NIJC - 2d Cir finds non-AggFels can be PSCs

2d Cir finds non-AggFels can be PSCs

Thursday, 10 July 2008

Nethagani v. Mukasey (2d Cir. 7/8/08)

JACOBS Straub Jones (dct)

The 2nd cir held that it had jurisdiction to review the quesiton of whether a particular crime is a particularly serious crime, notwithstanding 1252(a)(2)(B)(ii):

we hold that, when a statute authorizes the Attorney General to make a determination, but lacks additional language specifically rendering that determination to be within his discretion (e.g., “in the discretion of the Attorney General,” “to the satisfaction of the Attorney General,” etc.), the decision is not one that is “specified . . . to be in the discretion of the Attorney General” for purposes of § 1252(a)(2)(B)(ii).

Accord Alaka v.Att’y Gen., 456 F.3d 88, 98, 101-02 (3d Cir. 2006); contra Ali v. Achim, 468 F.3d 462, 468-69 (7th Cir. 2006). However, it upheld the Board's application of the Frentescu factors.

Then, the 2d cir rejected the argument that only aggravated felonies can be "particularly serious crimes" for withholding and asylum. It found the statute ambiguous, finding that the text could either help define PSCs, or could simply clarify the authoriy of the Board - as such, it deferred under Chevron to the Board's decision in In re N-A-M, 24 I. & N. Dec. 336, 337-41 (B.I.A. 2007). Contra Alaka v.Att’y Gen., 456 F.3d 88, 104-05 (3d Cir. 2006); accord Ali v. Achim, 468 F.3d 462 (7th Cir. 2006).

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