Valerio-Ramirez v. Sessions , 882 F.3d 289 ( 2018 )

United States Court of Appeals
For the First Circuit
Nos. 16-2272, 17-1402
LIZBETH PATRICIA VALERIO-RAMIREZ,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,
Respondent.
PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Mary P. Holper and Boston College Legal Services LAB
Immigration Clinic for petitioner.
John Willshire Carrera and Philip L. Torrey on brief for
Harvard Immigration and Refugee Clinical Program and Immigrant
Defense Project, amici curiae.
Margaret Kuehne Taylor, Senior Litigation Counsel, Office of
Immigration Litigation, with whom Chad A. Readler, Acting
Assistant Attorney General, Civil Division, and Derek C. Julius,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
February 15, 2018
LYNCH, Circuit Judge. This case involves what
constitutes a "particularly serious crime," the commission of
which renders a petitioner ineligible for withholding of
deportation or removal.
The case is before this court for the second time. An
Immigration Judge ("IJ") determined that Lizbeth Valerio-Ramirez's
("Valerio") conviction for aggravated identity theft was a
"particularly serious crime" that rendered her ineligible for
withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). The
Board of Immigration Appeals ("BIA") affirmed, but noted in passing
that Valerio was subject to deportation, under 8 U.S.C. § 1253(h),
not removal. On petition for review, this court vacated the BIA's
decision and remanded to the BIA to clarify the applicable legal
standard. Velerio-Ramirez v. Lynch, 808 F.3d 111 (1st Cir. 2015).
On remand, the BIA concluded that in deportation and removal
proceedings alike, its longstanding framework under Matter of
Frentescu supplies the standard for determining whether a non-
aggravated felony qualifies as a "particularly serious crime."
See 18 I. & N. Dec. 244, 247 (B.I.A. 1982). Reiterating its prior
reasoning, the BIA again found Valerio ineligible for withholding.
We find no error as to the applicable legal framework
adopted by the BIA. We also find that we have jurisdiction to
review the merits of the BIA's determination that Valerio's crime
is "particularly serious." Having carefully reviewed the record,
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we conclude that the BIA did not abuse its discretion.
Accordingly, we deny Valerio's petitions for review.
I. Background
In March 1991, Valerio, a native and citizen of Costa
Rica, entered the United States without inspection. She was
apprehended and placed in deportation proceedings, which were
administratively closed when she failed to appear at her initial
hearing.
Soon thereafter, Valerio's then-boyfriend Carlos Gomez
purchased her a birth certificate and social security card in the
name of Ms. Rosa Hernandez, a U.S. citizen who lived in Puerto
Rico. From 1995 to 2007, Valerio used Hernandez's identity to
secure employment, open numerous lines of credit, and purchase two
cars and a home. Valerio also used Hernandez's identity to defraud
the government of over $176,000 in housing assistance, food stamps,
and other welfare benefits. In 2006, the real Rosa Hernandez
learned while trying to purchase a car that someone had opened
lines of credit under her name. A year later, Valerio was
apprehended, and in 2010, after a jury trial in federal court, she
was found guilty of one count of aggravated identity theft under
18 U.S.C. § 1028A and three counts of mail fraud under 18 U.S.C.
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§ 1341. She was sentenced to two years' imprisonment, the
mandatory minimum. See 18 U.S.C. § 1028A(a)(1).
In 2011, after Valerio had served her sentence, the
Department of Homeland Security ("DHS") reopened her deportation
proceedings. By then, Congress had replaced "deportation,"
subject to § 1253, with "removal," subject to § 1231. DHS
mistakenly treated Valerio as being in removal proceedings, and
Valerio in turn applied for both asylum and withholding of
removal.1
In 2013, the IJ found Valerio removable and ineligible
for withholding of removal. The IJ determined that Valerio's
conviction for aggravated identity theft was a "particularly
serious crime" that barred her from obtaining withholding of
removal under § 1231(b)(3)(B)(ii). In making this determination,
the IJ applied the multi-factor test articulated in Matter of
Frentescu, which instructs courts to "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."
1 Valerio later decided not to pursue asylum.
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18 I. & N. Dec. at 247. We detail the IJ's application of the
Frentescu factors later.
