Roberto Blandino-Medina v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO JAVIER BLANDINO - No. 11-72081

MEDINA ,

Petitioner, Agency No.

A077-223-173

v.

ERIC H. HOLDER, JR., Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 17, 2012—San Francisco, California

Filed April 10, 2013

Before: Carlos T. Bea and Andrew D. Hurwitz, Circuit

Judges, and William K. Sessions, District Judge.*

Opinion by Judge Bea

*

The Honorable W illiam K. Sessions, III, District Judge for the U.S.

District Court for the District of Vermont, sitting by designation.

2 BLANDINO -MEDINA V . HOLDER

SUMMARY**

Immigration

The panel denied a petition for review of the Board of

Immigration Appeals’ denial of protection under the

Convention Against Torture to a citizen of Nicaragua, and

vacated the Board’s holding that petitioner’s conviction for

lewd and lascivious acts with a child under the age of 14, in

violation of California Penal Code § 288(a), is a per se

particularly serious crime precluding withholding of removal

relief.

As an initial matter, the panel held that the petition

presented a live case or controversy, notwithstanding

petitioner’s removal to Nicaragua, because petitioner’s

removal had the collateral consequence of rendering him

inadmissible under 8 U.S.C. § 1182(a)(9)(A)(ii).

Distinguishing Kaur v. Holder, 561 F.3d 957 (9th Cir. 2009),

the panel rejected the government’s argument that the petition

was moot because there was an independent basis for

petitioner’s inability the return to the United States – the fact

that his conviction was a crime involving moral turpitude –

because petitioner could seek a discretionary waiver under 8

U.S.C. § 1182(h).

The panel held that 8 U.S.C. § 1231(b)(3)(B)(iv)

unambiguously creates only one category of per se

particularly serious crimes for purposes of withholding of

removal, aggravated felonies for which the alien was

**

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

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

BLANDINO -MEDINA V . HOLDER 3

sentenced to at least five years’ imprisonment, and precludes

the agency from creating additional categories of facially

particular serious crimes. The panel held that the Board

therefore erred in concluding that petitioner’s conviction for

lewd and lascivious acts with a child under the age of 14, in

violation of California Penal Code § 288(a), was per se

particularly serious. The panel remanded for the Board to

engage in a case-specific analysis in accordance with Matter

of Frentenscu, 18 I. & N. Dec. 244 (BIA 1982) to determine

whether petitioner’s conviction was for a particularly serious

crime.

The panel held that substantial evidence supported the

Board’s determination that petitioner failed to establish a

clear probability that he would be tortured if returned to

Nicaragua.

COUNSEL

Madeline Feldon (argued), Amy VyHanh Nguyen (argued),

and Evangeline G. Abriel, Santa Clara University School of

Law, Santa Clara, California, for Petitioner.

Zoe J. Heller (argued), Office of Immigration Litigation,

Washington, D.C., for Respondent.

OPINION

BEA, Circuit Judge:

Roberto Xavier Blandino-Medina, a Nicaraguan citizen,

seeks review of two decisions by the Board of Immigration

4 BLANDINO -MEDINA V . HOLDER

Appeals (“BIA”): (1) a decision reversing an Immigration

Judge’s (“IJ’s”) grant of withholding of removal pursuant to

the Convention Against Torture (“CAT”), and (2) a decision

affirming the IJ’s finding that Blandino’s conviction for lewd

and lascivious acts with a child under the age of 14, in

violation of California Penal Code § 288(a), is a particularly

serious crime, rendering him statutorily ineligible for

withholding of removal.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). We

affirm the BIA’s decision concerning withholding of removal

pursuant to the CAT, but vacate its decision holding that

Blandino’s conviction under Section 288(a) is a particularly

serious crime per se, and remand to the BIA to consider the

circumstances of the offense.

