Anaya-Ortiz v. Mukasey ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIRGILIO ANAYA-ORTIZ, 
Petitioner, No. 03-74666
v.
 Agency No.
A092-962-367
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 6, 2007—Pasadena, California
Filed January 27, 2009
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
Judges, and James K. Singleton,* Senior District Judge.
Opinion by Judge Ikuta
*The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
889
ANAYA-ORTIZ v. MUKASEY 893
COUNSEL
Gary Finn, Indio, California, for the petitioner.
Jennifer J. Keeney and Melissa Neiman-Kelting, Washington,
D.C., for the respondent.
OPINION
IKUTA, Circuit Judge:
Virgilio Anaya-Ortiz (Anaya), a native and citizen of Mex-
ico, petitions for review of a decision by the Board of Immi-
gration Appeals (BIA) dismissing his appeal and ordering him
removed to Mexico. We deny the petition.
I
According to an abstract of judgment dated June 4, 2001,
Anaya pleaded guilty to a violation of California Penal Code
§ 12021(a)(1) for the crime of “POSSESSION OF A FIRE-
ARM BY A FELON” on March 21, 2001.1 He was sentenced
1
California Penal Code § 12021(a)(1) states:
Any person who has been convicted of a felony under the laws
894 ANAYA-ORTIZ v. MUKASEY
to two years and eight months of imprisonment. The informa-
tion under which he was charged stated that the predicate
offense for the felon-in-possession violation was a prior con-
viction for “Driving Under the Influence & Causing Injury, a
felony, in violation of Vehicle Code section 23153(b).”
On August 29, 2002, the former Immigration and Natural-
ization Service (INS) placed Anaya in removal proceedings.
The INS charged that Anaya was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii), which states that “[a]ny alien who is con-
victed of an aggravated felony at any time after admission is
deportable.” For purposes of immigration law, an “aggravated
felony” is an offense defined in 8 U.S.C. § 1101(a)(43). Sec-
tion 1101(a)(43)(E)(ii) defines “aggravated felony” as includ-
ing an offense “described in” the federal felon-in-possession
statute, 18 U.S.C. § 922(g)(1).2 A violation of § 922(g)(1)
includes the following elements relevant to this case: (1) the
person previously has been convicted of a crime punishable
by a term of imprisonment of more than one year; and (2) the
person has possessed any firearm “in or affecting” interstate
or foreign commerce.3 The INS charged that Anaya’s convic-
of the United States, the State of California, or any other state,
government, or country or of an offense enumerated in subdivi-
sion (a), (b), or (d) of Section 12001.6 [specified offenses involv-
ing the violent use of a firearm], or who is addicted to the use of
any narcotic drug, and who owns, purchases, receives, or has in
his or her possession or under his or her custody or control any
firearm is guilty of a felony.
2
8 U.S.C. § 1101(a)(43) states: “The term ‘aggravated felony’ means
. . . (E) an offense described in . . . (ii) section 922(g)(1), (2), (3), (4), or
(5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms
offenses).”
3
18 U.S.C. § 922(g)(1) provides:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year;
...
ANAYA-ORTIZ v. MUKASEY 895
tion of being a felon in possession of a firearm under Califor-
nia Penal Code § 12021(a)(1) met the description of the
federal felon-in-possession offense in § 922(g)(1), and there-
fore qualified as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(E)(ii).
At Anaya’s initial removal hearing, the IJ agreed with the
INS’s position and found Anaya removable as charged. The
IJ also determined that Anaya was ineligible for cancellation
of removal, relief available to certain lawful permanent resi-
dents who would otherwise be removable, because Anaya had
been convicted of an aggravated felony. See 8 U.S.C. § 1229b.4
The IJ granted Anaya a continuance to allow him to apply for
withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A).5
After receiving Anaya’s application for withholding of
removal, the IJ reconvened a hearing on March 10, 2003 to
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
4
8 U.S.C. § 1229b(a) states:
The Attorney General may cancel removal in the case of an alien
who is inadmissible or deportable from the United States if the
alien—
(1) has been an alien lawfully admitted for permanent residence
for not less than 5 years,
(2) has resided in the United States continuously for 7 years
after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
5
Section 1231(b)(3)(A) provides that “the Attorney General may not
remove an alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group,
or political opinion.”