In 2014, the BIA upheld the IJ's decision. In a
footnote, the BIA pointed out sua sponte that the IJ had
erroneously applied the removal statute (§ 1231) instead of the
deportation statute (§ 1253). However, it deemed the error
harmless because "[t]he particularly serious crime analysis is the
same under both provisions." The BIA opined that the IJ soundly
applied the Frentescu criteria in examining Valerio's crime, and
went on to address specific arguments that Valerio raised in her
appeal. As to Valerio's sentence, the BIA found that it reflected
Valerio's "personal situation" rather than an assessment by the
sentencing judge that her actions were of lesser seriousness; to
the contrary, it found, the circumstances in this case demonstrated
the unusually serious nature of Valerio's scheme. As to Valerio's
argument that her conviction was for a "nonviolent, victimless
crime," the BIA explained that although violence was indeed not at
issue here, there were real victims: the subject of the identity
theft, whose social security number and identity were stolen, and
the government, which was defrauded of at least $176,000.
Considering the harm Valerio caused to Hernandez and society as a
whole, and commenting that "[i]dentity theft is a serious problem
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in our society," the BIA "d[id] not accept [Valerio's] claim that
she poses no threat to society or to other individuals."
As said, in 2015, on Valerio's petition for review, a
panel of this court remanded the case to the BIA "in an abundance
of caution." Velerio-Ramirez, 808 F.3d at 112. The reasons for
the remand are stated in that opinion. In 2016, after remand, and
without taking additional briefing, the BIA succinctly reaffirmed
its prior decision, finding "no change [was] warranted in [its]
previous analysis." The BIA explained that § 1253(h)(3), added by
§ 413(f) of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, 1269 (1996),
"was enacted to offset the expanded definition of aggravated felony
[also enacted by the AEDPA] by giving the Attorney General
discretionary authority to override the categorical bar that
designated every aggravated felony as a particularly serious
crime"; § 1253(h)(3) "did not make any significant changes in [the
BIA's] interpretation of when a crime that is not an aggravated
felony constitutes a particularly serious crime." Post-AEDPA, the
BIA's jurisprudence evolved to address "which aggravated felonies
are to be considered per se particularly serious crimes and which
require a discretionary determination," but in non-aggravated
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felony situations, the BIA "continue[d] to exercise [its]
discretion, applying the Frentescu analysis."
Valerio moved for reconsideration before the BIA,
arguing that the Frentescu test as construed by the BIA does not
comply with the 1967 United Nations Protocol Relating to the Status
of Refugees, and, in any event, that the IJ and BIA did not properly
apply the test. The BIA denied the motion, finding no error of
law or fact in its decisions and emphasizing that both the IJ and
BIA "fully and properly considered" "[t]he nature and
circumstances of [Valerio's] crime."
Valerio petitioned this court to review both the BIA's
final order of deportation (No. 16-2272) and its subsequent denial
of her motion to reconsider (No. 17-1402). These two petitions
were consolidated in June 2017. We now review them together.
II. Discussion
A. Jurisdiction
As a threshold matter, the government argues that we
lack jurisdiction to review the merits of the BIA's determination
that Valerio committed a particularly serious crime. We disagree.
The government relies on 8 U.S.C. § 1252(a)(2)(B)(ii),
which states, "[N]o court shall have jurisdiction to review . . .
any . . . decision or action of the Attorney General . . . the
authority for which is specified under [§§ 1151-1381] to be in the
discretion of the Attorney General or the Secretary of Homeland
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Security." But in Kucana v. Holder, the Supreme Court held that
§ 1252(a)(2)(B) "barred court review of discretionary decisions
only when Congress itself set out the Attorney General's
discretionary authority in the statute." 558 U.S. 233, 247 (2010)
(emphasis added). Only "decisions specified by statute 'to be in
the discretion of the Attorney General' . . . [are] shielded from
court oversight." Id. at 248 (quoting 8 U.S.C.
§ 1252(a)(2)(B)(ii)).
While Kucana itself involved a question of whether a
regulation could trigger the jurisdiction-stripping provisions of
§ 1252(a)(2)(B), its limitations on the operation of those
provisions would appear to be applicable to statutes as well. One
key issue that Kucana did not squarely address, however, is the
precise language that Congress must use in order to endow the
Attorney General or the Secretary of Homeland Security with
discretion over a determination such that the federal courts are
deprived of jurisdiction to review that determination under
§ 1252(a)(2)(B).