I. Facts and Procedural Background

Blandino is a Nicaraguan citizen, born in 1982. Several

members of Blandino’s family were affiliated with the

Somoza regime, and after the Sandinistas took power, his

family was persecuted. Blandino’s father fled to the United

States in 1986 and was later granted political asylum. In

1987, Blandino came to California to live with his father.

When Blandino was ten years old, his father sent him

back to Nicaragua. Shortly after returning, Blandino

encountered problems with the Sandinista National Liberation

Front (“FSLN”). While Blandino was in school, the FSLN

forced students to do manual labor. Blandino was forced to

build barricades and beaten for not complying with the

FSLN’s instructions. When he was fifteen years old,

Blandino was detained by the police for three days and

questioned about his parents.

BLANDINO -MEDINA V . HOLDER 5

On December 19, 1998, Blandino entered the United

States without permission and was apprehended by Border

Patrol agents. The Immigration and Nationalization Service

(“INS”) sought to remove him for entering the country

illegally. Blandino applied for Temporary Protected Status

(“TPS”), and in 1999 the INS granted that application and

closed removal proceedings.

Since 1999, Blandino has been convicted of three crimes.

The third conviction is central to this appeal: a 2008 guilty

plea to the felony of lewd and lascivious conduct with a child

under the age of fourteen in violation of Section 288(a),1 for

which Blandino was sentenced to one year in county jail, five

years of felony probation, and registration as a sex offender.

In 2009, the Department of Homeland Security (“DHS”)

re-instituted removal proceedings. Blandino appeared before

an IJ, conceded the legal and factual bases for removal, but

sought cancellation of removal and adjustment of status

(along with a waiver of inadmissibility) pursuant to 8 U.S.C.

§ 1182(h), as a spouse or child of a person granted asylum.

Claiming political persecution, Blandino also applied for

asylum, withholding of removal under 8 U.S.C. § 1231(b)(3),

and relief under the CAT.

1

California Penal Code § 288(a) states: “Any person who willfully and

lewdly commits any lewd or lascivious act, including any of the acts

constituting other crimes provided for in Part 1, upon or with the body, or

any part or member thereof, of a child who is under the age of 14 years,

with the intent of arousing, appealing to, or gratifying the lust, passions,

or sexual desires of that person or the child, is guilty of a felony and shall

be punished by imprisonment in the state prison for three, six, or eight

years.”

6 BLANDINO -MEDINA V . HOLDER

The IJ denied Blandino’s applications for cancellation of

removal and for a waiver of inadmissibility in conjunction

with his application for adjustment of status. The IJ also

denied Blandino’s asylum application. However, the IJ

granted Blandino’s application for withholding of removal

under 8 U.S.C. § 1231(b)(3), and relief under the CAT.

The government appealed the IJ’s grant of withholding of

removal under 8 U.S.C. § 1231(b)(3) and the CAT to the

BIA; Blandino did not seek review of the IJ’s denial of

cancellation of removal, waiver of inadmissibility, or asylum.

The BIA remanded for the IJ to determine whether

Blandino’s conviction under Section 288(a) was a

“particularly serious crime” rendering him ineligible for

withholding of removal.2 The BIA instructed the IJ “to

examine the statutory elements of the alien’s crime; if an

offense qualifies as a particularly serious crime based solely

on its elements, then no further inquiry is required and the

application for withholding of removal must be pretermitted.”

On remand, the IJ noted that he had previously found

Blandino’s Section 288(a) conviction not particularly serious

because “respondent honestly believed based upon the

victim’s representation that she was 19 years old.” After

examining the elements of Section 288(a), but without re-

examining the facts and circumstances of Blandino’s

conviction, the IJ concluded that Blandino had been

convicted of a particularly serious crime.

2

8 U.S.C. § 1231(b)(3)(B)(ii) provides that an alien may not be removed

to a nation in which his life or freedom would be threatened on a protected

ground unless “the Attorney General decides . . . the alien, having been

convicted by a final judgment of a particularly serious crime is a danger

to the community of the United States.”

