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The Ninth Circuit held in Avendano-Hernandez v. Lynch that the Board of Immigration Appeals acted within its proper discretion to hold that the petitioner's felony conviction for driving under the influence (DUI) was a particularly serious crime that disqualified her from receiving withholding of removal.

Ms. Avendano-Hernandez is a transgender woman who requested withholding of removal to Mexico because of repeated acts of rape and sexual assault she experienced there by police, the military, and her own family.  The immigration judge found her testimony credible, but denied her withholding of removal based on her conviction under California Vehicle Code section 23153(b) for driving with a blood alcohol content of 0.08% or greater and causing bodily injury to another person.  She had crashed into another car and the other driver experienced neck and back pain, as well as minor pain to the arm and knee.  She received probation and a jail term of 364 days for this conviction.  She later received a 2 year sentence to imprisonment for a violation of her probation after she was deported and returned illegally without reporting to her probation officer.

The immigration judge and Board found that the conviction was a particularly serious crime that disqualified Ms. Avendano Hernandez from receiving withholding of removal to Mexico based on her experiences of rape and sexual assault there.  The Ninth Circuit's jurisdiction to review this discretionary decision is limited to determining whether the agency considered the facts and circumstances of the crime under the correct legal standard.  The Ninth Circuit found that the immigration judge did improperly consider the probation violation in assessing the seriousness of the underlying crime, but that the Board corrected the immigration judge's error on its de novo review.  The Ninth Circuit concluded that the Board applied the proper legal standard to the facts, so it upheld the decision.

The Ninth's decision then went on to find that Ms. Avendano Hernandez is entitled to deferral of removal under the Convention Against Torture, a less durable form of protection from removal.


The Board of Immigration Appeals held here that a respondent's mental health at the time of committing a crime is not a factor in determining whether a conviction is for a particularly serious crime that bars withholding of removal.

In this case, the respondent was convicted of California Penal Code section 245(a)(1) (2004 version), assault with a deadly weapon, and received a two-year sentence to prison.  He has a history of chronic paranoid schizophrenia, which resulted in a finding that he was mentally incompetent during the removal proceedings.  The fact of the conviction, however, indicates he was not found not guilty by reason of insanity during the criminal proceedings.

The Board held that the respondent's mental health circumstances at the time of an offense may not be considered in determining whether the crime is a particularly serious crime that bars withholding of removal.   It reached this conclusion despite acknowledging the well-established rule that it "evaluate[s] the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts."  The Board's decision makes clear that the "circumstances and underlying facts" concern only those that indicate whether the respondent is a "danger to the community."  In other words, a crime by a mentally ill person can indicate dangerousness to the community just the same as a crime by a person who is not mentally ill.


In a matter of first impression in this circuit, the Ninth Circuit found that the BIA could consider a sentence enhancement in determining whether a non-aggravated felony conviction was nonetheless a particularly serious crime that would bar withholding of removal.  Konou had argued it could not because Ninth Circuit precedent holds a sentencing enhancement cannot be considered when determining if a conviction is an aggravated felony.  The court pointed out that a conviction does not need to meet the aggravated felony definition in order to be deemed particularly serious.  The particularly serious crime determination is a discretionary case-by-case determination.


The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.

The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.

The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.

The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.

Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.


This case clarifies the law regarding the particularly serious crime (PSC) bar to asylum and withholding of removal for cases arising in the jurisdiction of the Third Circuit Court of Appeals.

In Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006), the Third Circuit held that an offense must be an aggravated felony to be a PSC for purposes of withholding of removal. However, the Board reached the opposite conclusion the following year in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). Four federal circuit courts, including the Ninth, have deferred to N-A-M- after finding ambiguity in the statutory language of the PSC-bar to withholding.

In this case, the Board considered the question whether it would continue to follow Alaka in cases arising within the Third Circuit. The answer is no: the Board concluded that because the Third Circuit did not hold in Alaka that the statutory language in section 241(b)(3)(B) is ambiguous, the circuit court is required to defer to the Board’s interpretation of the statute in N-A-M-. Thus, in all circuits, an individual need not have been convicted of an aggravated felony to be subject to the PSC-bars for asylum and withholding of removal.


The Ninth Circuit held that the decision as to whether a conviction is a "particularly serious crime" to bar asylum and withholding of removal is an inherently discretionary decision. Thus, the court will review a finding by the Board of Immigration Appeals that an offense is a particularly serious crime for abuse of discretion. The court found no abuse of discretion here where the immigration judge and Board reviewed the Statement of Facts from the guilty plea, took testimony from the applicant, and decided that a fraud conspiracy that resulted in a loss to the victims of nearly $2 million amounted to a particularly serious crime.


The Board of Immigration Appeals held that a conviction under California Penal Code § 311.11(a) for possession of child pornography was an aggravated felony under 8 U.S.C. § 1101(a)(43)(I). It also held that the circumstances surrounding the offense made it a particularly serious crime that barred withholding of removal.

The Board noted that the aggravated felony definition at section 1101(a)(43)(I) covers offenses described in 18 U.S.C. § 2252(a)(4) (punishing knowing possession of visual depictions of minors engaged in sexually explicit conduct) and found that California Penal Code § 311.11(a) was an offense described by the federal statute. The Board did not address, however, the fact that the California law is seemingly broader than the federal offense. The California statute explicitly penalizes simulated sexual conduct, but the federal statute does not. Unless case law has interpreted these statutes to mean essentially the same thing, there is not a categorical match between them.

