K.Y. v. U.S. Attorney General ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10271
____________________
K.Y.,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A061-394-881
____________________
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2 Opinion of the Court 21-10271
Before NEWSOM, MARCUS, Circuit Judges, and MIDDLEBROOKS, *
District Judge.
PER CURIAM:
This is an appeal of a final order of removal issued by the
Board of Immigration Appeals (“Board”) on December 16, 2020 as
to Petitioner K.Y., a native and citizen of Guyana. An Immigration
Judge determined that K.Y. was ineligible for asylum and withhold-
ing of removal because she was convicted of a particularly serious
crime and denied her application for protection under the Conven-
tion Against Torture (“CAT”), and the Board affirmed her decision
without opinion. K.Y. raises three challenges to these proceedings
in this appeal: (1) that the Immigration Judge did not give reasoned
consideration to all of the relevant evidence in determining that
K.Y. had not met her burden of showing that she would more likely
than not be tortured by, or with the acquiescence of, the Guyanese
government if returned to Guyana, or that her conclusion was not
supported by substantial evidence; (2) that the Immigration Judge
erred in not making a separate determination that K.Y. posed a dan-
ger to the community, in addition to finding that she had commit-
ted a particularly serious crime; and (3) that the Immigration Judge
erred in finding that K.Y. committed a particularly serious crime.
* Honorable Donald M. Middlebrooks, United States District Judge for the
Southern District of Florida, sitting by designation.
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After careful review, and with the benefit of oral argument, we
deny the petition for review in part and dismiss in part.
I
A
K.Y. is a transgender woman who has been living in the
United States as a lawful permanent resident since January 23, 2011.
Her parents are naturalized United States citizens. She is originally
from Guyana, a country on the northern coast of South America.
K.Y. lived in Guyana for over twenty-five years before coming to
the United States. During that time, she identified as a gay man,
but she kept her identity a secret because “homosexuality is con-
demned in Guyana” and is illegal. In 2015, after moving to the
United States, K.Y. began living openly as a transgender woman.
About four years after becoming a lawful permanent resi-
dent, in early 2015, K.Y. sought sexually explicit images, discussed
performing different sex acts, and arranged a meeting with an un-
dercover police officer pretending to be a 15-year-old boy. The po-
lice officer made repeated references to his underage status
throughout his communication with K.Y., but K.Y. was unde-
terred. She went to meet the “boy,” and she was arrested. She was
carrying lube and “poppers,” which are used to assist in anal sex, at
the time of her arrest.
As a result of this offense, K.Y. pleaded nolo contendere to
two sex crimes involving a minor: (1) traveling to meet a minor in
violation of Fla. Stat. § 847.0135(4)(a); and (2) soliciting a child for
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unlawful sexual conduct using computer services or devices in vi-
olation of Fla. Stat. § 847.0135(3)(a). She was sentenced to 42
months’ imprisonment, followed by 10 years’ probation, and was
required to register as a sex offender.
Under 8 U.S.C. § 1227(a)(2)(A)(i), a noncitizen who, within
five years of her admission, is convicted of a crime involving moral
turpitude for which a sentence of one year or longer may be im-
posed, is subject to removal. Pursuant to this statute, on April 22,
2020, the Department of Homeland Security initiated removal pro-
ceedings against K.Y. by filing a Notice to Appear in Immigration
Court. K.Y. admitted the factual allegations in the Notice and con-
ceded the charge of removability but applied for asylum, withhold-
ing of removal, and CAT protection because she feared she would
be tortured in Guyana for being transgender. She supported her
application with a number of documents discussing discrimination
against lesbian, gay, bisexual, and transgender (“LGBT”) individu-
als in Guyana, including in schools, employment, and healthcare.
These documents also indicated that Guyanese law enforcement
“commonly . . . mocked” individuals for their sexual orientation,
some officers used anti-cross-dressing laws that were not enforced
to “threaten and harass LGBT persons into paying bribes,” and
other officers refused to take reports from LGBT persons.
B
On June 29, 2020, at a hearing on K.Y.’s application for asy-
lum, the presiding Immigration Judge heard testimony from K.Y.
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and her country conditions expert, Professor James Wilets. The Im-
migration Judge found both of their testimonies credible.