BLANDINO -MEDINA V . HOLDER 7

The BIA dismissed Blandino’s appeal, agreeing “with the

Immigration Judge’s determination that the respondent is

ineligible for withholding of removal under the [INA] as his

offense constitutes a ‘particularly serious crime’ per se.”

This petition for review followed.

II. Mootness

DHS removed Blandino to Nicaragua after this court

granted Blandino’s request to lift a temporary stay of

removal. The threshold issue is whether Blandino’s appeal

from the denial of withholding of removal presents a live case

or controversy.

“Mootness is a jurisdictional issue which [this court]

review[s] de novo.” In re Arnold & Baker Farms, 85 F.3d

1415, 1419 (9th Cir. 1996). An individual who has already

been removed can satisfy the case-or-controversy requirement

by raising a direct challenge to the removal order. See, e.g.,

Lopez v. Gonzalez, 549 U.S. 47 (2006). A petitioner can also

establish a live controversy by demonstrating concrete

collateral consequences from the removal. See, e.g., Zegarra-

Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003) (holding

that because petitioner’s inability to return to the United

States for twenty years as a result of his removal was “a

concrete disadvantage imposed as a matter of law, the fact of

his deportation did not render the pending habeas petition

moot”).

Blandino claims standing to challenge his removal

because it renders him inadmissible to the United States for

ten years pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii). The

government, relying on Kaur v. Holder, 561 F.3d 957 (9th

Cir. 2009), argues that there is an independent basis for

8 BLANDINO -MEDINA V . HOLDER

Blandino’s inability to reenter the United States, namely, the

agency’s independent determination that his conviction under

Section 288(a) is a crime involving moral turpitude.

In Kaur, the petitioner sought review of a BIA decision

denying him asylum and withholding of removal. Id. at 958.

The BIA had found that Cheema was a danger to the security

of the United States. Id. This court dismissed his petition as

moot because he had “already been deported and he

suffer[ed] no collateral consequences from the withholding

decision.” Id. at 959. He did not fall under the collateral

consequences exception to mootness because his

inadmissibility to the United States was “not a collateral

consequence of the BIA’s denial of withholding of

deportation; rather it [was] a collateral consequence of the

Board’s unchallenged determination under 8 U.S.C.

§ 1182(a)(3)(B)(i)(I) that Cheema is an alien who engaged in

terrorist activities.” Id.

However, there is a significant distinction between

Cheema’s situation and Blandino’s: although there is no

waiver of inadmissibility for aliens who, like Cheema, are

found to have engaged in terrorist activities, see 8 U.S.C.

§ 1182(a)(3)(B)(I), a discretionary waiver is available for

aliens who, like Blandino, have been convicted of crimes

involving moral turpitude, see 8 U.S.C. § 1182(h).

The government correctly notes that Blandino has already

applied for such a waiver, which has been denied. However,

that denial does not preclude him from again seeking the

same waiver in connection with a new visa petition. Rather,

“USCIS does not place a restriction on the number of times

[an alien] may file a Form I-601.” See U.S. Citizenship and

Immigration Services, Centralized Filing and Adjudication

BLANDINO -MEDINA V . HOLDER 9

for Form I-601, Application for Waiver of Grounds of

Inadmissibility. When evaluating a waiver of inadmissibility,

the adjudicator “is required to balance the equities and

adverse matters to determine whether discretion should be

favorably exercised.” Matter of Mendez-Morales, 21 I. & N.

Dec. 296, 301 (BIA 1996). Given the highly discretionary

nature of this determination, it is possible that a future

adjudicator will “balance the equities and adverse matters” in

a manner different than did the original IJ. This is sufficient

to give Blandino “a personal stake” in the litigation. Swaby

v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004).