With this decision, we side with the majority of other
circuits that have held that, under Kucana, a statutory provision
must expressly and specifically vest discretion in the Attorney
General (for example, by explicitly using the words "in the
discretion of the Attorney General") rather than simply leave to
the executive branch certain decisions and determinations that
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happen to be discretionary in nature. See Delgado v. Holder, 648
F.3d 1095, 1100 (9th Cir. 2011) (en banc); Berhane v. Holder, 606
F.3d 819, 821-22 (6th Cir. 2010) (noting that "[t]o 'specify' that
a decision belongs to the Attorney General's discretion . . . means
to 'name or state explicitly or in detail,'" and concluding that
merely empowering the Attorney General to make a "determination"
or to "decide" an issue does not suffice to trigger the
jurisdictional bar); see also Nethagani v. Mukasey, 532 F.3d 150,
154-55 (2d Cir. 2008) ("[W]hen a statute authorizes the Attorney
General to make a determination, but lacks additional language
specifically rendering that determination to be within his
discretion . . . , the decision is not one that is 'specified . . .
to be in the discretion of the Attorney General' for purposes of
[the jurisdictional bar].") (second alteration in original)
(quoting 8 U.S.C. § 1252(a)(2)(B)(ii)); Alaka v. Att'y Gen., 456
F.3d 88, 94-102 (3d Cir. 2006). But see Estrada-Martinez v. Lynch,
809 F.3d 886, 892 (7th Cir. 2015) (finding the "particularly
serious crime" determination unreviewable because it is inherently
discretionary).
As the Supreme Court has explained, "[w]hen a statute is
'reasonably susceptible to divergent interpretation, we adopt the
reading that accords with traditional understandings and basic
principles: that executive determinations generally are subject to
judicial review.'" Kucana, 558 U.S. at 251 (quoting Gutierrez de
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Martinez v. Lamagno, 515 U.S. 417, 434 (1995)). Thus, if a statute
contains no clear statement vesting discretion over a
determination with the Attorney General or the Secretary of
Homeland Security, § 1252(a)(2)(B)(ii) does not strip the federal
courts of jurisdiction to review the applicable determination.
This case involves two distinct statutory provisions.
First, § 1253(h)(2)(B) provides that withholding of deportation
"shall not apply . . . if the Attorney General 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." (emphasis added). Second, § 1253(h)(3)(B)
provides that "[withholding of deportation] shall apply to any
alien if the Attorney General determines, in the discretion of the
Attorney General, that . . . [withholding] is necessary to ensure
compliance with the 1967 United Nations Protocol Relating to the
Status of Refugees." (emphasis added). The government argues that
"to the extent" we find the BIA acted pursuant to § 1253(h)(3)(B),
we lack jurisdiction to revisit its analysis. That may be true,
but we do not reach that question.
As the government itself asserts in its brief,
§ 1253(h)(3)(B) "had no impact whatsoever on the particularly
serious crime determination made in Ms. Valerio's case." The BIA
did not determine under § 1253(h)(3)(B) that withholding of
deportation was necessary. Rather, it determined under
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§ 1253(h)(2)(B) that Valerio committed a particularly serious
crime.
We have jurisdiction to review the merits of the BIA's
decision because § 1253(h)(2)(B) does not expressly commit the
particularly serious crime determination to the Attorney General's
discretion. Other circuits agree. See Delgado, 648 F.3d at 1100;
Nethagani, 532 F.3d at 154-55; Alaka, 456 F.3d at 94-95. But see
Estrada-Martinez, 809 F.3d at 892.2
Of course, we also have jurisdiction to address
questions of law raised by Valerio's petition. See
§ 1252(a)(2)(D); Mele v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015).
These include what standard governs "particularly serious crime"
determinations for non-aggravated felons in deportation
proceedings under § 1253(h)(2)(B), and whether the addition of
§ 1253(h)(3)(B) under the AEDPA has impacted that standard.
B. Applicable Law
An alien is ineligible for withholding of deportation if
"the Attorney General 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."