K.Y. explained that when she lived in Guyana, she identified
as a gay man, but she kept her identity a secret out of fear. Her fear
was based, in part, on three instances of violence or threats of vio-
lence she personally observed: one, at a bar, she saw a group of
men physically attack a “feminine” man while using derogatory
slurs, which culminated in the “feminine” man being stabbed in the
abdomen with a beer bottle; two, at a regatta, a group of men ap-
proached K.Y. while she was wearing “fitted” clothing and threat-
ened to beat her up, stating that they “burn[ed] [her] type”; and,
three, while riding her motorcycle, a police officer stopped K.Y.,
asked her if she “was left or right,” and extorted money from her.
Fortunately, K.Y. was never the victim of any physical violence
while she lived in Guyana. She attributes this to her efforts to con-
ceal her sexual orientation and identity.
K.Y.’s country conditions expert, Professor Wilets, testified
that a transgender person is much more likely than other LGBT
persons to experience violence in Guyana. As a result, he opined
that K.Y. would face “considerable” danger and “general persecu-
tion” if she were to return to Guyana, and that “it would be really
[ ] extraordinary if [Petitioner] did not experience physical vio-
lence.” He further testified that the police in Guyana did not “target
the [LGBT] community,” but that officers were “unwilling to help”
or “in some cases, actually [were] part of the violence against gay
people.”
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After considering the testimony of K.Y. and her expert and
the other evidence presented, the Immigration Judge denied K.Y.’s
application for relief and protection and ordered her removed to
Guyana. She determined that the plain language of the statute
criminalizing traveling to meet a minor “indicate[d] a dangerous-
ness that causes it to fall within the ambit of a particularly serious
crime,” and, as such, K.Y. was not eligible for asylum or withhold-
ing of removal. The Immigration Judge also denied K.Y.’s applica-
tion for CAT deferral, finding that the discrimination and extortion
K.Y. experienced did not rise to the level of torture, and that K.Y.
had not shown a likelihood of future torture by the Guyanese gov-
ernment. K.Y. appealed, and the Board affirmed the Immigration
Judge’s decision without opinion. This appeal followed. We ad-
dress each of K.Y.’s arguments in turn.
II
A
First, K.Y. argues that the Board’s determination—namely,
that she had not shown that she would more likely than not be tor-
tured if she is returned to Guyana—was not supported by substan-
tial evidence, or, alternatively, that the Immigration Judge did not
give reasoned consideration to the evidence. We disagree as to the
former argument and lack jurisdiction to review the latter.
We analyze the Immigration Judge’s conclusions because
the Board affirmed without opinion. Mutua v. U.S. Att'y Gen., 22
F.4th 963, 967–68 (11th Cir. 2022). The Immigration Judge’s legal
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conclusions are reviewed de novo, and her findings of fact must be
supported by substantial evidence. Perez-Zenteno v. U.S. Att’y
Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). “Under this highly def-
erential standard of review, the [immigration judge]’s decision can
be reversed only if the evidence ‘compels’ a reasonable fact finder
to find otherwise.” Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226,
1230 (11th Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992)).
To qualify for CAT protection, K.Y. bears the burden of
showing either (1) that it is more likely than not that she would be
tortured by her government if she is returned to Guyana, or (2) that
it is more likely than not that with the instigation, consent, or ac-
quiescence of a public official or other person acting in an official
capacity, she would be tortured if she is returned to Guyana. See 8
C.F.R. §§ 1208.16(c), 1208.18(a). “Torture” is defined as
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as obtaining from him or her or
a third person information or a confession, punishing
him or her for an act he or she or a third person has
committed or is suspected of having committed, or
intimidating or coercing him or her or a third person,
or for any reason based on discrimination of any kind
...
Id. § 1208.18(a)(1). It is an “extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to
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8 Opinion of the Court 21-10271
torture.” Id. § 1208.18(a)(2); see Perez-Guerrero v. U.S. Att’y Gen.,
717 F.3d 1224, 1232 (11th Cir. 2013). In addition, to qualify as “tor-
ture” an act must be inflicted outside the realm of lawful sanctions
by, at the instigation of, or with the consent or acquiescence of a
public official or other person acting in an official capacity. 8 C.F.R.
§ 1208.18(a)(1), (3). “Acquiescence of a public official requires that
the public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her legal re-
sponsibility to intervene to prevent such activity.” 8 C.F.R.
§ 1208.18(a)(7); Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,
891 (11th Cir. 2007) (citing Reyes-Sanchez v. U.S. Att’y Gen., 369
F.3d 1239, 1242 (11th Cir. 2004)).
