

conviction in denying deferral of removal under CAT but

instead denied relief on the merits. See Pechenkov, 2012 WL

10 ALPHONSUS V . HOLDER

5995430, at *4; Morales v. Gonzales, 478 F.3d 972, 980 (9th

Cir. 2007).4

III. Withholding of Removal

Alphonsus raises two principal challenges to the Board’s

particularly serious crime determination: (1) that the

particularly serious crime bar is unconstitutionally vague; and

(2) that the BIA’s application of the particularly serious crime

bar to this case was arbitrary and capricious, because

inadequately explained. We address each contention in turn.

Before doing so, we begin by surveying the history of the

particularly serious crime bar, as doing so illuminates our

later discussions of Alphonsus’s specific arguments.

A. History of the Particularly Serious Crime Bar

Both the withholding of removal obligation and the

particularly serious crime exception to that obligation trace

their origins to Article 33 of the 1951 United Nations

Convention Relating to the Status of Refugees, 19 U.S.T.

5269, 189 U.N.T.S. 150 (“the Convention”). Article 33(1) of

the Convention established the obligation not to remove an

alien to a country where he is likely to face persecution on

account of his race, religion, nationality, membership in a

particular social group, or political opinion.5 Article 33(2), in

4

The government concedes that our precedent forecloses a jurisdictional

challenge to the examination of Alphonsus’s CAT claim in this case and

raises the criminal alien review bar in this respect only to preserve the

challenge.

5

Article 33(1) states: “No Contracting State shall expel or return

(‘refouler’) a refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened on account of his

ALPHONSUS V . HOLDER 11

turn, enumerates two exceptions to the withholding of

removal obligation established in the previous paragraph: (1)

a danger to national security exception; and (2) a particularly

serious crime exception.6 Both the duty of nonremoval and

the exceptions to that duty were adopted by the United States

when it acceded to the 1967 Protocol Relating to the Status of

Refugees, 19 U.S.T. 62223, 606 U.N.T.S. 267 (“the

Protocol”), which incorporates Article 33 of the Convention.

See Delgado, 648 F.3d at 1100.

Congress subsequently passed the Refugee Act of 1980

(“the 1980 Act”) to bring United States refugee law into

conformance with the nation’s treaty obligations under the

Protocol. See Barapind v. Reno, 225 F.3d 1100, 1106 (9th

race, religion, nationality, membership of a particular social group or

political opinion.”

6

Article 33(2) provides: “The benefit of the [withholding of removal]

provision may not . . . be claimed by a refugee whom there are reasonable

grounds for regarding as a danger to the security of the country in which

he is, or who, having been convicted by a final judgment of a particularly

serious crime, constitutes a danger to the community of that country.”

Although neither the Protocol nor the Convention defines the term

“particularly serious crime,” one academic leading commentator on the

Convention suggested that only “clearly antisocial” crimes

“demonstrat[ing] a complete or near complete lack of social and moral

inhibitions” may appropriately fall within the “particularly serious crime”

bar contained in Article 33(2). Atle Grahl-Madsen, Commentary on the

Refugee Convention, 1951, art. 33 cmt. 10 (1997). He provides, as

examples of such crimes: “the blowing up of a passenger airplane in order

to collect life insurance” or “wanton killing in a public place.” Id. In INS

v. Cardoza-Fonseca, the Supreme Court referred to Professor Grahl-

Madsen as a “leading authority” and invoked his analysis. See 480 U.S.

421, 431 (1987) (citing 1 A. Grahl-Madsen, The Status of Refugees in

International Law 180 (1966)).

12 ALPHONSUS V . HOLDER

Cir. 2000). The 1980 Act amended § 243(h) of the INA to

read, in relevant part:

(1) The Attorney General shall not deport

or return any alien (other than an alien

described in section 241(a)(19)) to a country

if the Attorney General determines that such

alien’s life or freedom would be threatened in

such country on account of race, religion,

nationality, membership in a particular social

group, or political opinion.

(2) Paragraph (1) shall not apply to any

alien if the Attorney General determines

that—,

(A) the alien ordered, incited, assisted,

or otherwise participated in the persecution of

any person on account of race, religion,

nationality, membership in a particular social

group, or political opinion;

(B) the alien, having been convicted by

a final judgment of a particularly serious

crime, constitutes a danger to the community

of the United States;

(C) there are serious reasons for

considering that the alien has committed a

serious nonpolitical crime outside the United

States prior to the arrival of the alien in the

United States; or

ALPHONSUS V . HOLDER 13

(D) there are reasonable grounds for

regarding the alien as a danger to the security

of the United States.

Pub. L. No. 96-212, § 203(e), 94 Stat. 102, 107 (1980)

(emphasis added).

Matter of Frentescu, the BIA’s seminal decision

interpreting the meaning of “particularly serious crime” under

the 1980 Act, observed that neither the Act nor the Protocol

nor the Handbook on Procedures and Criteria for

Determining Refugee Status (Geneva, 1979) (“the

Handbook”) defined the term. 18 I. & N. Dec. 244, 245–46

(B.I.A. 1982).7 The BIA pointed out, however, that “the

specific language chosen by Congress reflects that a

‘particularly serious crime’ is more serious than a ‘serious

nonpolitical crime,’”8 and referred to the definition of

“serious nonpolitical crime” found in the Handbook:

What constitutes a “serious” non-political

crime for the purposes of this exclusion clause

is difficult to define, especially since the term

7

The Handbook, which is issued by the United Nations High

Commission for Refugees, “provides significant guidance in construing

the Protocol, to which Congress sought to conform.” Cardoza-Fonseca,

480 U.S. at 439 n.22.

8

Like the particularly serious crime bar, the serious non-political crime

bar derives from the Convention, Article 1(F)(b) of which provides that

the Convention’s provisions— including the protection of withholding of

removal— “shall not apply to any person with respect to whom there are

serious reasons for considering that . . . [h]e has committed a serious non-

political crime outside the country of refuge prior to his admission to that

country as a refugee.”

14 ALPHONSUS V . HOLDER

“crime” has different connotations in different

legal systems. In some countries the word

“crime” denotes only offences of a serious

character. In other countries it may comprise

anything from petty larceny to murder. In the

present context, however, a “serious” crime

must be a capital crime or a very grave

punishable act. Minor offences punishable by

moderate sentences are not grounds for

exclusion under Article 1 F(b) even if

technically referred to as “crimes” in the penal

law of the country concerned.

A refugee committing a serious crime in

the country of refuge is subject to due process

of law in that country. In extreme cases,

Article 33 paragraph 2 of the Convention

permits a refugee’s expulsion or return to his

former home country if, having been

convicted by a final judgment of a

“particularly serious” common crime, he

constitutes a danger to the community of his

country of refuge.

