Thursday, October 9, 2008
Ninth Circuit: DUI Convictions Rendered Alien Ineligible for Asylum
By SHERRI M. OKAMOTO, Staff Writer
The Attorney General may decide by adjudication that an alien’s individual crime was “particularly serious,” even though that crime was not classified as an aggravated felony, for purposes of asylum and withholding removal, a divided panel of the Ninth U.S. Circuit Court of Appeals held yesterday.
Dismissing Hernan Delgado’s petition for review of a decision ordering him removed to his native El Salvador based on three prior drunken driving convictions, Judge William C. Canby Jr. reasoned that two statutes rendering an alien convicted of a “serious crime” ineligible for relief if the Attorney General decides the alien is a danger to the community are not limited to aggravated felonies, and do not require the Attorney General to anticipate adjudication by first classifying a crime as “particularly serious” by regulation.
Both 8 U.S.C. § 1231(b)(3)(B) and 8 U.S.C. § 1158(b)(2)(A)(ii) provide that an alien is ineligible for relief “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.”
Canby, joined by Senior Judge Eugene E. Siler, Jr. of the Sixth U.S. Circuit Court of Appeals, sitting by designation, deferred to an interpretation by the Board of Immigration Appeals permitting the Attorney General to decide by case-by-case adjudication that particular crimes are “particularly serious” even though they are not aggravated felonies as a reasonable interpretation of the statutory scheme, and concluded that the appellate court was precluded from reviewing the Attorney General’s discretionary decision.
However, Judge Marsha S. Berzon criticized the majority as “seriously off-track,” and opined that “Congress wrote two different ‘particularly serious crime’ provisions because it meant two different things.”
She accused the majority to “turn[ing] a blind eye” to the differences between asylum and withholding of removal, and the “obvious” distinctions between the asylum and withholding “particularly serious” crimes exceptions.
“[T]he only viable construction of the ‘particularly serious crime’ provision of…the withholding version, is that only aggravated felonies can be ‘particularly serous crime[s]’” Berzon wrote. “And the only viable interpretation of the asylum ‘particularly serious crime’ provision…is that the Attorney General can make non-aggravated felonies ‘particularly serious crimes’ only through regulation.”
She also agreed with decision by the Second and Third Circuits that “a statutory provision giving the Attorney General authority to ‘determine’ something” is not an unreviewable discretionary decision, and further maintained that Delgado’s claim were substantively and procedural legal questions which the court had jurisdiction to review.
The case is Delgado v. Mukasey, 03-74442.
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