In determining whether an applicant is entitled to CAT pro-
tection, “all evidence relevant to the possibility of future torture
shall be considered,” including (1) whether the applicant has expe-
rienced past torture; (2) whether she could avoid future torture by
relocating within the country; and (3) evidence about wider coun-
try conditions, including whether there have been gross, flagrant
or mass violations of human rights in the country. See 8 C.F.R.
§ 1208.16(c). The evidence must demonstrate that the applicant
will be specifically and individually targeted for torture. Jean-Pierre
v. U.S. Att’y Gen., 500 F.3d 1315, 1324 (11th Cir. 2007); In re J-E, 23
I&N Dec. 291, 300–01 (BIA 2002) (en banc).
The Immigration Judge determined that K.Y. had not met
this high burden because, while she pointed to evidence of discrim-
ination and even physical violence against the LGBT population in
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Guyana, she had not pointed to any evidence suggesting that she,
specifically and individually, would be tortured by Guyanese offi-
cials. While K.Y. had recounted instances of being personally ex-
torted by the police in Guyana, this is not the same as torture. She
noted that K.Y. did not describe experiencing past harm in Guyana
rising to the level of torture, either by a private actor or govern-
ment official, including when she returned to Guyana for one week
in 2011. Based on this, the Immigration Judge found that K.Y.’s
claim was “insufficiently supported by the record to meet the
CAT’s high ‘more likely than not’ burden.”
Turning to the acquiescence prong, the Immigration Judge
found that the evidence did not establish that the Guyanese gov-
ernment would more likely than not acquiesce in K.Y.’s supposed
torture. She acknowledged that the record evinced widespread har-
assment and discrimination against LGBT individuals, as well as
some acts of violence that did rise to the level of torture. However,
the Immigration Judge also found that the evidence demonstrated
that the Guyanese government has taken steps in recent years to
improve country conditions for the LGBT population in Guyana,
including hosting a gay pride parade and allowing a number of ac-
tive LGBT advocacy organizations to operate freely. Moreover, the
Immigration Judge found that the country conditions evidence in-
dicated that the police did not enforce the laws criminalizing same-
sex relations, except to extort bribes, and that the Guyanese
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government had agreed to abide by a recent decision of the Carib-
bean Court of Justice that overturned its prohibition of cross-dress-
ing.
K.Y. presents two reasons she believes the Immigration
Judge erred, although she conflates them in her briefing: either be-
cause the Immigration Judge did not give reasoned consideration
to the evidence, or because her conclusions were not supported by
substantial evidence. Notably, K.Y.’s “substantial evidence” argu-
ment is a separate claim from her “reasoned consideration” argu-
ment, and it is analyzed under a different standard of review. Com-
pare Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016)
(“[A]n assertion that the agency failed to give reasoned considera-
tion to an issue is a question of law that we review de novo.”), with
Priva v. U.S. Att’y Gen., 34 F.4th 946, 957 (11th Cir. 2022) (“In re-
viewing a factual challenge to the denial of CAT relief, we apply
the substantial evidence standard of review.”). A “reasoned-consid-
eration examination does not look to whether the agency’s deci-
sion is supported by substantial evidence.” Jeune, 810 F.3d at 803.
“Rather, it looks to see whether the agency has considered the is-
sues raised and announced its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought and not
merely reacted.” Id. (cleaned up); see also Indrawati v. U.S. Att’y
Gen., 779 F.3d 1284, 1305 (11th Cir. 2015) (“Cases discussing our
review of administrative findings of fact under the substantial-evi-
dence test are inapplicable to the question of whether the BIA’s
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decision exhibits reasoned consideration.”). Thus, we address each
argument separately.
K.Y. first contends that the Immigration Judge did not give
reasoned consideration to all the evidence that she would probably
be tortured if she returned to Guyana as a transgender woman.
But K.Y. did not present her “reasoned consideration” argu-
ment below and, as a result, we lack jurisdiction to review it. “We
have held that failure to raise an issue to the B[oard] constitutes a
failure to exhaust.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860,
867 (11th Cir. 2018). We have “also determined that the failure to
exhaust is jurisdictional, ‘so we lack jurisdiction to consider claims
that have not been raised before the B[oard].’” Id. (quoting Sundar
v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003)); see 8 U.S.C. §
1252(d)(1) (“A court may review a final order of removal only if . . .
the alien has exhausted all administrative remedies available to the
alien as of right[.]”). K.Y.’s “arguments about the sufficiency of the
IJ’s reasoning . . . were never raised [before] the [Board] and have
not been administratively exhausted.” Bing Quan Lin, 881 F.3d at
869. “Thus, to the extent [K.Y.] claims that the Immigration Judge’s
order reflected inadequate consideration or insufficient explana-
tion, we cannot examine that claim.” Id.