896 ANAYA-ORTIZ v. MUKASEY
determine Anaya’s eligibility.6 At that hearing, Anaya admit-
ted that he had pleaded guilty to being a felon in possession
of a firearm on March 21, 2001. He testified that the predicate
offense to his felon-in-possession conviction was a drunk-
driving conviction, for which he was sentenced to one year in
jail. According to his testimony before the IJ, Anaya drove
into a house while driving drunk. The collision caused part of
the house’s sheetrock wall to collapse on an elderly woman
who lived inside, causing injuries to her shoulder and leg.
Anaya testified that his victim “ended up being okay right
away afterwards because the judge even mentioned to me, he
said that it, if there had been some kind of injury, you know,
and something more serious to her I would have gotten some
kind of cell sentence.”
On the basis of Anaya’s testimony regarding his drunk-
driving conviction, the IJ held that Anaya had been convicted
of a “particularly serious crime” and was therefore ineligible
for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(B)(ii). The IJ also held that Anaya was ineligible
for relief under the Convention Against Torture (CAT), 8
C.F.R. § 1208.16-18, and ordered him removed from the
United States.
Anaya appealed this decision to the BIA. On November 21,
2003, the BIA affirmed the IJ’s decision. The BIA concluded
that Anaya was removable as an aggravated felon and that he
had committed a “particularly serious crime” because “after
drinking alcohol to the point where he was intoxicated, [he]
began driving a motor vehicle in reckless disregard for per-
sons or property whereupon he drove his car into the home of
his victim causing property damage and bodily injury.” After
rejecting Anaya’s remaining arguments, the BIA dismissed
Anaya’s appeal. Anaya timely filed a petition for review.
6
An alien is ineligible for withholding of removal if “the alien, having
been convicted by a final judgment of a particularly serious crime is a dan-
ger to the community of the United States.” 8 U.S.C. § 1231(b)(3)(B)(ii).
ANAYA-ORTIZ v. MUKASEY 897
Anaya raises two arguments before us: (1) that he is not
removable because his felon-in-possession conviction does
not constitute a conviction of an aggravated felony; and (2)
that he is eligible for withholding of removal because his
drunk-driving conviction does not constitute a conviction of
a “particularly serious crime.” We address each in turn.
II
Anaya’s first argument is that the IJ and BIA erred in hold-
ing that he was removable as an aggravated felon under 8
U.S.C. § 1101(a)(43)(E)(ii). Specifically, he argues that his
conviction for being a felon in possession of a firearm under
California Penal Code § 12021(a)(1) does not qualify as an
“aggravated felony” conviction for immigration purposes.
Following the framework articulated in Taylor v. United
States, 495 U.S. 575 (1990), we answer this question in two
steps. First, we “compare the elements of the statute of con-
viction with a federal definition of the crime to determine
whether conduct proscribed by the statute is broader than the
generic federal definition.” Quintero-Salazar v. Keisler, 506
F.3d 688, 692 (9th Cir. 2007). We refer to this step in our
analysis as the “categorical approach,” because in this step we
determine whether the statute of conviction categorically
qualifies as a generic federal crime. Second, if the statute of
conviction criminalizes a broader range of conduct than the
federal generic crime, we use the modified categorical
approach, which requires us to review the record of convic-
tion to determine whether a defendant was necessarily con-
victed of the elements of the federal generic crime. See
Shepard v. United States, 544 U.S. 13, 20-21 (2005). In mak-
ing this determination, we may consider only “the terms of
the charging document, the terms of a plea agreement or tran-
script of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or
. . . some comparable judicial record of this information.” Id.
at 26. A “comparable judicial record” includes a document
898 ANAYA-ORTIZ v. MUKASEY
(such as a minute order) prepared by a neutral officer of the
court, provided that the defendant has the right to examine the
document and challenge its accuracy. See United States v.
Snellenberger, 548 F.3d 699, 2008 WL 4717190, *2 (9th Cir.