III. The BIA’s Authority to Determine that Certain

Offenses Are “Particularly Serious Crimes”

Per Se

Whether the BIA applied the proper legal standard in

determining whether Blandino’s crime was “particularly

serious” raises a question of law. We have jurisdiction over

questions of law raised in petitions for review. 8 U.S.C.

§ 1252(a)(2)(D); see also Miguel-Miguel v. Gonzalez,

500 F.3d 941, 944 (9th Cir. 2007). Although we “cannot

reweigh evidence to determine if the crime was indeed

particularly serious, [we] can determine whether the BIA

applied the correct legal standard.” Afridi v. Gonzalez,

442 F.3d 1212, 1218 (9th Cir. 2006). This Court reviews

both the BIA’s decision and those portions of the IJ’s

decision incorporated by the BIA. See Kalubi v. Ashcroft,

364 F.3d 1134, 1137 n.3 (9th Cir. 2004).

A. Standard of Review and Chevron Deference

We ordinarily review questions of law de novo.

However, the Court must afford deference under Chevron

10 BLANDINO -MEDINA V . HOLDER

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984), to the BIA’s reasonable interpretations of ambiguous

statutes it is charged with administering. See INS v. Aguirre-

Aguirre, 526 U.S. 415, 424 (1999) (citing 8 U.S.C.

§ 1101(a)(3)).

The first step of the Chevron analysis considers whether

“the statute is silent or ambiguous with respect to the specific

issue.” Chevron, 467 U.S. at 843. “If the intent of Congress

is clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed

intent of Congress.” Id. at 842–43. Courts “only defer . . .

to agency interpretations of statutes that, applying the normal

‘tools of statutory construction,’ are ambiguous.” INS v. St.

Cyr, 533 U.S. 289, 320 n.45 (2001) (quoting Chevron,

467 U.S. at 843).

“[I]f the statute is silent or ambiguous with respect to the

specific issue,” the court moves to step two of the Chevron

inquiry, and considers “whether the agency’s answer is based

on a permissible construction of the statute.” Chevron,

467 U.S. at 843. Deference “is especially appropriate in the

immigration context where officials ‘exercise especially

sensitive political functions that implicate questions of

foreign relations.’” Aguirre-Aguirre, 526 U.S. at 425

(quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).

B. Statutory Framework

Applying the “traditional tools of statutory construction,”

we conclude that 8 U.S.C. § 1231(b)(3)(A) is not ambiguous.

We begin with the text and the history of the statute.

Section 1231(b)(3)(A)(ii) provides that an alien may not be

BLANDINO -MEDINA V . HOLDER 11

removed to a nation in which his life or freedom would be

threatened on a protected ground unless “the Attorney

General decides . . . the alien, having been convicted by a

final judgment of a particularly serious crime is a danger to

the community of the United States.” Before 1990, the

Immigration and Nationality Act did not define “particularly

serious crime.” See Miguel-Miguel, 500 F.3d at 945.

In Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982),

the BIA developed a multi-factor test for determining whether

a crime was particularly serious. Frentescu had been

convicted of burglary, sentenced to three months in jail, and

placed on probation for one year. Id. at 245. To determine

whether Frentescu had been convicted of a “particularly

serious crime,” the BIA described the required inquiry as

follows:

While there are crimes which, on their face,

are “particularly serious crimes,” or clearly

are not “particularly serious crimes,”3 the

record in most proceedings will have to be

analyzed on a case-by-case basis. In judging

the seriousness of a crime, we look to such

factors as 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.

3

The BIA did not identify in Matter of Frentescu any crimes that were,

on their face, “particularly serious crimes” or clearly not “particularly

serious crimes.”

12 BLANDINO -MEDINA V . HOLDER

Id. at 247.4 After applying these “Frentescu factors” the BIA

found that Frentescu’s crime was not particularly serious,

because it was a crime against property, he had not been

armed, and had received a relatively short sentence. Id.