Id. at 245–46 (quoting Handbook ¶¶ 155, 154) (emphases

added).

Frentescu neither adopted a precise definition of what

constitutes a particularly serious crime nor set forth any

comprehensive list of crimes falling within the definition. Id.

at 247. The Board instead concluded that, although certain

crimes are inherently “particularly serious,” “the record in

most proceedings will have to be analyzed on a case-by-case

basis” and identified several “factors” relevant to that inquiry,

ALPHONSUS V . HOLDER 15

including: “the nature of the conviction, the circumstances

and underlying facts of the conviction, the type of sentence

imposed, and, most importantly, whether the type and

circumstances of the crime indicate that the alien will be a

danger to the community.” Id. The BIA further clarified that

“[c]rimes against persons are more likely to be characterized

as ‘particularly serious crimes,’” but cautioned that “there

may be instances where crimes (or a crime) against property

will be considered as such crimes.” Id. Subsequently, in

Matter of Carballe, 19 I. & N. Dec. 357, 359–60 (B.I.A.

1986), the Board determined that the statutory particularly

serious crime provision does not require that, in addition to

the determination that the alien has been convicted of a

particularly serious crime, the government make an

independent determination that the alien represents a future

danger to the community. See also 8 C.F.R. § 1208.16(d)(2);

Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987).

But Carballe accepted and reiterated Frentescu’s reliance on

dangerousness as the sine qua non of a particularly serious

crime, stating that the “essential key” to “determining

whether a conviction is for [a particularly serious crime]” is

“whether the nature of the crime is one which indicates that

the alien poses a danger to the community.” 19 I. & N. Dec.

at 360; see also Hamama v. INS, 78 F.3d 233, 240 (6th Cir.

1996).

Section 515(a)(2) of the Immigration Act of 1990 (“the

1990 Act”) obviated the need for a case-specific

Frentescu/Carballe analysis for aggravated felonies by

amending § 243(h)(2) of the INA to state that any “alien who

has been convicted of an aggravated felony shall be

considered to have committed a particularly serious crime.”

Pub. L. No. 101-649, 104 Stat. 4978, 5053 (1990); see

Mosquera-Perez v. INS, 3 F.3d 553, 557 (1st Cir. 1993). The

16 ALPHONSUS V . HOLDER

agency “continued to adjudicate [non-aggravated felony]

particularly serious crimes on a case-by-case basis.”

Delgado, 648 F.3d at 1104; see Matter of B-, 20 I. & N. Dec.

427, 430–31 (B.I.A. 1991).

At the time Congress passed the 1990 Act, only a small

number of especially grave offenses had been designated

“aggravated felonies.” See Pub L. No. 100-690, § 7342, 102

Stat. 4181, 4469–70 (1988 version of the INA) (defining

“aggravated felony” as: “murder; any drug trafficking crime,

. . . or any illicit trafficking in any firearms or destructive

devices”); see also Pub. L. No. 101-649, § 501, 104 Stat.

4978, 5048 (the 1990 Act) (adding money laundering and

crimes of violence for which the term of imprisonment is at

least five years to the list of aggravated felonies). In Matter

of C-, 20 I. & N. Dec. 529, 534 (B.I.A. 1992), the BIA

observed that the relatively short list of aggravated felony

offenses then in existence “cover[ed] the vast majority of

crimes [it] would have previously determined to be

particularly serious crimes.” The BIA further noted,

however:

There will of course continue to be

situations requiring a determination whether

a “particularly serious crime” exists under

Frentescu; such is the case, for example,

where the crime does not technically qualify

as an aggravated felony under the Act based

on the conviction date . . .; the withholding

request precedes November 29, 1990; or,

perhaps, where the crime falls outside the

ALPHONSUS V . HOLDER 17

definition of aggravated felony but should,

under the analysis of Frentescu, be deemed a

particularly serious crime.

Id. at 535 n.3 (emphasis added) (citation omitted).

The definition of “aggravated felony” under the INA did

not, however, remain focused on “very” grave crimes, let

alone on “extreme cases.” See Frentescu, 18 I. & N. Dec. at

246 (quoting Handbook ¶¶ 155, 154). Instead, the

Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 214 (“AEDPA”), expanded the

definition of “aggravated felony” to encompass a much wider

range of offenses, thereby substantially enlarging the scope

of the particularly serious crime exception through that

exception’s incorporation of all aggravated felonies. As a

result of this expansion, Congress became concerned that

some of the newly designated aggravated felonies “might be

considered less serious than those the Protocol intended to

cover” under the particularly serious crime exception.

Choeum v. INS, 129 F.3d 29, 42 (1st Cir. 1997).9 To address

this concern, § 413(f) of AEDPA amended § 243(h) of the

INA to allow the Attorney General to override the categorical

treatment of aggravated felonies as particularly serious

9

As Senator Kennedy opined when discussing a proposed amendment

to an immigration bill under consideration at the same time as the AEDPA

bill: “[T]o declare an aggravated felon anyone convicted of an offense

involving imprisonment of one year, . . . means that people with fairly

minor offenses would be ineligible to seek withholding of deportation,

[which in many] instances may violate the Refugee Convention.”

Immigration Control and Financial Responsibility Act of 1996: Mark-up

on S. 1664 before the Senate Committee on the Judiciary, 104th Cong., 2d

Sess. 60–61 (1996); see also Matter of Q-T-M-T-, 21 I. & N. Dec. 639,

648 & n.4 (B.I.A. 1996) (en banc).

18 ALPHONSUS V . HOLDER

crimes, “when ‘necessary to ensure compliance with the 1967

United Nations Protocol Relating to the Status of Refugees.’”

Delgado, 648 F.3d at 1104 (citing 110 Stat. at 1269).

Interpreting the relevant AEDPA provisions in Matter of

Q-T-M-T-, 21 I. & N. Dec. 639, 653–54 (B.I.A. 1996) (en

banc), the BIA held that an alien convicted of an aggravated

felony or felonies and sentenced to at least five years of

incarceration was conclusively convicted of a particularly

serious crime and barred from withholding of removal, but

that an alien convicted of an aggravated felony or felonies

and sentenced to an aggregate of less than five years’

imprisonment would be subject only to a rebuttable

presumption that he had been convicted of a particularly

serious crime, barring eligibility for withholding of removal.

In applying this rebuttable presumption analysis, the BIA

emphasized that it would “look to the nature and

circumstances of the crime to determine whether the alien,

having been convicted of that crime, can be said to represent

a danger to the community of the United States.” Id. at 654

(citing Carballe, 19 I. & N. Dec. at 360–61; Frentescu, 18 I.

& N. Dec. 244).