Absent a categorical match, the Board should have determined whether the modified categorical approach could be used to determine if the record of conviction established a conviction that matched the federal definition. The Board did not do that analysis since it appeared to view the offense as a categorical aggravated felony. This is a potential basis for challenge.

The Board also reviewed the nature of the crime and individual circumstances of the offense and found that it was a particularly serious crime that barred withholding of removal. It agreed that possession of child pornography was a less serious offense than producing or distributing it, but nonetheless found it to be a very serious offense. The Board found that persons who downloaded the material created a demand for its production. It also noted the continuing harm to the child victims that occurs every time someone downloads it. The Board also considered the circumstances of the respondent's offense and placed particular emphasis on the fact that the respondent made multiple downloads of the material.

Read the decision at

In a decision with rather shoddy reasoning, in this blogger's opinion, the panel held that the noncitizen was barred from withholding of removal under INA 241(b)(3) for conviction of a particularly serious crime.

The offered justification for concluding that the respondent's residential burglary conviction(s) (one, or all three collectively, the opinion does not say) is a particularly serious crime is that California residential burglary is a crime of violence under 18 USC 16(b). As a crime of violence with a sentence to a year or more, a crime would be an aggravated felony, but that does not automatically equate to a particularly serious crime, as the panel acknowledges. Rather, the panel seems to simply equate a crime of violence with a particularly serious crime. It did not cite any authority for this conclusion and this blogger is not aware of any. It did not even discuss this premise in any detail, suggesting that it was an oversight.

The panel held that "residential burglary under California Penal Code § 459 constitutes a crime of violence because it is a felony 'that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.' 18 U.S.C. § 16(b)." This is contrary to the reasoning of a recent en banc Ninth Circuit.

The Ninth Circuit in Aguila Montes de Oca recognized that California's burglary statute penalizes entry into a residence with intent to commit theft or any felony even if the entry is licensed or privileged or even at the owner's personal invitation. See People v. Frye, 959 P.2d 183 (Cal. 1998), overruled on other grounds by People v. Doolin, 198 P.3d 11 (Cal. 2009). For example, a servant who enters his master's house with the intent to appropriate the family silver while at work commits a residential burglary under California law. Likewise the firefighter who enters a burning building with the intent to appropriate valuables while fighting a fire. Thus, the Ninth Circuit held that California burglary is not categorically a burglary under the generic federal definition, which requires an unlawful or unprivileged entry.

Whether a California burglary meets the generic federal definition is admittedly a different question than whether the crime involves a substantial risk that (violent) physical force will be used in the course of committing the crime. And the Lopez-Cardona panel distinguished Aguila on this basis. However, the servant and firefighter examples of licensed or privileged entries are precisely the types of situations where a California burglary would not by its nature involve a substantial risk of the use of physical force being used in the course of the crime. Another example, courtesy of the ILRC, shows it even more clearly: a person commits a California burglary when he enters a home at the owner's invitation with the intent to fraudulently sell worthless life insurance. That type of theft or felony does not carry an inherent risk of violent physical force being used in the course of the crime. So, it is not categorically a crime of violence (although that still might be established under the modified categorical approach, particularly post-Aguila).

Finally, the decision notably failed to even cite the Ninth Circuit's recent tour-de-force decision by another panel on the particularly serious crime bar to withholding--Delgado v. Holder. Just another indication that this decision was not carefully vetted.

Read the decision at

The en banc Ninth Circuit found, as the government conceded, that it had jurisdiction to review the determination of whether a crime is particularly serious for asylum and withholding of removal purposes. The Supreme Court's decision in Kucana v. Holder, 130 S. Ct. 827, 837 (2010), compelled this result because Congress did not explicitly set out the Attorney General's discretionary authority in the text of the statute. The Ninth Circuit overruled its contrary precedent in Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir. 2001). It further held that the BIA had the authority to determine whether crimes were particularly serious on a case by case basis.

Delgado had three DUI convictions that the immigration judge held were particularly serious crimes, both individually and collectively. The BIA affirmed with no independent analysis, but did not expressly adopt the IJ's decision or review it for abuse of discretion. Thus, the Ninth could not determine the reasoning behind the BIA's decision and remanded for explication. The court noted the BIA could have found that one or more of the convictions could have been a particularly serious crime individually, they could collectively be a particularly serious crime, or the last of the three could be a particularly serious crime in light of the priors.

Judge Reinhardt concurred, but argued that the BIA would abuse its discretion if it found a run-of-the-mill DUI to constitute a particularly serious crime that barred asylum and withholding of removal. Under current law, a DUI does not even constitute a criminal ground of inadmissibility or deportability (although it does raise the issue of inadmissibility for having a mental disorder and an associated behavior that poses a risk to the public safety), so barring protection for a person who faces a risk of persecution or death on that basis doesn't make sense. Judge Reinhardt noted that even if a DUI did not constitute a categorical bar, the agency still would have the authority to deny asylum based on the DUI in the exercise of discretion--which would better allow the adjudicator to weigh the seriousness of the crime against the reasons for granting relief.

Judge Reinhardt's concurrence also maintained that the BIA would err if it analyzed the convictions collectively or if it found the last to be particularly serious based on the priors. The statutory text indicates that a crime's seriousness should be assessed separately.

Read the opinion at