In 1990, we held that Frentescu’s case-by-case analysis

was mandatory and that the BIA could not create categories

of per se particularly serious crimes. Beltran-Zavala v. INS,

912 F.2d 1027 (9th Cir. 1990). We explained:

If Congress wanted to erect per se

classifications of crimes precluding

immigration and nationality benefits, it knew

how to do so . . . In contrast, the language of

[the particularly serious crime provision], as

interpreted in Frentescu, commits the BIA to

an analysis of the characteristics and

circumstances of the alien’s conviction.

Id.

Since Beltran-Zavala, Congress has thrice amended the

provision barring withholding of removal for those convicted

of certain crimes. In 1990, Congress amended the INA to

provide that all aggravated felonies were categorically

4

The Frentescu factors have evolved slightly. The BIA no longer

engages “in a separate determination to address whether the alien is a

danger to the community.” Matter of N-A-M-, 24 I. & N. Dec. 336, 342

(BIA 2007); see also Kankamalage v. I.N.S., 335 F.3d 858, 861 n.2 (9th

Cir. 2003) (“Once the INS makes a finding that an offense constitutes a

particularly serious crime, a separate determination of danger to the

community is not required.”).

BLANDINO -MEDINA V . HOLDER 13

particularly serious crimes.5 Immigration Act of 1990, Pub.

L. No. 101-649, § 515 (Nov. 29, 1990). This amendment

effectively overruled Matter of Frentescu and Beltran-Zavala

in part, by precluding case-by-case analysis of an aggravated

felony. See Afridi, 442 F.3d at 1220 n.4.

In 1996, Congress eliminated the categorical rule,

replacing it with a rebuttable presumption that aggravated

felonies were particularly serious crimes. See Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, § 413(f) (Apr. 24, 1996). A few months later, however,

Congress again amended the statute. See Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, div. C, sec. 305, § 241 (Sept. 30, 1996)

(codified at 8 U.S.C. § 1231(b)(3)(B)) (“IIRIRA”). This

version, which applies to Blandino’s case, and remains in

effect today, provides in relevant part:

[A]n 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

5

At that time, only a limited number of 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”). The Immigration Act of 1990 added

money laundering and crimes of violence for which the term of

imprisonment is at least five years to the list of aggravated felonies. See

Pub. L. No. 101-649, § 501, 104 Stat. 4978, 5048.

14 BLANDINO -MEDINA V . HOLDER

of sentence imposed, an alien has been

convicted of a particularly serious crime.

8 U.S.C. § 1231(b)(3)(B)(iv).

Thus, the current version of the statute establishes a two-

tiered approach. Aggravated felonies6 for which an alien

receives a sentence of imprisonment of five years or more are

particularly serious crimes per se. This per se class, however,

“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.” Id. The

question at the first step of the Chevron inquiry is whether the

statute is ambiguous as to whether the Attorney General has

authority to create additional categories of per se particularly

serious crimes.

We find that Congress has clearly expressed its intent: the

overall structure of the INA compels the conclusion that

Section 1231(b)(3)(B)(iv) establishes but one category of

“per se” particularly serious crimes, and requires the agency

to conduct a case-by-case analysis of convictions falling

outside the category established by Congress. See Illinois

Pub. Telecommc’ns Ass’n v. Federal Commc’ns Comm.,

117 F.3d 555, 568, decision clarified on reh’g, 123 F.3d 693

(D.C. Cir. 1997) (“[U]nder step one of Chevron, we consider

not only the language of the particular statutory provision

under scrutiny, but also the structure and context of the

statutory scheme of which it is a part.”).

6

“As used in immigration law, ‘aggravated felony’ is a term of art

referring to the offenses enumerated in [8 U.S.C.] § 1101(a)(43).”

Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011) (en banc).

BLANDINO -MEDINA V . HOLDER 15

We start by applying the basic statutory construction

principle of expressio unius est exclusio alterius. Under that

principle, the express creation of one category of per se

particularly serious crimes should be understood as the

exclusion of other categorically particularly serious crimes.

See Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885

(9th Cir. 2005) (en banc) (“The doctrine of expressio unius

est exclusio alterius ‘as applied to statutory interpretation

creates a presumption that when a statute designates certain

persons, things, or manners of operation, all omissions should

be understood as exclusions.’”) (quoting Boudette v. Barnette,

923 F.2d 754, 756–57 (9th Cir. 1991)).

This reading is also the most consistent with the structure

of the INA as a whole. Congress put considerable effort into

delineating which crimes should be categorized as

particularly serious per se. The extensive and detailed

definition of the term “aggravated felony” in 8 U.S.C.

§ 1101(a)(43) demonstrates that Congress made specific

decisions about what sorts of crimes should qualify as facially

particularly serious. Cf. Alphonsus v. Holder, 705 F.3d 1031,

1043 (9th Cir. 2013) (“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.”).

Our conclusion that Section 1231(b)(3)(B)(iv) precludes

the agency’s creation of additional categories of particularly

serious crimes per se is supported by a comparison between

Section 1231, which governs withholding of removal, and

Section 1158, which governs asylum. Section

1158(b)(2)(A)(ii) prohibits the Attorney General from

granting asylum to an alien “if the Attorney General

16 BLANDINO -MEDINA V . HOLDER

determines that . . . the alien, having been convicted by a final

judgment of a particularly serious crime, constitutes a danger

to the community of the United States.” This language is

nearly identical to the provision at issue in this case, which

provides that an alien shall not be eligible for 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).

There are, however, key differences between the two

provisions. All aggravated felonies are categorically

particularly serious crimes for the purposes of asylum, but

only aggravated felonies for which the alien was sentenced to

at least five years’ imprisonment are categorically particularly

serious for the purposes of withholding of removal. Compare

8 U.S.C. § 1158(b)(2)(B)(i) (asylum) with 8 U.S.C.

§ 1231(b)(3)(B)(iv) (withholding of removal). More

importantly, the provisions differ in describing how the

Attorney General may designate other crimes as “particularly

serious.” The withholding of removal provision allows the

Attorney General to determine “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)(iv). In

contrast, the asylum statute allows the Attorney General to

“designate by regulation offenses that will be considered to

be a [particularly serious crime].” 8 U.S.C.

§ 1158(b)(2)(B)(ii).

We noted in Delgado v. Holder that “[t]here is little

question that [the asylum] provision permits the Attorney

General, by regulation, to make particular crimes

categorically particularly serious even though they are not

aggravated felonies.” 648 F.3d 1095, 1106 (9th Cir. 2011)

BLANDINO -MEDINA V . HOLDER 17

(en banc) (emphasis in original). However, the withholding

of removal statute is notably missing an analogue provision

permitting the Attorney General to designate crimes as

categorically particularly serious even if they are not

aggravated felonies for which the defendant has received a

sentence of at least five years.

The current language of both provisions was

simultaneously enacted by Congress in 1996, when it passed

the IIRIRA.7 See Pub. L. No. 104-208, div. C, sec. 305,

§ 241, and sec. 604, § 208 (Sept. 30, 1996). “When

‘Congress includes particular language in one section of a

statute but omits it in another section of the same Act . . . it is

generally presumed that Congress acts intentionally and

purposefully in the disparate inclusion or exclusion.’” Clay

v. United States, 537 U.S. 522, 528–29 (2003) (quoting

Russello v. United States, 464 U.S. 16, 23 (1983)). This

principle bolsters our conclusion that Congress’s failure to

include a provision explicitly granting the Attorney General

the authority to designate offenses as categorically

particularly serious crimes in the withholding of removal

context precludes the agency’s interpretation of the statute as

granting it that authority.

For these reasons, we conclude that Section

1231(b)(3)(B)(iv) unambiguously provides one category of

particularly serious crimes per se, precluding the agency’s

interpretation of the statute as allowing it to create additional

categories of facially particularly serious crimes.