But even if K.Y. had presented the argument below, it would
still fail on the merits. An immigration judge will be found to have
given reasoned consideration to the evidence unless she “misstates
the contents of the record, fails to adequately explain [her] rejection
of logical conclusions, or provides justifications for [her] decision
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which are unreasonable and which do not respond to any argu-
ments in the record.” Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1334
(11th Cir. 2019) (quoting Jeune, 810 F.3d at 803). The Immigration
Judge did not do any of these things. The record reflects that she
carefully considered the evidence presented about country condi-
tions in Guyana, and the risks that K.Y. might face if she were re-
turned there. That the Immigration Judge reached a different deci-
sion than K.Y. would have liked does not mean that she did not
give reasoned consideration to the evidence.
K.Y. also argues that the Immigration Judge’s conclusion
was not supported by substantial evidence. We disagree. Under the
first prong of the regulation, the Immigration Judge’s conclusion
that K.Y. had not met her burden of demonstrating that she would
be tortured by the Guyanese government was supported by sub-
stantial evidence. The Immigration Judge acknowledged K.Y.’s tes-
timony that she “strongly fear[s] [for] [her] life” and that she fears
“being killed due to [her] feminine traits, such as [her] choice of
apparel or . . . overall physical appearance” as a transgender
woman. However, the Immigration Judge found that the evidence
did not satisfy the high burden of establishing that K.Y. would
“more likely than not” be tortured by, at the instigation of, or with
the consent or acquiescence of a public official or person acting in
an official capacity, even if it “indicates that Guyanese police at
times harass or extort LGBTI persons.” Extortion or discrimination
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are not the same as torture. See Perez-Guerrero, 717 F.3d at 1232.
This conclusion was supported by the record.
Moreover, as the Immigration Judge observed, the country
conditions report states that the government does not enforce its
prohibition on same-sex relations, and the government agreed to
abide by the Caribbean Court of Justice’s decision that overturned
its prohibition on cross-dressing. See Reyes-Sanchez, 369 F.3d at
1243 (“The Board was entitled to rely heavily on” State Depart-
ment country conditions reports). The Immigration Judge did not
conclude that the Guyanese police force engaged in no miscon-
duct; rather, she considered the evidence of misconduct presented
by K.Y.—as she was required to do—and arrived at the decision
that, while repugnant, this misconduct rose only to the level of har-
assment, discrimination, and extortion—not torture. This finding
was supported by K.Y.’s own experience with the police: while K.Y.
testified that a police officer questioned her as to her sexual orien-
tation and ultimately demanded a bribe, K.Y. did not testify that
she had ever been harmed by the Guyanese government, or by any
other person. Finally, the Immigration Judge properly observed
that the record did not establish that the Guyanese government en-
gages in torture as a practice, which further supports her conclu-
sion that K.Y. had not satisfied her burden here. See 8 C.F.R. §
1208.16(c)(3) (explaining that whether there are mass violations of
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human rights is a relevant factor in determining whether there is a
likelihood of future torture).
As to the acquiescence prong, the Immigration Judge’s find-
ings were here too supported by the record. While it is true that
Guyana criminalizes consensual same-sex relations, the Immigra-
tion Judge found that the record established that the police do not
enforce that law, except to sometimes extort bribes, and that the
Guyanese government had agreed to honor a recent decision from
the Caribbean Court of Justice that overturned the prohibition on
cross-dressing. That the Guyanese government has taken affirma-
tive steps to ensure the safety of the LGBT community suggests
that it is unlikely that the Guyanese government would condone
torture against K.Y., even if those steps have not yet entirely elim-
inated harassment and violence against the LGBT community. See
Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1294 (11th Cir. 2020)
(“A government does not acquiesce to torture where it actively,
albeit not entirely successfully, combats the alleged torture.”).
These steps included efforts by the police to prevent mistreatment
and abuse and permitting a gay pride parade.
In sum, while we agree that the evidence K.Y. presented
demonstrated pervasive and disturbing discrimination and harass-
ment against the LGBT community in Guyana, the Immigration
Judge’s determination that K.Y. had not established that it was
more likely than not that she would be tortured by or with the ac-
quiescence of the government if she returned to Guyana was sup-
ported by substantial evidence. We will only disturb the agency’s
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factual findings when “the record not only supports reversal, but
compels it.” Perez-Zenteno, 913 F.3d at 1306. Simply put, that is
not the case here.