Oct. 28, 2008) (en banc) (per curiam).
[1] Anaya first contends that the state statute of conviction,
California Penal Code § 12021(a)(1), cannot qualify as the
generic federal offense of being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1), under the categorical
approach. Anaya argues that § 922(g)(1) includes an
interstate-commerce element not present in the state offense.
See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th
Cir. 2007) (en banc). But this argument is foreclosed by
United States v. Castillo-Rivera, which held that a state crime
of conviction need not have the interstate-commerce element
contained in 18 U.S.C. § 922(g)(1) to qualify as an aggravated
felony under § 1101(a)(43)(E)(ii). See United States v.
Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001). While
Castillo-Rivera “dealt with categorizing a prior conviction for
purposes of sentencing in a criminal case, the [Supreme]
Court has noted that where a statute ‘has both criminal and
noncriminal applications,’ the statute should be consistently
interpreted in both criminal and noncriminal, i.e., immigra-
tion, applications.” Martinez-Perez v. Gonzalez, 417 F.3d
1022, 1028 (9th Cir. 2005) (quoting Leocal v. Ashcroft, 543
U.S. 1, 11 n.8 (2004)); see also United States v. Figueroa-
Ocampo, 494 F.3d 1211, 1216 (9th Cir. 2007) (noting that
“aggravated felony” has the same meaning under the INA and
the Sentencing Guidelines).
[2] After rejecting the petitioner’s interstate-commerce
argument in Castillo-Rivera, we explained that, “[t]o the
extent that the full range of conduct encompassed by CPC
§ 12021(a) may not constitute an aggravated felony as an
offense described in 18 U.S.C. § 922(g)(1) (e.g., § 12021(a)
appears to include the possession of a firearm by an individual
convicted of specified misdemeanors, as well as by one ‘who
ANAYA-ORTIZ v. MUKASEY 899
is addicted to the use of any narcotic drug’), the court may
follow a ‘modified categorical approach.’ ” 244 F.3d at 1022.
We follow the same course here.
[3] Accordingly, we next address Anaya’s contention that
his record of conviction does not establish that he was neces-
sarily convicted of all the elements of § 922(g)(1) under the
modified categorical approach. We conclude that it does.
Anaya’s abstract of judgment states that he was convicted of
the crime of “POSSESSION OF A FIREARM BY A
FELON” and sentenced to a term of imprisonment of two
years and eight months, which is sufficient under the modified
categorical approach to confirm that he was necessarily con-
victed of the elements of the generic felon-in-possession
offense, § 922(g)(1). See Castillo-Rivera, 244 F.3d at 1023. In
light of Snellenberger, we may rely on Anaya’s abstract of
judgment in making this determination. Like the minute order
at issue in Snellenberger, an abstract of judgment is not “a
secret document.” 2008 WL 4717190 at *2. Under California
law, an abstract of judgment is “a contemporaneous, statu-
torily sanctioned, officially prepared clerical record of the
conviction and sentence.” People v. Delgado, 183 P.3d 1226,
1234 (Cal. 2008) (emphasis omitted). It is ordinarily prepared
by the clerk of court to “digest or summarize” a judgment of
conviction and for use as the commitment order. People v.
Mitchell, 26 P.3d 1040, 1042 (Cal. 2001); Cal. Penal Code
§ 1213(a) (requiring, in most cases, that a minute order or
abstract of judgment be furnished to the officer charged with
executing a court’s probationary order or judgment). A court
may correct any errors in the abstract of judgment “on its own
motion or upon the application of the parties.” Mitchell, 26
P.3d at 1042; accord People v. Morelos, 168 Cal. App. 4th
758, 768 (Cal. Ct. App. 2008) (correcting an abstract of judg-
ment upon application by the defendant); People v. Garcia,
168 Cal. App. 4th 261, 292 (Cal. Ct. App. 2008) (same).
Because an abstract of judgment, like a minute order, “is pre-
pared by a neutral officer of the court,” and because a defen-
dant has “the right to examine and challenge its content,”
900 ANAYA-ORTIZ v. MUKASEY
Snellenberger, 2008 WL 4717190 at *2, we may rely on it
when applying the modified categorical approach. Accord-
ingly, Anaya’s conviction under California Penal Code
§ 12021(a)(1) qualifies as an “aggravated felony” conviction
for immigration purposes.