7

Prior to the enactment of the IIRIRA, the asylum statute did not have

a “particularly serious crime” provision; rather, it simply stated that aliens

convicted of aggravated felonies were ineligible for asylum. See 8 U.S.C.

§ 1158 (Apr. 24, 1996).

18 BLANDINO -MEDINA V . HOLDER

C. BIA and Ninth Circuit Precedent

Although we base our conclusion on the text, history, and

structure of the statute, our holding also comports with Ninth

Circuit precedent and with the BIA’s practice of applying the

Frentescu case-by-case analysis in most cases involving

convictions of offenses other than aggravated felonies. In

two en banc decisions, the BIA held that the IIRIRA revived

the Frentescu case-by-case analysis for aggravated felony

convictions resulting in a sentence of less than 5 years. See

Matter of L-S-, 22 I. & N. Dec. 645, 649 (BIA 1999) (en

banc), Matter of S-S-, 22 I. & N. Dec. 458, 463–65 (BIA

1999) (en banc).8 In 2006, this court accordingly reversed a

decision by the BIA for failure to apply the Frentescu factors.

See Afridi, 442 F.3d at 1218. Afridi was convicted under

California Penal Code § 261.5(c) for unlawful intercourse

with a minor who was more than three years younger than the

perpetrator and was sentenced to three years’ probation. Id.

at 1214. The BIA found him statutorily ineligible for

withholding of removal because he had been convicted of a

particularly serious crime. Id. at 1217. This court granted the

petition for review in part noting, “The BIA considered two

of the Frentescu factors, the nature of the conviction and the

8

In Matter of S-S-, the BIA also noted that “Congress easily could have

designated categories of aggravated felonies that it considered to be

particularly serious crimes – either independently or in conjunction with

a specific sentence – but it did not do so.” 22 I. & N. Dec. at 464. After

holding that an individualized consideration of the facts and circumstances

of each conviction for aggravated felonies resulting in less than five years’

imprisonment was necessary, the BIA went on to note, “W e leave for

another day the question of whether, and under what conditions, it might

be appropriate, as a matter of discretion, for the Attorney General to

designate certain offenses as being particularly serious crimes per se.” Id.

at 465 n.7.

BLANDINO -MEDINA V . HOLDER 19

sentence imposed . . . [but] the BIA did not consider the

circumstances and underlying facts of the conviction.” Id. at

1219. We specifically noted that under the most recent

statutory amendments, “aggravated felonies resulting in

sentences fewer than five years are not per se particularly

serious and still require a case-by-case analysis, as laid out in

Frentescu.” Id. at 1220 n.4.

The government argues that we should defer to the BIA’s

construction of 8 U.S.C. § 1231 in Matter of N-A-M,

24 I. & N. Dec. 336 (BIA 2007), that it may designate an

offense as a particularly serious crime per se. But, because

we have already resolved this case at the first step of the

Chevron inquiry, we do not move to the second step of the

inquiry, in which we ask whether the agency’s interpretation

is a “permissible construction” of the statute. Chevron,

467 U.S. at 843. We note briefly, however, that Matter of N-

A-M does not necessarily support the government’s position.

The respondent in that case was convicted of felony

menacing and sentenced to four years’ deferred judgment. 24

I. & N. Dec. at 337. The BIA stated that where “a conviction

is not for an aggravated felony for which the alien has been

sentenced to an aggregate term of imprisonment of at least 5

years, we examine the nature of the conviction, the type of

sentence imposed, and the circumstances and underlying facts

of the conviction.” Id. at 342. The agency noted in dictum

that “[o]n some occasions, we have focused exclusively on

the elements of the offense,”9 but “we have generally

9

The BIA cited Matter of Garcia-Garrocho, 19 I. & N. Dec. 423,

425–26 (BIA 1986), in support of this proposition. The applicant in

Garcia-Garrocho had been convicted of first-degree burglary in violation

of New York Penal Law § 140.30. Id. at 425. The BIA stated that certain

crimes are “inherently” or “per se” particularly serious, and require “no

20 BLANDINO -MEDINA V . HOLDER

examined a variety of factors and found that the consideration

of the individual facts and circumstances is appropriate.” Id.