2 We note that, in its request to the Supreme Court to
deny certiorari in Estrada-Martinez v. Lynch, the government
conceded that § 1252(a)(2)(B)(ii) did not present a jurisdictional
bar to federal court review of the "particularly serious crime"
determination.
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8 U.S.C. § 1253(h)(2)(B). In its remand order, this court asked
the BIA to "articulate the 'particularly serious crime'
determination for a non-aggravated felon," and to address whether
the enactment of § 413(f) of the AEDPA, codified at
§ 1253(h)(3)(B), altered that determination. Velerio-Ramirez,
808 F.3d at 118. On remand, the BIA explained that it determines
on a case-by-case basis whether a non-aggravated felony qualifies
as a "particularly serious crime" for the purposes of
§ 1253(h)(2)(B) by applying the multi-factor test set forth in
Matter of Frentescu, and that § 1253(h)(3) did not alter this well-
settled analytical framework.3 We uphold these conclusions based
on the statutory history and our decision in Choeum v. INS,
129 F.3d 29 (1st Cir. 1997).
Section 1253(h)(2)(B) mirrors the language of the United
Nations Protocol Relating to the Status of Refugees, 19 U.S.T.
6223 (the "Protocol"). Choeum, 129 F.3d at 41-42. As neither the
3 Valerio argues that she was denied due process because
the BIA issued its post-remand decision without first providing
her an opportunity to brief the question posed by the First Circuit
in its remand order. This procedural plaint lacks merit. Valerio
knew of the remand, but she did not request that the BIA provide
her an opportunity to submit a post-remand brief. Regardless, the
regulation governing briefing before the BIA makes no mention of
a duty to solicit briefing following a remand. See 8 C.F.R.
§ 1003.3(c). While the BIA's Practice Manual does contemplate
that the BIA will set a briefing schedule on remand "in appropriate
cases," § 4.19(d), the Manual is "strictly informational in
nature," Preface, and "does not carry the weight of law or
regulation," § 1.1(c).
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Protocol nor § 1253(h)(2)(B) defines "particularly serious crime,"
the BIA articulated in Matter of Frentescu a multi-factor test for
determining on a case-by-case basis which crimes qualify as
particularly serious. See 18 I. & N. Dec. 244, 247 (B.I.A. 1982).
The BIA later held that an alien who has committed a particularly
serious crime necessarily represents a danger to the community; no
separate dangerousness determination is required under
§ 1253(h)(2)(B). Matter of Carballe, 19 I. & N. Dec. 357, 360
(B.I.A. 1986). "All circuits that have addressed the issue . . .
have upheld this interpretation." Velerio-Ramirez, 808 F.3d at
115 n.7; see also Choeum, 129 F.3d at 41 ("This court, while
acknowledging that there is 'considerable logical force' to the
argument that the Particularly Serious Crime Exception requires a
separate determination of dangerousness to the community, has
upheld the agency's interpretation under Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)."
(citations omitted)).
In 1990, Congress amended § 1253(h)(2) to categorically
designate aggravated felonies as particularly serious crimes. See
Matter of C-, 20 I. & N. Dec. 529, 534-35 & n.3 (B.I.A. 1992).
The BIA accordingly dispensed with the Frentescu case-by-case
inquiry in aggravated felony cases, but retained it for non-
aggravated felonies. See id. at 535 n.3; see also Mosquera-Perez
v. INS, 3 F.3d 553, 559 (1st Cir. 1993) ("[I]t is reasonable to
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infer that Congress intended the 1990 amendment to equate
aggravated felonies with 'danger to the community,' obviating a
redundant Frentescu inquiry in cases involving aggravated
felonies."). Congress again amended § 1253(h)(2) when it enacted
the AEDPA. The AEDPA expanded the statutory definition of
aggravated felonies, see Pub. L. No. 104-132, § 440(e), 110 Stat.
1214, 1269 (1996), but also gave the Attorney General discretionary
authority, "[n]otwithstanding any other provision of law," to
withhold deportation whenever "necessary to ensure compliance with
the [Protocol]." Id. § 413(f).
In Choeum, this court thoroughly considered the
significance of § 1253(h)(3) for the "particularly serious crime"
test articulated in Frentescu and its progeny. The petitioner in
Choeum argued that it expressed congressional intent to reject the
BIA's interpretation that the Protocol and § 1253(h)(2)(B) do not
require a standalone inquiry into an alien's dangerousness.