[4] Anaya also argues that the judgment in his case does
not contain the “critical phrase ‘as charged in the Informa-
tion,’ ” and so it does not establish that his prior crime was an
aggravated felony. Anaya quotes our decision in United States
v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), where we
explained that “[i]n order to identify a conviction as the
generic offense through the modified categorical approach,
when the record of conviction comprises only the indictment
and the judgment, the judgment must contain the critical
phrase ‘as charged in the Information.’ ” Id. at 1087. In Vidal,
the defendant’s judgment stated that he was convicted of
unlawfully driving or taking a vehicle and receiving stolen
property, but did not provide sufficient information to estab-
lish that he had been convicted of each element of the federal
generic crime. Id. at 1075-77. Although the criminal com-
plaint provided sufficient facts to establish that the defendant
had been charged with each element of the generic crime, we
held that we could not rely on the information in the com-
plaint unless it had been incorporated by reference in the
judgment. Id. at 1087-88 (holding that “charging documents
are insufficient alone to prove the facts to which a defendant
admitted” (alterations and internal quotation marks omitted)).
Vidal does not help Anaya, however, because here the
abstract of judgment provides sufficient information to estab-
lish that he was convicted of each element of the generic fed-
eral crime, without reference to his charging document.
Because under Snellenberger the information in the abstract
of judgment is sufficient to establish that Anaya was con-
victed of all the elements of an “aggravated felony” under
§ 1101(a)(43)(E)(ii), the BIA correctly held him removable
under § 1227(a)(2)(A)(iii).
ANAYA-ORTIZ v. MUKASEY 901
III
Anaya’s next claim is that the IJ and BIA erred in holding
that he was not eligible for withholding of removal, because
his drunk-driving conviction does not constitute a conviction
of a “particularly serious crime” under 8 U.S.C.
§ 1231(b)(3)(B)(ii). He asserts that the BIA erred as a matter
of law when determining whether his drunk-driving convic-
tion was a “particularly serious crime” by considering the
wrong factors and by basing its determination on the testi-
mony Anaya gave at his removal hearing.
An alien is ineligible for withholding of removal “if the
Attorney General decides that . . . (ii) the alien, having been
convicted by final judgment of a particularly serious crime is
a danger to the community of the United States.” 8 U.S.C.
§ 1231(b)(3)(B). Although 8 U.S.C. § 1252(a)(2)(B)(ii)
deprives us of jurisdiction to evaluate discretionary decisions
by the Attorney General, § 1252(a)(2)(D) preserves our juris-
diction to review “questions of law raised upon a petition for
review.” As a result, “[w]hile we cannot reweigh evidence to
determine if the crime was indeed particularly serious, we can
determine whether the BIA applied the correct legal standard
in making its determination.” Afridi v. Gonzales, 442 F.3d
1212, 1218 (9th Cir. 2006), overruled in part on other
grounds by Estrada-Espinoza v. Mukasey, ___ F.3d ___, 2008
WL 4615681, *9 n.15 (9th Cir. Oct. 20, 2008) (en banc).
Whether the BIA and IJ relied on improper evidence in mak-
ing the “particularly serious crime” determination is one such
question of law that we have jurisdiction to review. See Mora-
les v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007).
A
When we “confront[ ] questions implicating an agency’s
construction of the statute which it administers,” the Supreme
Court has directed us to “appl[y] the principles of deference
described in Chevron U.S.A., Inc. v. Natural Resources
902 ANAYA-ORTIZ v. MUKASEY
Defense Council, Inc., 467 U.S. 837, 842 (1984).” INS v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (internal quotation
marks omitted). Accordingly, we ask “whether the statute is
silent or ambiguous with respect to the specific issue before
it.” Id. (internal quotation marks omitted). If there is “binding
agency precedent on-point (either in the form of a regulation
or a published BIA case),” Kharana v. Gonzales, 487 F.3d
1280, 1283 n.4 (9th Cir. 2007), we will defer to that precedent
so long as it is “reasonable,” see Morales, 478 F.3d at 982;
see also Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004) (noting that we give deference “to the BIA’s interpreta-
tion [of the INA] unless that interpretation is contrary to the
plain and sensible meaning of the statute”). Moreover, a “cir-
cuit court must apply Chevron deference to an agency’s inter-
pretation of a statute regardless of the circuit court’s contrary
precedent, provided that the court’s earlier precedent was an
interpretation of a statutory ambiguity.” Duran Gonzales v.