(internal quotations omitted). And, although stating that “that

the respondent’s offense is a particularly serious crime based

solely on its elements,” the BIA nonetheless examined the

individualized characteristics of the offense, including the

fact that the offense was a crime against a person, that the

respondent was required to register as a sex offender, and the

statement in support of the warrantless arrest describing the

nature of the respondent’s crime. Id. at 343.

We acknowledge that two other circuits have assumed,

without explicitly deciding, that the BIA can make the

“particularly serious crime” determination based solely on the

elements of the offense.10 However, no Ninth Circuit

decision so holds, and our considered analysis of the statute

at issue compels a contrary conclusion.

further inquiry into the nature and circumstances of the underlying

conviction,” id., and held that “the applicant’s conviction for burglary in

the first degree is within the category of crimes that are per se ‘particularly

serious.’” Id. at 426. However, Garcia-Garrocho predates the 1996

passage of IIRIRA, which established the two-tier approach to

determining which offenses are particularly serious crimes.

10

In Hamama v. INS, which was decided several months before the

“particularly serious crimes” provision at issue in this case was enacted by

the IIRIRA, the Sixth Circuit stated that the BIA “has the prerogative to

declare a crime particularly serious without examining each and every

Frentescu factor.” 78 F.3d 233, 240 (6th Cir. 1996). In Lapaix v. U.S.

Attorney General, the Eleventh Circuit stated that in making the

“particularly serious crime” determination, the IJ is “free to rely solely on

the elements of the offense,” but that “IJ’s generally consider additional

evidence” and apply the Frentescu factors. 605 F.3d 1138, 1143 (11th

Cir. 2010).

BLANDINO -MEDINA V . HOLDER 21

IV. Substantial Evidence Supported the BIA’s

Finding that Blandino Failed to Establish a

Clear Probability of Torture

We affirm the BIA’s denial of withholding of removal

under the CAT because Blandino has not established a clear

probability that he would be tortured if he returned to

Nicaragua. This court reviews “for substantial evidence the

factual findings underlying the . . . BIA’s determination that

[the applicant] was not eligible for deferral of removal under

the CAT.” Arbid v. Holder, 674 F.3d 1138, 1143 (9th Cir.

2012). Under this standard, “administrative findings of fact

are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B).

In its initial decision to grant Blandino relief under CAT,

the IJ specifically identified the past persecution of

Blandino’s family as grounds for granting relief. On appeal,

the BIA found that the record as a whole provided insufficient

evidence to establish that it was “more likely than not” that

Blandino would be tortured by the Nicaraguan government,

and noted that rather than presenting hard evidence of a

probability that he would be tortured, Blandino merely

presented a series of worst-case scenarios. Furthermore, he

had not presented evidence that similarly-situated individuals

are being tortured by Nicaraguan officials. Given the

deference this court must afford to the BIA’s findings of fact,

we affirm its decision to deny CAT relief to Blandino.

Conclusion

For the foregoing reasons, we GRANT Blandino’s

petition for review of the BIA’s determination that he

22 BLANDINO -MEDINA V . HOLDER

committed a particularly serious crime, and we REMAND

with instructions that the agency engage in a case-specific

analysis in accordance with Matter of Frentescu to determine

whether Blandino’s conviction under Section 288(a) is a

particularly serious crime, rendering him statutorily ineligible

for withholding of removal.

We DENY Blandino’s petition for review of the BIA’s

denial of his claim for relief under the Convention Against

Torture.

All pending motions in this case are DENIED.

GRANTED IN PART, DENIED IN PART, AND

REMANDED.