B
Second, K.Y. argues that, as a prerequisite to denying CAT
protection, the Board was required to make a separate determina-
tion that she posed a danger to the community, in addition to find-
ing that she had committed a particularly serious crime. Her argu-
ment is based on her reading of 8 U.S.C. §§ 1158(b)(2)(A)(ii) and
1231(b)(3)(B)(ii). These provisions bar eligibility for asylum and
withholding of removal for “an alien . . . if the Attorney General
decides that . . . the alien, having been convicted by a final judg-
ment of a particularly serious crime is a danger to the community
of the United States.” 8 U.S.C. § 1231(b)(3)(B)(ii); see also id. §
1158(b)(2) (similar). The entirety of K.Y.’s argument centers on the
fact that “having been convicted of a particularly serious crime” is
an appositive phrase describing “the alien.” K.Y. contends that be-
cause of this grammatical feature, the statute plainly and unambig-
uously requires a separate determination to be made about
whether the noncitizen is a danger to the community. Otherwise,
according to K.Y., the statute need only say that someone who has
been convicted of a particularly serious crime is ineligible, and the
second half of the sentence would be superfluous.
The Government argues that we need not consider K.Y.’s
argument because she did not raise it before the Board below, and
this Court therefore does not have jurisdiction to consider it. As
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discussed above, immigration petitioners must raise issues before
the agency before presenting them on appeal. See 8 U.S.C. §
1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,
1250 (11th Cir. 2006). “[T]o exhaust a claim before the B[oard], it is
not enough that the petitioner has merely identified an issue to that
body. A petitioner has not exhausted a claim unless [s]he has both
raised the ‘core issue’ before the B[oard], and also set out any dis-
crete arguments [s]he relies on in support of that claim.” Jeune, 810
F.3d at 800. If an issue is not first raised to the agency, the court of
appeals does not have jurisdiction to consider it.
There are a few limited exceptions to this rule, two of which
K.Y. argues apply here. See Sundar, 328 F.3d at 1325. First, she ar-
gues that she did not need to exhaust her statutory interpretation
argument because raising it below “would have been futile” given
the Immigration Judge’s “repeated indications that a determination
that Petitioner had been convicted of a particularly serious crime,
in and of itself, would bar her eligibility for asylum and withholding
of removal.” Alternatively, K.Y. argues that the exhaustion require-
ment does not apply because, given Eleventh Circuit precedent
holding that no separate dangerousness determination is required,
the Board could not provide K.Y. any remedy because it would be
bound by that precedent. See Crespo-Gomez v. Richard, 780 F.2d
932, 934–35 (11th Cir. 1986).
We are not persuaded that any of the exceptions to the ex-
haustion requirement apply here. To start, there is no “perceived
futility” exception. Sundar, 328 F.3d at 1325 And to the extent there
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is an exception where the agency “does not have the power to ad-
judicate” a claim, id., we are not convinced that it would apply in
this case. Because of Chevron, “[o]nly a judicial precedent holding
that the statute unambiguously forecloses the agency’s interpreta-
tion, and therefore contains no gap for the agency to fill, displaces
a conflicting agency construction.” Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982–83 (2005); see
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843–45 (1984).
Our decision in Crespo-Gomez v. Richard didn’t “hold “that its
construction [of the term “particularly serious crime”] follows
from the unambiguous terms of the statute and thus leaves no
room for agency discretion.” 780 F.2d at 934–95; see also Brand X,
545 U.S. at 982. And so K.Y. could have argued to the Board that it
should have adopted her statutory interpretation—an argument
that the Board has frequently accepted in the past. See, e.g., Matter
of M-H-, 26 I. & N. Dec. 46, 49 (BIA 2012) (relying on Brand X to
reject a Third Circuit interpretation in a case arising in the Third
Circuit, because the precedent on point “did not expressly deter-
mine that the language in question was unambiguous”); Matter of
D-R-, 27 I. & N. Dec. 105, 108, 112 (BIA 2017) (similar); Matter of
Agustin Valenzuela Gallardo, 25 I. & N. Dec. 838, 840–44 (BIA
2012) (similar); Matter of Saiful Islam, 25 I. & N. Dec. 637, 641 (BIA
2011) (similar). K.Y.’s effort may have failed. But the important
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point is that making her argument to the Board was an avenue for
relief that was “available to [her] as of right.” 8 U.S.C. § 1252(d)(1).