DHS, 508 F.3d 1227, 1235-36 (citing Nat’l Cable & Tele-
comms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
980-82 (2005)). As Brand X explained, “[o]nly a judicial pre-
cedent holding that the statute unambiguously forecloses the
agency’s interpretation, and therefore contains no gap for the
agency to fill, displaces a conflicting agency construction.”
545 U.S. at 982-83.
[5] In Morales, we held that the BIA’s interpretation of
“what an IJ may refer to in deciding whether a prior offense
is a particularly serious crime” was entitled to deference
under Chevron and Aguirre-Aguirre. We based this holding
on our conclusion that the INA is “silent regarding the basis
for determining whether a conviction is for a particularly seri-
ous crime,” and that the BIA’s interpretation in Matter of
L—S—, 22 I. & N. Dec. 645, 651 (BIA 1999), was “based on
a reasonable—and therefore permissible—construction of the
statute.” Morales, 478 F.3d at 982. Deferring to Matter of L
—S—, we held “that the particularly serious crime determina-
tion . . . may be made by looking only to the record of convic-
tion and sentencing information.” Id. We noted that the record
ANAYA-ORTIZ v. MUKASEY 903
of conviction “consists of a narrow, specified set of docu-
ments that includes the state charging document, a signed plea
agreement, jury instructions, guilty pleas, transcripts of a plea
proceeding and the judgment,” and that it “may also include
any explicit factual finding by the trial judge to which the
defendant assented.” Id. (internal quotation marks and cita-
tions omitted).
[6] Citing Morales, Anaya argues that the IJ and BIA erred
in relying solely on his removal-hearing testimony in holding
that he had been convicted of a “particularly serious crime.”
But since our decision in Morales, the BIA has clarified its
interpretation of what evidence “an IJ may refer to in deciding
whether a prior offense is a particularly serious crime.” 478
F.3d at 980. In a more recent precedential decision, Matter of
N—A—M—, the BIA discussed the “particularly serious
crime” determination under § 1231(b)(3)(B)(ii) and explained
that
once the elements of the offense are examined and
found to potentially bring the offense within the
ambit of a particularly serious crime, all reliable
information may be considered in making a particu-
larly serious crime determination, including the con-
viction records and sentencing information, as well
as other information outside the confines of a record
of conviction.
24 I. & N. Dec. 336, 342 (BIA 2007). The BIA explained that,
in its judgment, our decision in Morales had misconstrued its
decision in Matter of L—S—, which, although allowing con-
sideration of the record of conviction and sentencing informa-
tion, “did not prohibit the examination of other evidence or
indicate that only conviction records and sentencing informa-
tion could be used.” Id. According to the BIA, the limited
inquiry that Morales erroneously held was required by Matter
of L—S— would be inappropriate given the discretionary
nature of the “particularly serious crime” determination:
904 ANAYA-ORTIZ v. MUKASEY
It has been our practice to allow both parties to
explain and introduce evidence as to why a crime is
particularly serious or not. We see no reason to
exclude otherwise reliable information from consid-
eration in an analysis of a particularly serious crime
once the nature of the crime, as measured by its ele-
ments, brings it within the range of a “particularly
serious” offense.
Id. The BIA therefore upheld an IJ’s “particularly serious
crime” determination based on the facts alleged in a “State-
ment in Support of Warrantless Arrest,” as well as a judgment
of conviction for “felony menacing” under Colorado law. Id.
at 337 (“Under section 18-3-206(1) of the Colorado Revised
Statutes, a person ‘commits the crime of menacing if, by any
threat or physical action, he or she knowingly places or
attempts to place another person in fear of imminent serious
bodily injury.’ ”).