The effect of Matter of Q-T-M-T- was short-lived. A few

months after Congress enacted the override provision of

AEDPA on which Q-T-M-T- rested, the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub L.

No. 104-208, div. C, § 305(a)(3), 110 Stat. 3009-546

(“IIRIRA”), again expanded the list of crimes designated as

aggravated felonies, primarily by reducing, from five years to

one, the minimum penalty necessary for several offenses to

qualify as aggravated felonies. See id. § 321(a)(3), (10), (11).

Along with this additional expansion of the aggravated felony

list, Congress altered the scope of the particularly serious

ALPHONSUS V . HOLDER 19

crime bar by eliminating the categorical designation of

aggravated felonies as particularly serious crimes for

withholding of removal purposes. See Delgado, 648 F.3d at

1104–05; Matter of N-A-M-, 24 I. & N. Dec. 336, 339–40

(B.I.A. 2007). In particular, § 305(a) of the IIRIRA changed

the definition of “particularly serious crime” for withholding

purposes by adding the following paragraph to § 241(b)(3) of

the INA:

For purposes of clause (ii) [establishing the

particularly serious bar], an alien who has

been convicted of an aggravated felony (or

felonies) for which the alien has been

sentenced to an aggregate term of

imprisonment of at least 5 years shall be

considered to have committed a particularly

serious crime. The previous sentence shall

not preclude the Attorney General from

determining that, notwithstanding the length

of sentence imposed, an alien has been

convicted of a particularly serious crime.

110 Stat. at 3009-602 (codified at 8 U.S.C.

§ 1231(b)(3)(B)(iv)). Because the IIRIRA eliminated the

categorical equation of aggravated felonies and particularly

serious crimes, the BIA returned to the Frentescu/Carballe

approach—abandoning the “rebuttable presumption” analysis

of Q-T-M-T- —for aggravated felony convictions involving

aggregate sentences of less than five years’ imprisonment.

See Matter of L-S-, 22 I. & N. Dec. 645, 651 (B.I.A. 1999).

With regard to convictions for crimes other than aggravated

felonies, the Board continued to apply the Frentescu/Carballe

approach. See id. at 651 n.7.

20 ALPHONSUS V . HOLDER

The BIA subsequently held, in Matter of N-A-M-, that

§ 1231(b)(3)(B) does not limit its authority to designate a

non-“aggravated felony” as a particularly serious crime. See

24 I. & N. Dec. at 341; see also Delgado, 648 F.3d at

1103–05 (extending Chevron deference to this interpretation

of § 1231(b)(3)(B)). In describing its approach to

determining whether a given crime is particularly serious, the

Board stated that it continues to apply the Frentescu standard,

with two significant modifications. See N-A-M-, 24 I. & N.

Dec. at 342. First, the BIA explained that, “[a]s set forth in

Matter of Carballe, the proper focus for determining whether

a crime is particularly serious is on the nature of the crime

and not the likelihood of future serious misconduct.” Id.

(citation omitted). Second, the Board added, “the sentence

imposed is not a dominant factor in determining whether a

conviction is for a particularly serious crime.” Id. at 343

(citing Matter of Y-L-, A-G-, R-S-R-, 23 I. & N. Dec. 270,

273–74, 277–78 (Att’y Gen. 2002)).

As demonstrated by the BIA’s continued reliance on

Carballe, N-A-M- did not countenance any change in the

Board’s longstanding focus on dangerousness as the

“essential key” to determining whether an alien’s conviction

constitutes a conviction for a particularly serious crime.

Rather, N-A-M- properly distinguished “dangerousness,” the

pivotal standard by which particularly serious crimes are

judged, from the list of factors the government may consider

in determining whether that standard is met. See id. at

341–43. Thus, in Delgado, we formulated the currently

operative legal standard as follows: “[A] crime is particularly

serious if the nature of the conviction, the underlying facts

and circumstances and the sentence imposed justify the

presumption that the convicted immigrant is a danger to the

community.” 648 F.3d at 1107 (emphasis added) (citing

ALPHONSUS V . HOLDER 21

N-A-M-, 24 I. & N. Dec. at 342; Carballe, 19 I. & N. Dec. at

360).

B. Vagueness

Against this background, we first evaluate Alphonsus’s

vagueness challenge. Alphonsus raises a facial constitutional

challenge to 8 U.S.C. § 1231(b)(3)(B)(ii), maintaining that

the provision is unconstitutionally vague because the statute

provides no definition of “particularly serious crime.” “[T]he

void-for-vagueness doctrine requires that a penal statute

define the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited

and in a manner that does not encourage arbitrary and

discriminatory enforcement.” Kolender v. Lawson, 461 U.S.

352, 357 (1983). Although § 1231(b)(3)(B)(ii) is not a

criminal statute, we entertain Alphonsus’s vagueness

challenge because of the harsh consequences attached to a

particularly serious crime determination and the attendant

denial of withholding of removal. See Jordan v. De George,

341 U.S. 223, 230–31 (1951) (reviewing a vagueness

challenge to the “crime involving moral turpitude”

designation, “in view of the grave nature of deportation”).

“A facial challenge to a legislative Act is, of course, the

most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists

under which the [statute] would be valid.” United States v.

Salerno, 481 U.S. 739, 745 (1987).10 Thus, to succeed on a

10

There are two exceptions to this rule. In the First Amendment

context, the overbreadth doctrine “allows a plaintiff ‘to challenge a statute

not because their own rights of free expression are violated, but because

of a judicial prediction or assumption that the statute’s very existence may

22 ALPHONSUS V . HOLDER

facial vagueness challenge under the Fifth Amendment’s Due

Process Clause, the challenger must “prove that the

enactment is vague ‘not in the sense that it requires a person

to conform his conduct to an imprecise but comprehensible

normative standard, but rather in the sense that no standard of

conduct is specified at all.’” Vill. of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982).

Put another way, he must demonstrate that the “provision

simply has no core.” Id. (internal quotation marks omitted).11

In evaluating whether a statute is facially vague, we take into

account the Board’s binding administrative constructions of

the relevant provision. See, e.g., Hess v. Bd. of Parole &

Post-Prison Supervision, 514 F.3d 909, 914 (9th Cir. 2008).

cause others not before the court to refrain from constitutionally protected

speech or expression.’” Nunez by Nunez v. City of San Diego, 114 F.3d

935, 949 (9th Cir. 1997) (quoting Broadrick v. Oklahoma, 413 U.S. 601,

612 (1973)). Additionally, “a facial challenge to an abortion statute will

succeed where, ‘in a large fraction of the cases in which [the statute] is

relevant, it will operate as a substantial obstacle to a woman’s choice to

undergo an abortion’ (emphasis added).” Planned Parenthood of Idaho,

Inc. v. Wasden, 376 F.3d 908, 920–21 (9th Cir. 2004) (alteration in

original) (quoting Planned Parenthood of Se. Penn. v. Casey, 505 U.S.

