Afridi v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAHMATULLAH AFRIDI, 
Petitioner, No. 04-76600
v.
 Agency No.
A27-338-200
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of a Decision of the
Board of Immigration Appeals
Argued and Submitted
February 15, 2006—San Francisco, California
Filed April 4, 2006
Before: Procter Hug, Jr., Arthur L. Alarcón, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Alarcón
3763
3766 AFRIDI v. GONZALES
COUNSEL
Kevin H. Knutson, Sacramento, California, for the petitioner.
Paul Fiorino and Margaret K. Taylor, United States Depart-
ment of Justice, Civil Division, Washington, D.C., for the
respondent.
AFRIDI v. GONZALES 3767
OPINION
ALARCÓN, Circuit Judge:
Petitioner Rahmatullah Afridi petitions for review of the
Board of Immigration Appeals’ (“BIA”) decision dismissing
his appeal and ordering him removed to Afghanistan. Mr.
Afridi contends that the BIA erred in finding him removable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having commit-
ted an aggravated felony and in denying him withholding of
removal pursuant to 8 U.S.C. § 1231(b)(3) and protection
under Article 3 of the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment,
opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20,
at 20 (1988), 23 I.L.M. 1017, 1028 (1984) (“Convention
Against Torture”). Mr. Afridi also contends that the BIA vio-
lated his right to due process by failing to apply proper legal
standards. We conclude that Mr. Afridi was removable for
having committed an aggravated felony. We also hold that the
BIA applied the proper legal standard in determining that Mr.
Afridi does not qualify for relief under the Convention
Against Torture. We grant the petition for review in part,
however, because we conclude that the BIA failed to apply
the proper legal standard in determining Mr. Afridi’s eligibil-
ity for withholding of removal.
I
Mr. Afridi, a citizen of Afghanistan, was admitted to the
United States as a refugee in 1985 and became a lawful per-
manent resident in 1986.
In 1993, Mr. Afridi pled no contest to his indictment under
what is now California Penal Code § 261.5(c) (West 2005) for
unlawful sexual intercourse with a minor who is more than
three years younger than the perpetrator and was sentenced to
three years probation. Mr. Afridi, who was born in 1961, testi-
fied in immigration court that this conviction resulted from
3768 AFRIDI v. GONZALES
his having had sexual intercourse with a seventeen-year-old
girl he picked up on the side of the road who said she would
have sex with him for sixty dollars.
On April 15, 2003, a notice to appear was issued charging
Mr. Afridi as removable under 8 U.S.C. § 1227(a)(2)(A)(iii)
because he was convicted of an aggravated felony—the sex-
ual assault of a minor—after admission into the United States.
Mr. Afridi admitted all the allegations contained in the
Notice to Appear, except the allegation that he had been con-
victed of unlawful sexual intercourse with a minor. The Immi-
gration Judge (“IJ”) found that Mr. Afridi was removable, and
denied all forms of relief. He appealed this decision to the
BIA.
On November 22, 2004, the BIA affirmed the IJ’s order.
The BIA found that (1) the IJ properly found that Mr. Afridi
was removable for having committed an aggravated felony;
(2) Mr. Afridi’s conviction constituted a particularly serious
crime, rendering him ineligible for withholding of removal;
(3) the IJ was correct in its determination that Mr. Afridi’s
demonstration of unusual or outstanding equities did not com-
pel an exercise of discretion; and (4) the IJ properly found
that Mr. Afridi failed to demonstrate eligibility for protection
under the Convention Against Torture. Mr. Afridi now peti-
tions for review of the BIA’s decision.
II
A
Mr. Afridi first contends that the BIA improperly deter-
mined that his conviction for unlawful sexual intercourse with
a minor who is more than three years younger than the perpe-
trator constituted an aggravated felony. The questions of law
presented in this petition are reviewed de novo, with defer-
ence generally afforded to the BIA’s interpretation of the
AFRIDI v. GONZALES 3769
immigration laws “unless that interpretation is contrary to the
plain and sensible meaning of the statute.” Yeghiazaryan v.
Gonzales, 431 F.3d 678, 682 (9th Cir. 2005) (quoting
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004)).
[1] Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien who has
committed an aggravated felony after admission is removable.
The term “aggravated felony” is defined at 8 U.S.C.
§ 1101(a)(43)(A) as “murder, rape, or sexual abuse of a
minor.” Sexual abuse of a minor is not defined in the Immi-
gration and Nationality Act (“INA”).
When Congress placed “sexual abuse of a minor” in the list
of aggravated felonies, it did so without cross-referencing any
other federal statute. United States v. Baron-Medina, 187 F.3d
1144, 1146 (9th Cir. 1999); 8 U.S.C. § 1101(a)(43)(A).
Because Congress did not define “sexual abuse of a minor”
for the purposes of defining aggravated felony, courts must
interpret the term “by employing the ordinary, contemporary,
and common meaning of the words that Congress used.”
Baron-Medina, 187 F.3d at 1146 (quoting Zimmerman v. Ore-
gon Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir. 1999));
see also Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 (9th
Cir. 2003) (reaffirming that when the term “sexual abuse of
a minor” is at issue, Baron-Medina controls).
[2] In this case, the BIA, consistent with Baron-Medina,
employed the “ordinary, contemporary and common mean-
ing” of “sexual abuse of a minor.” Baron-Medina, 187 F.3d
at 1146. The BIA used the definition of the term set forth in
In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995 (BIA
1999), which defined “sexual abuse of a minor” as “the
employment, use, persuasion, inducement, enticement, or
coercion of a child to engage in, or assist another person to
engage in, sexually explicit conduct or the rape, molestation,
prostitution, or other form of sexual exploitation of children,
or incest with children.” Id. (quoting 18 U.S.C. § 3509(a)(8)).
