Delgado v. Mukasey (9th Cir., 10/8/08, No. 03-74442)

CANBY, Siler, Berzon (D)

  Petitioner is an El Salavadoran who has been in the U.S. for 20+ years.  Subsequently convicted three times for DUI, he was placed in removal in July 2001.  Petitioner conceded removability, and requested asylum, withholding of removal, CAT withholding and deferral, NACARA cancellation, and suspension of deportation.  The IJ denied CAT deferral on the merits and determined that the 3 convicitions were "particularly serious" crimes, although not agg felonies, and petitioner was thus precluded from asylum, withholding of removal, and CAT withholding.  The IJ also denied suspension and NACARA cancellation, although those two decisions were not appealed.

  The 9th Cir. held:

1.  The "particularly serious" crime bars to asylum and withholding are under separate provisions of the INA, but (a) the withholding of removal section, 1231(b)(3)(B), permits a case by case adjudication that a crime is particularly serious even if not an agg felony; and, (b) the particularly serious crime section for asylum purposes, 1158(b)(2)(A)(ii) and (B)(ii), allows ad hoc decisions and does not require that the crime be found by regulation to be particularly serious.

2.  The court has no jurisdiction to review the merits of the BIA's determination that DUI convictions constitute particularly serious crimes, citing 1252(a)(2)(B)(ii).

3.  Substantial evidence supported the denial of CAT withholding and deferral.

  The dissent, in a thirty page opinion, argued "the only viable construction of the 'particularly serious crime' provision of § 1231(b)(3)(B), the withholding version, is that only aggravated felonies can be 'particularly serious crime[s].'  And the only viable interpretation of the asylum 'particularly serious crime' provision, § 1158(b)(2)(B), is that the Attorney General can make non-aggravated felonies 'particularly serious crimes' only through regulation, not on a case-by-case basis." 

  As to the jurisdiction issue the dissent states this decision "is directly in conflict with Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007). Morales held that asylum issues generally are reviewable, even when committed to the Attorney General’s discretion, because of an express statutory provision pertaining only to asylum decisions."

Read opinion here

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