833, 895 (1992)). Outside the First Amendment and abortion contexts, we

have not recognized any other exceptions to Salerno’s “no set of

circumstances” standard for facial challenges, including facial challenges

premised on vagueness. See S.D. Myers, Inc. v. City & Cnty. of San

Francisco, 253 F.3d 461, 467 (9th Cir. 2001).

11

In City of Chicago v. Morales, a Supreme Court plurality cast some

doubt on the “no set of circumstances” requirement for facial challenges

under the void-for-vagueness doctrine. 527 U.S. 41, 55 n.22 (1999). W e,

however, continue to apply the “no set of circumstances” standard “[u]ntil

a majority of the Supreme Court directs otherwise.” Hotel & Motel Ass’n

of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir. 2003).

ALPHONSUS V . HOLDER 23

Contrary to Alphonsus’s submission, § 1231(b)(3)(B)(ii)

most certainly has a core set of criminal convictions to which

it applies. First, and most importantly, the statutory text

indicates that the key to determining whether a crime is

particularly serious is whether the nature of the crime shows

that the alien poses a danger to the community of the United

States. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA has

interpreted the statute accordingly, emphasizing that harm to

persons is the usual requisite danger, while leaving open the

possibility that some crimes involving injury to property may

also be included. See L-S-, 22 I. & N. Dec. at 655–56;

Carballe, 19 I. & N. Dec. at 360; Frentescu, 18 I. & N. Dec.

at 247.

Second, the statute incorporates by reference numerous

specific examples of the sort of convictions likely to result in

a particularly serious crime determination. Title 8 U.S.C.

§ 1231(b)(3)(B)(iv) states that “an alien who has been

convicted of an aggravated felony (or felonies) for which the

alien has been sentenced to an aggregate term of

imprisonment of at least 5 years shall be considered to have

committed a particularly serious crime.”

Section 1101(a)(43), in turn, specifies which generic crimes

qualify as aggravated felonies. The aggravated felony

definitions serve both to delineate the group of per se

particularly serious crimes and to suggest the types of crimes

most likely to be covered by the statute even when the

aggregate sentence is less than five years.

Third, the BIA has specified at least one category of

offenses—drug trafficking crimes—which will almost always

be particularly serious crimes for withholding purposes. See

Matter of Y-L-, 23 I. & N. Dec. at 276.

24 ALPHONSUS V . HOLDER

In sum, § 1231(b)(3)(B) does cover an ascertainable core

set of convictions, and the BIA’s interpretive glosses have

added some specificity as well. See United States v.

Sandsness, 988 F.2d 970, 971 (9th Cir. 1993) (rejecting a

facial vagueness challenge to a statute proscribing the sale of

drug paraphernalia in interstate commerce, because the

statute “lists 15 different examples of items which would be

considered ‘drug paraphernalia’” and “sets out eight factors

to be considered in characterizing items as ‘drug

paraphernalia’”). There is, to be sure, “doubt as to the

adequacy of [the particularly serious crime] standard in less

obvious cases,” as we demonstrate later. Jordan, 341 U.S. at

232. But this circumstance “does not render that standard

unconstitutional for vagueness” on its face. Id. Rather,

Alphonsus’s facial challenge fails because there is an

ascertainable group of circumstances as to which the statute,

as interpreted, provides “an imprecise but comprehensible

normative standard . . . rather [than] . . . no standard . . . at

all.” Vill. of Hoffman Estates, 455 U.S. at 495 n.7.12

C. The BIA’s Particularly Serious Crime Determination

“[T]he BIA’s determination that an alien was convicted

of a particularly serious crime is a discretionary decision, and

12

Alphonsus does not raise an as-applied vagueness challenge to

§ 1231(b)(3)(B)(ii) in his opening brief, nor does his reply brief object to

the government’s characterization of his arguments as a facial attack.

Alphonsus has therefore waived any as-applied challenge. See Rizk v.

Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). Because our conclusion

that the statute is not vague in at least some contexts suffices to resolve

Alphonsus’s facial challenge, we do not address whether the statute would

be unconstitutionally vague as applied to the circumstances in this case.

See United States v. Inzunza, 638 F.3d 1006, 1019 (9th Cir. 2011), cert.

denied, 132 S. Ct. 997 (2012).

ALPHONSUS V . HOLDER 25

we review such decisions under an abuse-of-discretion

standard.” Arbid v. Holder, No. 09-73211, 2012 WL

5458045, at *4 (9th Cir. Nov. 9, 2012) (per curiam). Under

this standard of review, “we may disturb the BIA’s ruling if

the BIA acted arbitrarily, irrationally, or contrary to law.” Id.

at *5 (internal quotation marks omitted).

It is a well-settled principle of administrative law that an

agency abuses its discretion if it “clearly departs from its own

standards.” NLRB v. Safeway Stores, Inc., 622 F.2d 425, 428

(9th Cir. 1980). “We generally expect agencies to deal

consistently with the parties or persons coming before

them. . . . Thus, while an agency may announce new

principles in an adjudicatory proceeding, it may not depart,

sub silentio, from its usual rules of decision to reach a

different, unexplained result in a single case.” California

Trout v. FERC, 572 F.3d 1003, 1022–23 (9th Cir. 2009)

(internal quotation marks omitted). See also NLRB v. Nat’l

Med. Hosp. of Compton, 907 F.2d 905, 908 (9th Cir. 1990);

Shaw’s Supermarkets, Inc. v. NLRB, 884 F.2d 34, 36 (1st Cir.

1989) (Breyer, J.) (“The law that governs an agency’s

significant departure from its own prior precedent is clear.

The agency cannot do so without explicitly recognizing that

it is doing so and explaining why.”).

More specifically, reviewing immigration determinations

for an abuse of discretion, we have held that the agency acts

arbitrarily if it treats factually identical cases differently

without providing a reasoned explanation, Israel v. INS,

785 F.2d 738, 741 (9th Cir. 1986); if it includes an improper

factor in its analysis, Yepes-Prado v. INS, 10 F.3d 1363, 1366

(9th Cir. 1993); or if it fails to “indicate how it weighed the

factors involved and how it arrived at its conclusion,” id. at

1370 (internal quotation marks omitted).