Moreover, the interpretation of immigration statutes and
regulations is precisely the type of question that the Board is
uniquely positioned to answer, as courts typically defer to the
Board’s “construction of the statute which it administers.” Cole v.
U.S. Att’y Gen., 712 F.3d 517, 531 (11th Cir. 2013). Accordingly.
K.Y. did not properly exhaust her claim, and we lack jurisdiction to
consider it.
But even if we had jurisdiction to consider it, K.Y.’s argu-
ment is squarely foreclosed by this Court’s precedent. In Crespo-
Gomez, we held that “the fact that the alien has committed a par-
ticularly serious crime makes the alien dangerous within the mean-
ing of the statute.” 780 F.2d at 934. We clarified that the statute
does not “require[] two separate findings: first that the alien com-
mitted a particularly serious crime, and second that the alien con-
stitutes a danger” because it “does not connect its two clauses with
a conjunction; rather the statute sets forth a cause and effect rela-
tionship.” Id. at 934; see also Lapaix v. U.S. Att’y Gen., 605 F.3d
1138, 1141 n.2 (11th Cir. 2010) (explaining that “[p]articularly seri-
ous crimes render aliens ineligible for asylum and withholding of
removal” because “[c]onviction of a particularly serious crime nec-
essarily renders one a danger to the community”). Other circuits
that have considered the issue have reached the same conclusion.
See, e.g., Choeum v. INS, 129 F.3d 29, 42–44 (1st Cir. 1997); Flores
v. Holder, 779 F.3d 159, 167 (2d Cir. 2015); Nkomo v. Att’y Gen.,
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930 F.3d 129, 135 (3d Cir. 2019); Gao v. Holder, 595 F.3d 549, 555
n.1 (4th Cir. 2010); Martins v. INS, 972 F.2d 657, 661 (5th Cir. 1992)
(per curiam); Hamama v. INS, 78 F.3d 233, 240 (6th Cir. 1996); Gar-
cia v. INS, 7 F.3d 1320, 1323–26 (7th Cir. 1993); Mumad v. Garland,
11 F.4th 834, 840 (8th Cir. 2021); Gomez-Sanchez v. Sessions, 892
F.3d 985, 991 (9th Cir. 2018); Kankamalage v. INS, 335 F.3d 858,
861 n.2 (9th Cir. 2003).
C
Finally, K.Y. argues that the Board’s determination that trav-
eling to meet a minor to engage in sexual conduct is a particularly
serious crime, at least in view of the facts of this case, was not rea-
sonable. Before addressing that issue, though, we must determine
whether we have jurisdiction to review the Board’s determina-
tion.1
This Court does not have jurisdiction to review any “deci-
sion or action of the Attorney General,” “the authority for which is
specified under [the INA] to be in the discretion of the Attorney
General.” 8 U.S.C. § 1252(a)(2)(B)(ii). But we may review “ques-
tions of law,” id. § 1252(a)(2)(D), which the Supreme Court has
1 Although the parties have not raised this issue, “[e]very federal appellate
court has a special obligation to satisfy itself . . . of its own jurisdiction . . . even
though the parties are prepared to concede it.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 95 (1998) (quotation omitted)).
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20 Opinion of the Court 21-10271
construed to include mixed questions of law and fact, Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062, 1068–69 (2020).
Here, there are two provisions that use the “particularly se-
rious crime” language and potentially implicate our jurisdiction.
The first says that an alien is ineligible for asylum “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.” 8 U.S.C. § 1158(b)(2)(A)(ii).
The second parallels the first, declaring that an alien is ineligible for
withholding of removal “if the Attorney General decides that . . .
the alien, having been convicted by a final judgment of a particu-
larly serious crime is a danger to the community of the United
States.” Id. § 1231(b)(3)(B)(ii). The jurisdictional issue, then, turns
on whether the Attorney General’s “determin[ation]” or
“deci[sion]” that a crime is “particularly serious” is a matter of dis-
cretion insulated from our review.
We hold that it is not. The text of the INA’s jurisdiction-
stripping provision extends only to those decisions which are “spec-
ified” by statute “to be in the [Attorney General’s] discretion.” Id.