129 F.3d at 41. This court rejected that argument. See id. at
43. Instead, it deferred to the BIA's interpretation: § 1253(h)(3)
was intended to offset the AEDPA's expansion of the definition of
aggravated felonies, by "preserv[ing] the Attorney General's
flexibility in assessing whether crimes now defined as aggravated
felonies were, in fact, 'particularly serious' within the meaning
of the Protocol." Choeum, 129 F.3d at 42-43. Choeum involved an
aggravated felony, but this court's conclusion that the AEDPA did
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not alter the BIA's test for case-specific "particularly serious
crime" determinations is dispositive for aggravated and non-
aggravated felonies alike.
In conclusion, the BIA's determination that Matter of
Frentescu supplies the standard for determining whether a non-
aggravated felony qualifies as a "particularly serious crime"
rendering an alien ineligible for withholding of deportation is
sound. The Frentescu framework includes an inquiry into "whether
the type and circumstances of the crime indicate the alien is a
danger to the community," 18 I. & N. Dec. at 247; no separate
dangerousness assessment is required, Carballe, 19 I. & N. Dec. at
360.4
C. Merits of the "Particularly Serious Crime" Finding
Where, as here, "the BIA adopted and affirmed the IJ's
ruling but also discussed some of the bases for the IJ's opinion,
we review both the IJ's and BIA's opinions." Weng v. Holder,
4 We acknowledge that Valerio and the amici have
marshalled evidence in support of their claim that the BIA has
been misinterpreting the Protocol and § 1253(h)(2)(B) ever since
it decided in Matter of Carballe that no separate assessment of
dangerousness is necessary. However, we cannot resuscitate a
debate that has been thoroughly litigated in almost all circuits,
unanimously resolved in the BIA's favor, and twice put to rest by
this court. See Mosquera-Perez, 3 F.3d at 559; Choeum, 129 F.3d
at 43; Velerio-Ramirez, 808 F.3d at 115 n.7; see also N-A-M v.
Holder, 587 F.3d 1052, 1057 (10th Cir. 2009)("Although
[petitioner] and the distinguished amici make strong arguments
that the BIA is not accurately interpreting the statute and its
treaty-based under-pinnings, we are constrained by our precedent
to hold otherwise.").
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593 F.3d 66, 71 (1st Cir. 2010) (internal quotation marks omitted)
(quoting Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir. 2008)). We
review for abuse of discretion the BIA's assessment and weighing
of the Frentescu factors, including its conclusion that the crime
of conviction was "particularly serious." See Arbid v. Holder,
700 F.3d 379, 385 (9th Cir. 2012); Gao v. Holder, 595 F.3d 549,
557 (4th Cir. 2010). Under this deferential standard, we will
uphold the determination "unless it was made 'without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Choeum, 129 F.3d at 44
(quoting Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991)); see
also Gao, 595 F.3d at 557 ("Appellate courts should not lightly
reverse for abuse of discretion in cases where, as here, lower
tribunals weigh various factors under a totality-of-the
circumstances test."). We also review legal questions de novo,
while affording deference to the BIA's interpretations of the
statutes and regulations it administers. See Costa v. Holder,
733 F.3d 13, 16 (1st Cir. 2013).
Valerio argues that the BIA erred as a matter of law
because, she says, it completely failed to examine several of the
Frentescu factors. Specifically, she alleges the BIA ignored her
sentence, disregarded the underlying facts and circumstances of
her conviction, and did not make any finding whatsoever as to
whether the type and circumstances of her crime indicate she is a
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danger to the community. She argues that it would be legal error
for the BIA, while purporting to perform the case-specific inquiry
prescribed by Matter of Frentescu, to fail to conduct an
individualized analysis of the alien's crime. See Afridi v.
Gonzales, 442 F.3d 1212, 1219, 1221 (9th Cir. 2006) (BIA acted
arbitrarily and capriciously because it "did not consider the
circumstances and underlying facts of the conviction" and thus
"failed to engage in a case-specific analysis"), overruled on other
grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n.15
(9th Cir. 2008) (en banc); Yousefi v. INS, 260 F.3d 318, 329-30
(4th Cir. 2001) (IJ's and BIA's "complete failure . . . to consider
key Frentescu factors" -- "specifically, the circumstances and
underlying facts of the conviction and whether the circumstances
of the crime indicate that [petitioner] would be a danger to the
community" -- was arbitrary and capricious). However, as detailed
below, the record in this case shows the IJ and BIA did conduct an
individualized analysis of Valerio's crime, properly guided by the
Frentescu factors. We also find that in performing its analysis,
the BIA did not abuse its discretion.