26 ALPHONSUS V . HOLDER

As described above, the IJ rested his particularly serious

crime determination on two grounds. First, he stated—after

“looking at the elements of [Alphonsus’s] crime,” as well as

“the facts and circumstances that gave rise to the

crime”—that “the very nature of this type of crime, resisting

an executive officer in the performance of his lawful duties,

is just exactly the type of crime that makes [Alphonsus] a

danger to the community. This is a particularly serious

crime.” He then went on to add: “[B]ased upon that analysis,

and taking into consideration the Government’s analysis that

this is the type of a crime that not only is a crime against the

officer, but it is a crime against the orderly pursuit of justice

in the United States by its commission, that it also qualifies

as a particularly serious crime” (emphases added). The BIA

referenced both rationales in its order affirming the IJ’s

decision, which stated:

As noted by the Immigration Judge,

[Alphonsus’s] crime was not only a crime

against the officer, but ‘a crime against the

orderly pursuit of justice in the United States.’

[Alphonsus’s] actions created a meaningful

risk of harm to others and to the officer by the

manner in which he tried to escape arrest.

Accordingly, we agree that [Alphonsus] is

ineligible for withholding of removal under

241(b)(3) of the Act and for withholding of

removal under the CAT.”

Reviewed for abuse of discretion, the Board’s rationale

suffers from two defects. First, we cannot discern, from the

BIA’s ambiguous statement, the operative rationale of its

particularly serious crime determination. The BIA may have

determined that Alphonsus’s conviction for resisting arrest

ALPHONSUS V . HOLDER 27

constitutes a particularly serious crime because the offense

interfered with the orderly pursuit of justice, or because the

offense created a meaningful risk of harm, or because the

offense both interfered with the orderly pursuit of justice and

created a meaningful risk of harm.13 “Without knowing the

basis of the [BIA’s] decision, we cannot conduct a

meaningful review. We therefore remand to the BIA for a

clear explanation.” Delgado, 648 F.3d at 1108.

Second, as we next explain, the BIA has not adequately

elucidated either rationale for applying the particularly

serious crime bar in this case. On remand, then, the BIA

should not only explain which rationale it is adopting, but

also why that rationale is consistent with the conclusion that

Alphonsus’s conviction constitutes a particularly serious

crime. “In making a discretionary immigration decision, the

agency must indicate how it weighed the factors involved and

how it arrived at its conclusion.” Yepes-Prado, 10 F.3d at

1370 (internal quotation marks and citations omitted).

i. The “Crime Against the Orderly Pursuit of

Justice” Rationale

Of the two posited rationales for designating Alphonsus’s

resisting arrest conviction as a particularly serious crime, we

are less able to understand the meaning of the BIA’s assertion

that the offense is particularly serious because it constitutes

13

The government argues that the Board’s reference to the phrase “was,

at most, a rhetorical flourish” that did not announce a new legal standard.

W e are not so sure. The IJ relied heavily on the government’s proposed

“crime against the orderly pursuit of justice” standard, and the BIA

endorsed that standard when it approvingly quoted the IJ in its opinion.

At any rate, the BIA is free, on remand, to disclaim the “crime against the

orderly pursuit of justice” rationale.

28 ALPHONSUS V . HOLDER

a “crime against the orderly pursuit of justice.” Neither the

IJ nor the BIA explained the significance of that locution in

their respective opinions. The IJ did, however, specifically

note that he expected the reviewing court to reference the

government’s argument to the IJ on this point in explanation

of the IJ’s ruling, and so we will.

The relevant transcript section shows that the government

lawyer made several lengthy speeches during the hearing

regarding the vital role played by California Penal Code § 69

in the community’s “system of ordered liberty.” He argued

that the type of conduct at issue is particularly serious, “[n]ot

because there was any particular danger of the person o[r] the

officer being hurt, if it’s really true that all [Alphonsus] was

doing was fleeing,” but “because it completely defeats the

ability of our society to have any kind of a fair hearing on the

issue of guilt or innocence, and even presents the kind of

public exoneration that those who are innocent are entitled

to.” The government lawyer accordingly suggested that “the

real victim in, actually, a very direct sense in California Penal

Code Section 69 is not so much the individual person of the

victim, so much as it is our entire system of justice. . . .

Because if those who are charged with enforcing the law can

be effectively prevented from carrying out their duties by just

anyone who wishes, then, really, our entire system of justice

quickly breaks down, and all of our society really is

threatened with anarchy.” Shortly after the government

attorney finished speaking, the IJ found Alphonsus’s crime

particularly serious, partly because of “the reasons stated by

the Government attorney.”

As described above, § III.A supra, the BIA’s consistent

practice with respect to its discretionary particularly serious

crime determinations has been to focus on whether the

ALPHONSUS V . HOLDER 29

offense at issue indicates that the alien poses a significant,

nonabstract danger to the community. See Delgado, 648 F.3d

at 1106–07 (citing Frentescu, 18 I. & N. Dec. at 247);

Carballe, 19 I. & N. Dec. at 360). Explaining this standard,

Frentescu observed that “[c]rimes against persons are more

likely to be categorized as ‘particularly serious crimes,’” and

further added that “there may be instances where crimes (or

a crime) against property will be considered as such crimes.”

18 I. & N. Dec. at 247. In subsequent cases, the Board has

often used the “crime against persons” rationale to justify

particularly serious crime determinations. See, e.g., N-A-M-,

24 I. & N. Dec. at 343; L-S-, 22 I. & N. Dec. at 649; In re

L-S-J-, 21 I. & N. Dec. 973, 974–75 (B.I.A. 1997). To our

knowledge, the BIA has never before advanced a “crime

against the orderly pursuit of justice” rationale in support of

its particularly serious crime determinations, even in cases

where such a rationale would seem to apply. In Denis v.

Attorney General of the United States, for example, the BIA

and the Third Circuit held that an alien’s conviction for

tampering with evidence (by hacking up his victim’s body)

constituted a particularly serious crime, not because the

offense interfered with the administration of justice, but

because of the “gruesome brutality” of the alien’s actions and

the use of physical force against his victim’s corpse. See

633 F.3d 201, 216 (3d Cir. 2011).

That an agency changes course in its statutory

interpretation does not, by itself, invalidate its new

conclusion. After all, “the whole point of Chevron

[deference] is to leave the discretion provided by the

ambiguities of a statute with the implementing agency.”

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996); see

generally Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984). But to do so, an agency must

30 ALPHONSUS V . HOLDER

acknowledge that it is indeed changing course, and it must

provide a reasoned explanation for its change of course.

“Unexplained [agency] inconsistency is . . . a reason for

holding an interpretation to be an arbitrary and capricious

change from agency practice under the Administrative

Procedure Act.” Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs., 545 U.S. 967, 981 (2005); see also 5 U.S.C.