§ 1252(a)(2)(B)(ii); see Soltane v. U.S. Dep’t of Justice, 381 F.3d 143,
146 (3d Cir. 2004) (Alito, J.) (“The key to § 1252(a)(2)(B)(ii) lies in
its requirement that the discretion giving rise to the jurisdictional
bar must be ‘specified’ by statute.”). “To ‘specify’ that a decision
belongs to the Attorney General’s discretion requires more than a
hint.” Berhane v. Holder, 606 F.3d 819, 821 (6th Cir. 2010). After
all, the word “‘specify’ means to ‘name or state explicitly or in
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21 Opinion of the Court 21-10271
detail.’” Kucana v. Holder, 558 U.S. 233, 243 n.10 (2010) (quoting
Webster’s New Collegiate Dictionary 1116 (1974)). And neither
§ 1158(b)(2)(A)(ii) nor § 1231(b)(3)(B)(ii) contains such an explicit
designation of discretion. See Delgado v. Holder, 648 F.3d 1095,
1100 (9th Cir. 2011) (en banc).
To be sure, whether a crime is “particularly serious” is some-
thing that the INA says the Attorney General “determines” or “de-
cides.” “But empowering the Attorney General to ‘determine[]’ (or
for that matter ‘decide[]’) something no more ‘specif[ies]’ ‘discre-
tion’ than empowering the Attorney General to exercise any num-
ber of responsibilities under the Act.” Berhane, 606 F.3d at 822 (al-
terations in original). Indeed, if “discretion” meant “‘nothing more
than the application of facts to principles’”—or any of the “other
traditional actions of the Attorney General” that one might charac-
terize as “determinations” or “decisions”—then “it would be diffi-
cult to envision ‘any action by the Attorney General’ that would
not get caught in the jurisdiction-stripping provision’s orbit.” Id.(quoting Soltane, 381 F.3d at 148 n.3). That counsels against an
overly broad reading of § 1252(a)(2)(B)(ii).
It is also telling that “Congress knows how to ‘specify’ dis-
cretion and has done so repeatedly”—at least thirty times—“in
other provisions of the INA.” Alaka v. Att’y Gen. of the U.S., 456
F.3d 88, 97 & nn. 16, 17 (3d Cir. 2006) (collecting statutes that give
“discretion” to the Attorney General). “If Congress had wanted to
specify the discretion to make the ‘particularly serious’ determina-
tion,” one would expect that “it would have employed the same
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22 Opinion of the Court 21-10271
explicit language used in other provisions of the same statute.” Id.
at 98. But it did not.
Finally, even if there were “[a]ny lingering doubt about the
proper interpretation of 8 U.S.C. § 1252(a)(2)(B)(ii),” it “would be
dispelled by a familiar principle of statutory construction: the pre-
sumption favoring judicial review of administrative action.” Ku-
cana, 558 U.S. at 251. Because that presumption is “well-settled,”
we must “assume[] that ‘Congress legislates with knowledge of’ the
presumption.” Id. at 252 (quotation omitted). “The presumption
can only be overcome by ‘clear and convincing evidence’ of con-
gressional intent to preclude judicial review.” Guerrero-Lasprilla,
140 S. Ct. at 1069 (quotation omitted). And no such evidence exists
here.
Accordingly, consistent with almost every circuit that has
addressed the issue, we hold that the INA “does not abate our
power to review the decision that [K.Y.] was convicted of a partic-
ularly serious crime.” Nethagani v. Mukasey, 532 F.3d 150, 155 (2d
Cir. 2008); accord Aviles-Tavera v. Garland, 22 F.4th 478, 485 (5th
Cir. 2022); Valerio-Ramirez v. Sessions, 882 F.3d 289, 295 (1st Cir.
2018); Berhane, 606 F.3d at 822–23; Alaka, 546 F.3d at 95–96.
And so we reach the merits of the Board’s “particularly seri-
ous crime” determination. We note that the standard of review to
be applied in reviewing such a determination appears to be the sub-
ject of a circuit split. Compare Luziga v. Att’y Gen. of the U.S., 937
F.3d 244, 252 n.9 (3d Cir. 2019) (reviewing the issue de novo), with
Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012) (applying abuse
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23 Opinion of the Court 21-10271
of discretion). But we need not decide that issue because K.Y.’s
claim fails under any standard of review.