First, Valerio contends that the BIA failed to perform
an "individualized, case-specific analysis" of the circumstances
and facts of Valerio's identity theft conviction, instead making
"what amounted to a per se determination that aggravated identity
theft is particularly serious." The record flatly contradicts her
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claim. After finding generally that the elements of "aggravated
identity theft" bring it "within the ambit of particularly serious
crimes," the IJ evaluated Valerio's offense. The IJ took into
consideration Valerio's state of mind ("[Valerio] did not merely
make up a Social Security number at random . . . , rather she
knowingly stole the identity of a real person"); the multiple
illicit uses she made of Hernandez's identity beyond merely
securing employment ("to take out a loan, purchase a home, purchase
two cars, [and] open numerous lines of credit" as well as "to
defraud the government of . . . welfare benefits"); the duration
of the scheme ("more than a decade"); the sentence imposed ("twenty
four months," a "significant length of time" reflecting the crime's
"serious nature"); and the "substantial sum" she was ordered to
pay in restitution (over $176,000). The IJ emphasized the
"pervasive and comprehensive nature" of Valerio's fraudulent
stratagem, which involved maintaining separate bank accounts and
residences so as to withhold the income she earned and assets she
held under Hernandez's name when applying for government aid under
her real name; separately storing two sets of identity documents;
impersonating Hernandez to vouch for herself in welfare benefit
applications; and even submitting false "corrections" to the
residential history and student loan debt information in
Hernandez's credit reports. The IJ concluded from this fact-
intensive inquiry that Valerio's scheme was "complex in nature,
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lasting more than a decade, and extended well beyond securing the
bare necessities for her family's welfare." In light of this
analysis, the BIA soundly concluded that the "nature and
circumstances of [Valerio's] crime were fully and properly
considered."
Valerio retorts that the bulk of the BIA's
individualized analysis pertained to her three mail fraud
convictions, not her identity theft. She claims the particularly
serious crime analysis must focus on a single conviction, and
argues that the BIA erred as a matter of law when it considered
the circumstances of her mail fraud conviction. The argument
relies on a mistaken reading of a concurrence in Delgado, 648 F.3d
at 1112 (Reinhardt, J., concurring) ("The singular article 'a'
could not make any clearer the singular nature of 'a particularly
serious crime': the agency must identify one offense of conviction
that constitutes a particularly serious crime."). The premise of
Valerio's argument is wrong. Valerio was convicted of aggravated
identity theft, that is, identity theft performed "during and in
relation to" another felony. See 18 U.S.C. § 1028A(a)(1). As the
IJ emphasized, "to be charged with aggravated identity theft, the
perpetrator must have committed multiple criminal acts, all of
which involve fraud, deception, and the potential for serious
economic harm to the victim." When the crime of conviction has as
an element the commission of another crime, the "particularly
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serious crime" analysis should take into account the facts and
circumstances of that other crime. Here, because mail fraud was
a component of the aggravated identity theft offense under
consideration, it necessarily bears upon that offense's
seriousness. Thus, it was entirely proper for the BIA to consider
Valerio's mail-fraud offenses in assessing the seriousness of her
aggravated identity theft conviction.
Second, Valerio contends that the BIA failed to consider
relevant sentencing information -- specifically, the fact she
received no more than a mandatory minimum sentence. Again, the
record shows otherwise. As the BIA noted approvingly, the IJ
acknowledged the sentencing judge's basis for imposing a mandatory
minimum sentence -- Valerio's "age, the fact that she had three
minor children, and her mental and emotional state" -- but found
such "personal circumstances" unpersuasive because they did not
diminish the gravity of her crime. See Matter of N-A-M-, 24 I. &
N. Dec. at 343. Considering and rejecting Valerio's argument that
her sentence "reflects the low level of seriousness of her
offense," the IJ reasoned that "twenty four months is a significant
length of time and reflects the serious nature of aggravated
identity theft." There was no abuse of discretion in the IJ and
BIA's assessment of Valerio's sentence.