As noted in Morales, we must defer to the BIA’s statutory
interpretation regarding what evidence may be considered in
deciding whether a prior offense is a particularly serious
crime, Morales, 478 F.3d at 982, so long as the BIA’s inter-
pretation “is based on a reasonable—and therefore
permissible—construction of the statute.” Id. Under Brand X,
we must apply Chevron deference to the BIA’s most recent
interpretation of § 1231(b)(3)(B)(ii) in Matter of N—A—M—
if it is reasonable, regardless of our prior decision in Morales.
See Gonzales, 508 F.3d at 1239.
[7] We now hold that the BIA’s interpretation of the evi-
dence that may be considered in a “particularly serious crime”
determination, as set forth in Matter of N—A—M—, is reason-
able. An IJ ordinarily considers any relevant evidence
adduced at a removal hearing, 8 C.F.R. § 1240.1(c), and noth-
ing in the language of the “particularly serious crime” provi-
sions in the INA limits the scope of permissible evidence. See
8 U.S.C. §§ 1158(b)(2)(A)(ii) & 1231(b)(3)(B)(ii). In under-
ANAYA-ORTIZ v. MUKASEY 905
taking a case-specific consideration of whether the circum-
stances of an alien’s prior crime made it “particularly
serious,” see Afridi, 442 F.3d at 1222, it is reasonable for the
BIA to maintain its practice of “allow[ing] both parties to
explain and introduce evidence as to why a crime is particu-
larly serious or not.” Matter of N—A—M—, 24 I. & N. Dec.
at 344. We therefore defer to the BIA’s reasonable conclusion
that “all reliable information may be considered in making a
particularly serious crime determination, including the con-
viction records and sentencing information, as well as other
information outside the confines of a record of conviction.”
Id. at 342. We are bound by Brand X to apply the BIA’s inter-
pretation in Matter of N—A—M—, rather than the interpreta-
tion in Matter of L—S— to which we previously deferred in
Morales. See Gonzales, 508 F.3d at 1236 n.7.
B
[8] We now address whether a “particularly serious crime”
determination may be based on an alien’s own testimony at
his removal hearing. We hold that such testimony is just the
sort of “reliable information . . . outside the confines of a
record of conviction” referred to in Matter of N—A—M—, 24
I. & N. Dec. at 342. We see no reason to question the reliabil-
ity of testimony giving rise to a “particularly serious crime”
determination where the alien is testifying under oath, see 8
C.F.R. § 1240.7(b), on his own behalf in order to obtain relief
from removal, and risking ineligibility for asylum and with-
holding of removal should the IJ determine that he has been
convicted of a “particularly serious crime” under 8 U.S.C.
§ 1231(b)(3)(B)(ii). “Where the BIA does not make an
explicit adverse credibility finding, we must assume that [the
petitioner’s] factual contentions are true.” Navas v. INS, 217
F.3d 646, 652 n.3 (9th Cir. 2000); see also Kalubi v. Ashcroft,
364 F.3d 1134, 1137 (9th Cir. 2004) (“Testimony must be
accepted as true in the absence of an explicit adverse credibil-
ity finding.”). Accordingly, we reject Anaya’s argument that
the BIA’s reliance on his own testimony was improper.
906 ANAYA-ORTIZ v. MUKASEY
C
Anaya also argues that the BIA applied the wrong legal
standard by failing to properly consider all the facts and cir-
cumstances giving rise to his drunk-driving conviction.
Although we lack jurisdiction over the BIA’s ultimate deter-
mination that Anaya committed a “particularly serious crime”
when he drunkenly drove his car into an elderly victim’s
house and caused part of the wall to collapse on her, we retain
jurisdiction to review whether the BIA used the correct legal
analysis in reaching this conclusion. See Afridi, 442 F.3d at
1218. “[I]n most cases, determining whether a crime is partic-
ularly serious requires a case-by-case analysis, using ‘such
factors as the nature of the conviction, the circumstances and
underlying facts of the conviction, [and] the type of sentence
imposed.” Id. at 1219 (quoting Matter of Frentescu, 18 I. &
N. Dec. 244, 247 (BIA 1982)).
[9] The BIA’s “approach to determining whether a crime is
particularly serious has evolved since” Matter of Frentescu.