A crime can either be particularly serious per se, or based on
an individualized determination by the Attorney General (which
can be delegated to other administrative bodies, including immi-
gration judges). See Lapaix, 605 F.3d at 1143. Here, the Immigra-
tion Judge made the individualized determination that the crime
was particularly serious because the plain language of the statute
“indicate[d] a dangerousness that causes it to fall within the ambit
of a particularly serious crime.” That language reads:
(4) Traveling to meet a minor.—Any person who
travels any distance whether within this state, to this
state, or from this state by any means, who attempts
to do so, or who causes another to do so or attempt
to do so for the purpose of engaging in any illegal act
described in chapter 794 [sexual battery], chapter 800
[lewdness, indecent exposure], or chapter 827 [abuse
of children], or to otherwise engage in other unlawful
sexual conduct with a child or with another person
believed by the person to be a child after using a com-
puter online service, Internet service, local bulletin
board service, or any device capable of electronic data
storage or transmission to:
(a) Seduce, solicit, lure, or entice or attempt to
seduce, solicit, lure, or entice a child or another
person believed by the person to be a child, to
engage in any illegal act described in chapter
794 [sexual battery], chapter 800 [lewdness,
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24 Opinion of the Court 21-10271
indecent exposure], or chapter 827 [abuse of
children], or to otherwise engage in other un-
lawful sexual conduct with a child[.]
Fla Stat. § 847.0135(4)(a). And, as interpreted by Florida courts, the
elements required to satisfy this statute are “(1) knowingly travel-
ing within this state, (2) for the purpose of engaging in any illegal
act (in violation of chapters 794 [sexual battery], 800 [lewdness, in-
decent exposure], or 827 [abuse of children], or other unlawful sex-
ual conduct) with the victim after using a computer or other elec-
tronic data storage transmission to contact a child, (3) the victim
was a child or person believed by the defendant to be a child, and
(4) the defendant seduced, solicited, lured, enticed or attempted to
do so to engage in the illegal act or unlawful sexual conduct.” Hart-
ley v. State, 129 So.3d 486, 491 (Fla. Dist. Ct. App. 2014).
K.Y. argues that, regardless of the statutory text, traveling to
meet a minor is not a particularly serious crime under the facts pre-
sented here because “the offense did not require or involve the in-
tent to use, or actual use of, force or violence” and “[t]here was no
actual endangerment or harm to the class of persons the statute is
intended to protect, i.e., an underage individual.” But neither of
those factors are required to make a crime particularly serious, and
the Board did not err in finding that K.Y.’s conviction nevertheless
rises to this level. The plain language of the statute requires a per-
petrator to knowingly attempt to engage in unlawful sexual con-
duct or some other illegal act, like abuse, with a person the perpe-
trator believes is a child. Fla. Stat. § 847.0135(4)(a). It is no analytical
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25 Opinion of the Court 21-10271
strain to conclude that this is particularly serious in several respects.
For one, it is a crime directed at a person, not property. See Matter
of R-A-M-, 25 I. & N. Dec. 657, 662 (BIA 2012) (explaining that “an
offense is more likely to be considered particularly serious if it is
against a person”). Worse, it involves a vulnerable population—
children. See Thompson v. Barr, 922 F.3d 528, 533 (4th Cir. 2019)
(“Sexual abuse of children always involves preying on the vulnera-
ble . . . .”). Moreover, the mens rea requires the perpetrator to
knowingly attempt to solicit a person believed to be a child to en-
gage in sexual conduct. And the harm the statute targets—sexual
abuse—is likewise serious. This seriousness is reflected by the
lengthy 42-month sentence K.Y. served for her crime, as well as the
requirement that she register as a sex offender.
On top of that, the Immigration Judge highlighted the
“deeply troubl[ing]” features of K.Y.’s crime. Her actions did not
result from a mere “lapse in judgment.” Rather, after being told
“multiple times” that she was talking to a minor, K.Y.—who was
30 at the time—repeatedly requested nude images and asked to
meet up to engage in various sexual acts. This misconduct occurred
over the course of several weeks. And when K.Y. finally arrived for
a meetup, she appeared more than ready to have sex with a minor.
She showed up with condoms, lubricant, and poppers, and a CVS
receipt showed that some of those items had been purchased “just
prior to arriving on [the] scene.” Add that all up, and the details of
the crime easily “allow an inference that [K.Y.] is a ‘danger to the
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26 Opinion of the Court 21-10271
community of the United States.’” Guerrero v. Whitaker, 908 F.3d
541, 544–45 (9th Cir. 2018).
Based on these factors, we find that the Board did not err
when it found that K.Y.’s conviction constituted a particularly seri-
ous crime.
* * *
For the foregoing reasons, we DENY the petition in part and
DISMISS it in part.