Third, Valerio contends that the BIA failed to consider
whether the type and circumstances of her crime indicate she is a
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danger to the community. Not so. The IJ conducted a detailed
inquiry into the circumstances of Valerio's crime, highlighting
how it "resulted in long-term harm, both to the victim, Rosa
Hernandez, as well as to society in general." The BIA endorsed
the IJ's findings and concluded Valerio was a threat to other
individuals and society in general:
We agree with the Immigration Judge that
[Valerio] inflicted harm on the subject of her
identity theft, as well as defrauding various
institutions of at least $176,000.
[Valerio's] claim that there is no harm here
is not persuasive. This is not potential harm
. . . . This is actual harm. For similar
reasons, we, like the Immigration Judge, do
not accept the respondent's claim that she
poses no threat to society or to other
individuals.
On remand, the BIA further emphasized how identity theft "can cause
severe detriment to its victims and is a danger to the community,"
and that in this particular case, Valerio "engaged in fraud on
many occasions for over 10 years." The seriousness of Valerio's
fraudulent scheme, evidenced by its complexity, duration, and the
significant harm caused, supported a finding that Valerio posed a
threat to the community.
Valerio contends that, even if we find the BIA engaged
in a case-specific analysis guided by the Frentescu factors, the
BIA nonetheless erred in reaching its ultimate conclusion that her
aggravated identity theft was a particularly serious crime. She
makes two arguments: first, that as a matter of law only violent
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offenses can qualify as particularly serious crimes, and second,
that in the rare instances crimes not involving violence or a
threat of bodily injury have been deemed particularly serious, the
offenses were "significantly more heinous" and caused more
"extensive financial harm" than Valerio did here.
Neither the Protocol nor § 1253(h)(2)(B) defines the
phrase "particularly serious crime." Nor do they set any bright-
line limitations on the types of offenses that may qualify as
particularly serious. The BIA has reasonably concluded that "while
an offense is more likely to be considered particularly serious if
it is against a person," the offense need not necessarily involve
violence in order to qualify. See Matter of R-A-M-, 25 I. & N.
Dec. 657, 662 (B.I.A. 2012). Indeed, on a number of occasions,
circuit courts have upheld BIA decisions finding non-violent
crimes "particularly serious." See, e.g., Arbid, 700 F.3d at 385
(mail fraud of nearly $2 million); Kaplun v. Att'y Gen., 602 F.3d
260, 267-68 (3d Cir. 2011) (securities fraud of nearly $900,000);
Hakim v. Holder, 628 F.3d 151, 152, 154 (5th Cir. 2010) (money
laundering of over $50,000). The IJ reasonably concluded that
because, as a general matter, aggravated identity theft can involve
"extensive schemes of deception" and have "devastating effects on
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the victims of identity theft and society as a whole," it falls
within the ambit of particularly serious crimes.
Nor can we say that the IJ's and BIA's "particularly
serious crime" determination on the facts of this case was made
"without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis."
Choeum, 129 F.3d at 44 (quoting Hazzard, 951 F.2d at 438). The IJ
highlighted the similarities between Valerio's crime and the mail
fraud deemed particularly serious in Arbid. In upholding the BIA's
conclusion in Arbid, the Ninth Circuit emphasized the petitioner's
"substantial" sixteen-month term of imprisonment, the imposition
of a $650,000 restitution order, the petitioner's apparent lack of
remorse, and the complex nature of the petitioner's scheme. Arbid,
700 F.3d at 385. Here, Valerio was subject to a two-year term of
imprisonment as well as a restitution order of over $170,000, and,
as the IJ described in some detail, Valerio engaged in an unusually
"complex," "comprehensive," and "long-term" scheme. Contrary to
Valerio's representations in her petition, it is clear that hers
was not a garden-variety identity theft. Many aggravating
circumstances undergird and cabin the BIA's ruling: the extended
duration of the identity theft and related fraud, its far-reaching
scope, its complexity, and the substantial amounts involved. We
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find the BIA did not abuse its discretion when it concluded that
Valerio committed a particularly serious crime.
III. Conclusion
For these reasons, Valerio's petitions for review are
denied.
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