Matter of N—A—M—, 24 I. & N. Dec. at 342. As Matter of
N—A—M— explains, “once an alien is found to have commit-
ted a particularly serious crime, we no longer engage in a sep-
arate determination to address whether the alien is a danger to
the community.” Id. Thus, “[o]nce the INS makes a finding
that an offense constitutes a particularly serious crime, a sepa-
rate determination of danger to the community is not
required.” Kankamalage v. INS, 335 F.3d 858, 861 n.2 (9th
Cir. 2003). This revised approach is contained in the current
BIA regulations, which provide that “an alien who has been
convicted of a particularly serious crime shall be considered
to constitute a danger to the community.” 8 C.F.R.
§ 1208.16(d)(2); see also Matter of Carballe, 19 I. & N. Dec.
357, 360 (BIA 1996) (explaining that “a separate determina-
tion of dangerousness focusing on the likelihood of future
serious misconduct on the part of the alien” is not required by
the statute because, when “determining whether a conviction
is for [a particularly serious] crime, the essential key is
ANAYA-ORTIZ v. MUKASEY 907
whether the nature of the crime is one which indicates that the
alien poses a danger to the community”).
[10] The record does not support Anaya’s contention that
the IJ and BIA committed legal error by failing to consider
whether the type and circumstances of his crime indicate that
he will be a danger to the community. The IJ’s decision ana-
lyzed the nature of Anaya’s drunk driving offense with suffi-
cient reference to its dangerousness:
Drunk driving results in untold loss of human poten-
tial, not to mention the thousands of deaths each
year. [Anaya] was driving drunk and ran into a
stranger’s home. He hit the home with such force
that the interior walls collapsed and injured a
woman.
. . . It strikes me that this woman, who was no doubt
in some repose in her own home, had an expectation
that she need not fear drunk drivers. [Anaya] shat-
tered this belief by basically barging into her home
with his car. He inflicted what the California statutes
refer to as great bodily injury on her.
The BIA determined that Anaya’s testimony “establishes that
the respondent, after drinking alcohol to the point where he
was intoxicated, began driving a motor vehicle in reckless dis-
regard for persons or property whereupon he drove his car
into the home of his victim causing property damage and bod-
ily injury.” The BIA also noted that Anaya “was confined for
his criminal actions.” We therefore conclude that the BIA
properly considered “the nature of the conviction, the circum-
stances and underlying facts of the conviction, [and] the type
of sentence imposed” when reaching its conclusion that
Anaya’s drunk driving constituted a “particularly serious
crime.” Afridi, 442 F.3d at 1219; accord Matter of N—A—M
—, 24 I. & N. Dec. at 342 (reciting the same factors).
[11] Finally, Anaya argues that because “reckless disre-
gard” is not an element of California Vehicle Code
908 ANAYA-ORTIZ v. MUKASEY
§ 23153(b), his drunk-driving conviction cannot constitute a
conviction of a “particularly serious crime.” Although
Anaya’s argument is not entirely clear, he cites Leocal v. Ash-
croft, 543 U.S. 1 (2004), which held that state DUI offenses
“which either do not have a mens rea component or require
only a showing of negligence in the operation of a vehicle”
are not categorically “crime[s] of violence” under 18 U.S.C.
§ 16. Id. at 5. But the categorical and modified categorical
approaches are not applicable to evaluating whether a crime
is “particularly serious.” Matter of N—A—M—, 24 I. & N.
Dec. at 344. We therefore conclude that the BIA applied the
correct legal standard in determining that Anaya was con-
victed “of a particularly serious crime and is a danger to the
community of the United States,” making him ineligible for
withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii).
IV
We reject Anaya’s arguments that he is not removable as
an aggravated felon and that the BIA improperly determined
that he had been convicted of a “particularly serious crime”
based on his testimony at his removal hearing. Accordingly,
Anaya’s petition for review is DENIED.