§ 706(2)(A). “[A]n agency changing its course by rescinding

a rule is obligated to supply a reasoned analysis for the

change beyond that which may be required when an agency

does not act in the first instance.” Motor Vehicle Mfrs. Ass’n

of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 42 (1983). The reasoned explanation requirement is a

narrow one, “reserved for rare instances,” but it applies with

full force where, as here, “an agency provides no explanation

at all for a change in policy.” Morales-Izquierdo v. Gonzales,

486 F.3d 484, 493 (9th Cir. 2007) (en banc).14

Moreover, an agency changing course must do so in a

format capable of modifying an earlier interpretation. Here,

an unpublished, non-precedential opinion in this case could

not modify earlier, published precedential opinions even if

adequate reasons were given for the departure. See

Hernandez v. Ashcroft, 345 F.3d 824, 846–47 (9th Cir. 2003).

Thus, if the BIA is to adopt its new “crime against the orderly

pursuit of justice” rationale, it must do so in a precedential

opinion that modifies its earlier limitation of “particularly

serious crimes” to crimes against persons and, in some cases,

against property. See Frentescu, 18 I. & N. Dec. at 247; see

14

Although the IJ’s decision referenced the argumentative justification

posited by the government lawyer in removal proceedings, the BIA’s

decision did not similarly state that it was adopting the government

lawyer’s rationale.

ALPHONSUS V . HOLDER 31

also N-A-M-, 24 I. & N. Dec. at 343; L-S-, 22 I. & N. Dec. at

649; L-S-J-, 21 I. & N. Dec. at 974–75.

One other caveat is in order with regard to the “crime

against the orderly pursuit of justice” category of particularly

serious crimes. The government, during oral argument before

us, strongly suggested that dangerousness is not an essential

touchstone for particularly serious crime determinations.

This assertion contradicts the statutory text, which allows the

Attorney General to deny withholding of removal if the

Attorney General decides that “the alien, having been

convicted by a final judgment of a particularly serious crime

is a danger to the community of the United States.” 8 U.S.C.

§ 1231(b)(3)(B)(ii). As the Board recognized in Carballe,

this phrase demonstrates that “the essential key” to

determining whether a given crime is particularly serious “is

whether the nature of the crime is one which indicates that the

alien poses a danger to the community.” 19 I. & N. Dec. at

360. If the BIA chooses to adopt the “crime against the

orderly pursuit of justice” rationale, it should explain not only

why it is altering its prior precedents, but also how its

interpretation squares with the statutory reference to

“danger.”

Within the parameters just outlined, the BIA is free to

modify the Frentescu/Carballe standard. We do not presume

to proscribe any of the agency’s policy choices. However, if

the agency chooses to rely on the “crime against the orderly

pursuit of justice” rationale, it must explain the basis for that

decision. Additionally, to the extent that the Board chooses

to rely on the “crime against justice” rationale, it should also

explain why resisting one’s own arrest, as Alphonsus did,

qualifies as such a crime. Cf. Matter of Joseph, 22 I. & N.

Dec. 799, 808 (B.I.A. 1999) (en banc) (suggesting that

32 ALPHONSUS V . HOLDER

resisting one’s own arrest would not likely constitute generic

“obstruction of justice” under 8 U.S.C. § 1101(a)(43)(S)).

ii. The “Meaningful Risk of Harm” Rationale

The BIA’s particularly serious crime determination may

also have rested on the observation that Alphonsus’s “actions

created a meaningful risk of harm to others and to the officer

by the manner in which he tried to escape arrest.”

Specifically, the BIA noted that Alphonsus “ran through

traffic to evade arrest, assumed a ‘fighting stance’ with the

police officer, and shoved [the officer] when he tried to place

[Alphonsus] under arrest.” Moreover, the BIA pointed out,

Alphonsus “was tasered by the police officer after not

responding to verbal commands.”15

As far as we are aware, the BIA has never previously

addressed the circumstances under which resisting arrest

15

Alphonsus does not specifically challenge the IJ’s reliance on the

police report. The Board held, in Matter of N-A-M-, that under

§ 1231(b)(3)(B)(ii), “all reliable information may be considered in making

a particularly serious crime determination, including the conviction

records and sentencing information, as well as other information outside

the confines of a record of conviction.” 24 I. & N. Dec. at 342. W e have

deferred to that interpretation. See Anaya-Ortiz, 594 F.3d at 677. We

have not, however, determined either: (1) whether an IJ can credit a police

report, with no live evidence, over the applicant’s denial in testimony of

the facts stated in the report; or (2) the degree to which the IJ and BIA can

rely on the specific facts alleged when those facts go entirely beyond those

needed for conviction of the offense (e.g., if the police report stated that

the defendant murdered the victim, but the defendant was convicted only

for kidnaping), rather than elucidating the manner in which the offense

was committed. Nor do we decide those questions here.

ALPHONSUS V . HOLDER 33

might constitute a particularly serious crime.16 A review of

the Board’s precedential decisions, however, demonstrates

that the “particularly serious crime” designation has generally

been reserved for more grave offenses than the conduct at

issue here. See Delgado, 648 F.3d at 1110 (Reinhardt, J.,

concurring).

In Frentescu, for example, the BIA held that burglary

with intent to commit theft did not constitute a particularly

serious crime, because “there [was] no indication that the

dwelling was occupied or that the applicant was armed; nor

[was] there any indication of an aggravating circumstance.”

18 I. & N. Dec. at 247. Similarly, in L-S-, the Board held that

the applicant’s alien smuggling conviction did not constitute

a particularly serious crime, even though the offense posed

some risk to the alien hidden in the floor of L-S-’s van,

because “there [was] no indication the [applicant] intended to

harm the smuggled alien” and the applicant “did not, in fact,

cause her harm.” 22 I. & N. Dec. at 655–56. Here, similarly,

there has been no finding of intent to harm either the arresting

officer or members of the public, and it appears that in fact no

one was hurt.

In Matter of B-, by contrast, the BIA determined that the

applicant’s aggravated battery conviction for injuring

someone with a shot from a firearm constituted a particularly

16

W e have previously held that resisting arrest may, under some

circumstances, constitute an aggravated felony crime of violence. See

Estrada-Rodriguez v. Mukasey, 512 F.3d 517, 521 (9th Cir. 2007)

(holding that resisting arrest, in violation of Ariz. Rev. Stat. § 13-2508, is

categorically an aggravated felony crime of violence). In this case,

however, the IJ explicitly refused to find that Alphonsus’s conviction for

resisting arrest constitutes an aggravated felony crime of violence, and the

BIA did not do so either.

34 ALPHONSUS V . HOLDER

serious crime. 20 I. & N. Dec. at 429–30. Matter of Garcia-

Garrocho concluded that burglary of a dwelling, during

which the offender is armed with a deadly weapon or causes

injury to another, constitutes a particularly serious crime. 19

I. & N. Dec. 423, 425–26 (B.I.A. 1986). And in N-A-M-, the

Board held that felony menacing involving the use or

threatened use of a deadly weapon is a particularly serious

crime. 24 I. & N. Dec. at 343. Other particularly serious

crime offenses include drug trafficking, Matter of Y-L-, 23 I.

& N. Dec. at 274; possession of child pornography, Matter of

R-A-M-, 25 I. & N. Dec. 657, 662 (B.I.A. 2012); and robbery,

Matter of S-V-, 22 I. & N. Dec. 1306, 1308–09 (B.I.A. 2000)

(en banc), disagreed with on other grounds by Zheng v.

Ashcroft, 332 F.3d 1186, 1194–96 (9th Cir. 2003).

“The BIA acts arbitrarily when it disregards its own

precedents and policies without giving a reasoned explanation

for doing so.” Israel, 785 F.2d at 740. On remand, the BIA

may decide that Alphonsus’s offense more closely resembles

the crimes in B-, Garcia-Garrocho, N-A-M-, etc. than the

offenses in Frentescu and L-S-, but “the Board ought to

explain why he falls on the wrong side of the line—if indeed

he does.” Berhane v. Holder, 606 F.3d 819, 825 (6th Cir.

2010) (discussing the serious non-political crime bar). “The

BIA may not proceed at whim, shedding its grace unevenly

from case to case.” Israel, 785 F.2d at 741 (internal quotation

marks omitted).

Moreover, any such explanation must be consistent with

the statutory text, which indicates that the line must be drawn

so that “particularly serious crimes” are not a major

proportion of crimes generally. That there are two modifiers

to “crimes” so signifies: The crime must be not just any

crime, and not just any serious crime—already a subset of all

ALPHONSUS V . HOLDER 35

crimes—but one that is “particularly serious.” See 8 U.S.C.

§ 1231(b)(3)(B)(ii) (emphasis added).17 “Particularly” in this

context means “in a special or unusual degree,” or “to an

extent greater than in other cases or towards others.” See

Webster’s Third New International Dictionary 1647 (1976).

We also know that a “particularly serious crime” must be

more serious than a serious non-political crime, itself already

a limited category. See Frentescu, 18 I. & N. Dec. at 247; see

also Berhane, 606 F.3d at 824–25. And, as we have noted,

the Board has in fact generally adhered to the notion that only

relatively “grave” crimes are considered “particularly serious

crimes”—but not always, see Delgado, 648 F.3d at 1110–11

(Reinhardt, J., concurring).

As we have twice recently indicated, the BIA has

discretion to exercise its broad authority to determine, on a

case-by-case basis, what constitutes a particularly serious

crime. See Pechenkov, 2012 WL 5995430, at *4; Arbid, 2012

WL 5458045 at *2–3. But we retain authority under those

cases, and Delgado, to review for the legal adequacy of the

decisionmaking process. Here, absent an adequate

explanation as to how the Board’s “meaningful risk of harm”

rationale can be reconciled with the Board’s precedents and

with the statutory language, we cannot say that the Board’s

decision was the result of legally adequate decisionmaking.

17

Our statute may well depart from the probable intent of the

Convention’s drafters, see n.6, supra, as § 1231(b)(3)(B)(iv)’s per se

provision applies the particularly serious crime designation to a wide

range of crimes, unified only by the requirement that the applicant must

have received an aggregate sentence of at least five years’ imprisonment.

Thus, the presumed intent of the Convention’s drafters cannot govern our

analysis of the “particularly serious crime” bar, except insofar as it

confirms that the bar does not extend to most crimes.

36 ALPHONSUS V . HOLDER

IV. Convention Against Torture

To establish eligibility under CAT, an alien must

demonstrate that he will “more likely than not” be tortured if

removed to his home country. 8 C.F.R. § 1208.17; see

Abufayad v. Holder, 632 F.3d 623, 632 (9th Cir. 2011). The

federal regulations define torture as the intentional infliction

of severe pain or suffering, whether physical or mental, when

such pain or suffering is inflicted by or at the instigation of or

with the consent or acquiescence of a public official or other

person acting in an official capacity. 8 C.F.R.

§ 1208.18(a)(1). “Government acquiescence does not require

actual knowledge or willful acceptance of torture; awareness

and willful blindness will suffice.” Aguilar-Ramos v. Holder,

594 F.3d 701, 705–06 (9th Cir. 2010).

Alphonsus argues that the record in this case compels the

conclusion that he will be tortured if returned to Bangladesh.

He cites: (1) a report by the U.S. Commission on

International Religious Freedom, which maintains

Bangladesh on its watch list “due to the nature and extent of

violations of religious freedom engaged in or tolerated by the

government[]”; and (2) a 2009 United Nations High

Commissioner for Refugees report stating that “[t]he

Government sometimes failed to investigate the crimes and

prosecute the perpetrators” of various attacks on religious

minorities.

Despite the troubling country reports, the record evidence

does not compel the conclusion that Alphonsus himself will

be, more likely than not, tortured upon his return. The two

reports on which he relies make no attempt to determine the

likelihood that any one member of any particular religious

minority will be tortured—as opposed to being persecuted or

ALPHONSUS V . HOLDER 37

discriminated against. Cf. Cole, 659 F.3d at 767. Other

information in the country reports, cited by both the IJ and the

Board, supports the conclusion that torture of Christians by,

or with the acquiescence of, the government is not more

likely than not. The U.S. State Department Country Report,

for example, states that religious violence has decreased in

Bangladesh, that freedom of religion is protected, and that the

Bangladeshi government is taking steps “to promote

understanding and peaceful coexistence among different

communities.” The BIA may use its expertise in considering

contradictory and ambiguous country reports to “decide

which portions of the report[s] are relevant to the applicant.”

Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 999 (9th Cir.

2003); see also Go v. Holder, 640 F.3d 1047, 1054 (9th Cir.

2011).

We accordingly conclude that substantial evidence

supports the Board’s determination that Alphonsus has not

established that he is more likely than not to face torture if

removed to Bangladesh.

V. Conclusion

For the foregoing reasons, we GRANT the petition in

part, DENY it in part, and REMAND for further

consideration and explanation of the “particularly serious

crime” issue. Each party shall bear its own costs.

38 ALPHONSUS V . HOLDER

GRABER, Circuit Judge, concurring in part and dissenting in

part:

I dissent from Part III.C.ii of the panel’s decision, but

concur as to the other parts and concur in the result. I write

separately for two reasons.

1. Under Ninth Circuit precedent, we have jurisdiction to

review the BIA’s denial of Petitioner’s claim for relief under

CAT, even though 8 U.S.C. § 1252(a)(2)(C) strips federal

courts of jurisdiction to review an order of removal against an

alien who is removable by reason of having committed an

aggravated felony, except as to legal or constitutional

questions. Our court has read an additional exception into the

statute’s otherwise unequivocal text, under which we review

such orders if the BIA did not rest its decision on the fact of

the aggravated felony but instead denied relief from removal

on the merits. That interpretation of § 1252(a)(2)(C) ignores

the statute’s text and conflicts with the views of at least four

of our sister circuits.

I have discussed my objection to the judicially fashioned

“on the merits” exception at greater length in my concurring

opinion in Pechenkov v. Holder, No. 08-73287, 2012 WL

5995430, at *5–7 (9th Cir. Dec. 3, 2012). In Pechenkov, this

exception did not apply, so its validity was irrelevant to the

result. Here, though, we assert jurisdiction over Petitioner’s

CAT claim because the BIA denied that claim on the merits.

This case therefore squarely presents us with an opportunity

to correct our flawed interpretation of 8 U.S.C.

§ 1252(a)(2)(C), should we take the case en banc.

2. I dissent from Part III.C.ii because, in my view, the

BIA’s “meaningful risk of harm” rationale applies legal

ALPHONSUS V . HOLDER 39

principles that are neither new nor erroneous, and because it

is premised on factual considerations that, under 8 U.S.C.

§ 1252(a)(2)(C), we lack jurisdiction to review.

The majority relies on Israel v. INS, 785 F.2d 738, 740

(9th Cir. 1986), in which we reversed the denial of a

petitioner’s motion to reopen deportation proceedings

because “[t]he BIA acts arbitrarily when it disregards its own

precedents and policies without giving a reasonable

explanation for doing so.” The majority charges that the BIA

disregarded decisions in which various crimes, committed

under various circumstances, were determined to be either

“particularly serious” or not. See, e.g., In re N-A-M-, 24

I. & N. Dec. 336, 343 (B.I.A. 2007) (holding that felony

menacing involving the use or threatened use of a deadly

weapon was “particularly serious”); Matter of B-, 20 I. & N.

Dec. 427, 429–30 (B.I.A. 1991) (holding that aggravated

battery in which the petitioner had injured someone with a

shot from a firearm was “particularly serious”); Matter of

Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1981) (holding

that unarmed burglary of an apparently unoccupied building

without any aggravating circumstances was not “particularly

serious”). After reviewing those cases (and others), the

majority concludes that the BIA committed legal error by

failing to explain why Petitioner’s conduct more closely

resembles the crimes that were found in the past to be

“particularly serious” than those that were not.

For two reasons, the majority fails to persuade me. First,

Israel reviewed a different type of decision: whether to allow

the reopening of a proceeding. 785 F.2d at 740. That

question does not implicate the jurisdictional restriction

imposed by 8 U.S.C. § 1252(a)(2)(C), which applies here.

Because that statute prohibits us from reviewing Petitioner’s

40 ALPHONSUS V . HOLDER

removal order except as to legal questions, we cannot

overturn the BIA’s particularly serious crime determination

merely because we find the Board’s decision to be “arbitrary”

as a matter of factual application or as an exercise of

judgment.

Second, even if Israel provides the proper framework for

our review, the BIA did not depart from its precedents. To

determine that Petitioner’s crime was “particularly serious,”

the BIA applied the Frentescu/Carballe standard. According

to that well-established legal rule, an individual’s criminal

conduct is “particularly serious” if “the alien, having been

convicted of that crime, can be said to represent a danger to

the community.” Matter of Q-T-M-T-, 21 I. & N. Dec. 639,

654 (B.I.A. 1996) (en banc) (citing Matter of Carballe, 19 I.

& N. Dec. 357, 360–61 (B.I.A. 1986); Frentescu, 18 I. & N.

Dec. 244). Although “there are some crimes that are

inherently ‘particularly serious’ while others clearly are not,”

for other crimes the BIA must make a case-specific

determination “by considering the nature of the conviction,

the circumstances and underlying facts of the conviction, the

sentence imposed, and whether the type and circumstances of

the crime indicate the alien will be a danger to the

community.” Carballe, 19 I. & N. Dec. at 360; see also

N-A-M-, 24 I. & N. Dec. at 342 (holding that the “particularly

serious crime” analysis involves consideration of “all reliable

information . . . , including the conviction records and

sentencing information, as well as other information outside

the confines of a record of conviction”).

In this case, the BIA identified the foregoing legal

standard correctly and proceeded to apply it by considering

the particular facts surrounding Petitioner’s crime. If the BIA

purported to establish a general rule that made the crime of

ALPHONSUS V . HOLDER 41

resisting arrest “particularly serious” per se, we might

demand that it explain why that crime categorically is more

serious than other crimes that the Board has considered not to

be “particularly serious.” But it did not. After adequate

consideration of relevant facts, the BIA held only that

Petitioner’s criminal conduct, under all the circumstances,

was such that he could be said to present a danger to the

community. Those facts included that Petitioner ran through

traffic to evade arrest, assumed a “fighting stance” in relation

to a police officer, shoved the officer, and required the officer

to use a taser by refusing repeatedly to respond to oral

commands.

I acknowledge that an agency “may not depart, sub

silentio, from its usual rules of decision to reach a different,

unexplained result in a single case.” California Trout v.

FERC, 572 F.3d 1003, 1023 (9th Cir. 2009) (internal

quotation marks omitted). Here, though, the agency did

explain the result it reached, and it did so through a reasoned

and reasonable application of its well-established rules for

determining whether a crime is particularly serious. The fact

that no previously published decision of the BIA applied

those principles to the same crime or to the exact set of

circumstances at issue here does not render it a “significant

departure from [the agency’s] own prior precedent.” Shaw’s

Supermarkets, Inc. v. NLRB, 884 F.2d 34, 36 (1st Cir. 1989).

Rather, the BIA’s application of its precedent to the facts of

this case was consistent with its applications of the very same

analytical rules in Matter of N-A-M- and Matter of B-. In

each case, the BIA rested its decision on its finding that the

petitioner’s conduct—which, in this case, included theft,

running into traffic while fleeing from police officers, and a

physical assault on a police officer—presented a danger to the

42 ALPHONSUS V . HOLDER

community because it created a meaningful risk of harm to

others.

Whatever else they may require, Israel and California

Trout do not mean that an agency commits legal error if it

fails to distinguish the entire gamut of factual situations in

which it has previously applied the legal standard at issue. In

holding to the contrary, the majority finds legal error in what

is in fact a judgment call that reflects the Board’s evaluation

of the specific facts of this case. I therefore cannot join Part

III.C.ii.