3770 AFRIDI v. GONZALES
In arriving at that definition, the BIA in Rodriguez-
Rodriguez followed the rules of statutory construction. Id. at
994. The BIA looked at: (1) Congress’s intent to “expand the
definition of an aggravated felony and to provide a compre-
hensive statutory scheme to cover crimes against children” in
adding “sexual abuse of a minor” to the list of aggravated fel-
onies; (2) the definition of sexual abuse in 18 U.S.C.
§ 3509(a)(8), which the BIA believed best captured the broad
spectrum of behaviors that constitute sexual abuse of a minor
and to be consistent with the common meaning of the term;
and (3) Black’s Law Dictionary’s definition of the term:
“[i]llegal sex acts performed against a minor by a parent,
guardian, relative or acquaintance.” Id. at 994-96.
[3] The BIA’s definition was based on a permissible con-
struction of the statute. Consistent with our precedent, it relied
on authorities designed to guide it toward the common mean-
ing of the term. Because the BIA’s construction was permissi-
ble, we defer to it. See Yeghiazaryan, 431 F.3d at 682 (stating
that deference is afforded BIA’s interpretation of statutes).
[4] Notably, Black’s Law Dictionary defines “minor” with-
out reference to a specific age. Instead, minor is defined sim-
ply as “a person who has not yet reached full legal age.”
Black’s Law Dictionary (8th ed. 2004). “Legal age” is defined
the same as “age of majority,” which is age eighteen or when
a person attains full legal rights. Id. Therefore, the BIA’s
decision not to limit the definition of “minor” is also consis-
tent with the common meaning of the term.
Mr. Afridi argues that in interpreting the term “sexual
abuse of a minor,” courts must look to federal substantive
law. Specifically, he points to 18 U.S.C. § 2243, which
defines sexual abuse of a minor for purposes of federal crimi-
nal law. Under this section, sexual abuse of a minor includes
sexual acts with a person who has attained the age of twelve
years but has not yet attained the age of sixteen years. Mr.
Afridi contends that because his victim was seventeen, and
AFRIDI v. GONZALES 3771
thus, his crime would not have constituted “sexual abuse of
a minor” under federal criminal law, it should not be an
aggravated felony.
However, the term “aggravated felony” is not limited to
those crimes defined by federal law as sexual abuse of a
minor for purposes of determining removability. In fact, 8
U.S.C. § 1101(a)(43) provides that the term “aggravated felo-
ny” includes offenses “whether in violation of Federal or
State law.” In Baron-Medina, we expressly rejected the sug-
gestion that the federal sexual abuse laws limit the class of
law reached by the term “sexual abuse of a minor.” Baron-
Medina, 187 F.3d at 1146. Accordingly, we reject Mr.
Afridi’s argument.1
B
[5] We next consider whether Mr. Afridi’s offense fits the
definition of sexual abuse of a minor. A crime under a state
statute qualifies as “sexual abuse of a minor” if the full range
of conduct defined by the statute falls within the meaning of
the term. Baron-Medina, 187 F.3d at 1146 (citing Taylor v.
United States, 495 U.S. 575 (1990)).
[6] Section 261.5(c) of the California Penal Code provides
as follows:
Any person who engages in an act of unlawful sex-
ual intercourse with a minor who is more than three
1
In Valencia v. Gonzales, No. 03-72028, 2006 WL 522452 (9th Cir.
2006), we held that a violation of Cal. Penal Code § 261.5(c) does not cat-
egorically constitute a crime of violence under 8 U.S.C. § 1101(a)(43)(F).
Although in Valencia, this Court concluded that the petitioner was not
removable as an aggravated felon for having committed a crime of vio-
lence, it did not address, and was not asked to address, whether a violation
of Cal. Penal Code § 261.5(c) categorically constitutes sexual abuse of a
minor under 8 U.S.C. § 1101(a)(43)(A) and whether an alien who violates
§ 261.5 may be removed pursuant to that section.
3772 AFRIDI v. GONZALES
years younger than the perpetrator is guilty of either
a misdemeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison.
“Unlawful sexual intercourse” is defined by § 261.5(a) of the
California Penal Code as:
an act of sexual intercourse accomplished with a per-
son who is not the spouse of the perpetrator, if the
person is a minor. For purposes of this section, a
“minor” is a person under the age of 18 years and an
“adult” is a person who is at least 18 years of age.
A conviction under this statute meets the BIA’s interpretation
of “sexual abuse of a minor” as encompassing any offense
that involves “the employment, use, persuasion, inducement,
enticement, or coercion of a child to engage in . . . sexually
explicit conduct . . . .” In re Rodriguez-Rodriguez, 22 I. & N.
Dec. at 991, 995. Mr. Afridi had sexual intercourse with a
seventeen-year-old girl who was more than three years youn-
ger than he. Sexual intercourse clearly constitutes “sexually
explicit conduct,” and the seventeen-year-old victim in this
matter was a “minor” as that term is commonly defined. Fur-
ther, the BIA’s definition of “sexual abuse of a minor” is not
limited to victims of any certain age. Therefore, his offense
falls within that definition. Accordingly, the BIA properly
found that Petitioner was removable for having committed an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).2
2
Mr. Afridi also argues that his conviction should not constitute “sexual
abuse of a minor” because he was not required to register as a sex offender
and the offense was later reduced to a misdemeanor. Mr. Afridi cites no
legal support for these contentions. The law is to the contrary. See United
States v. Alvarez-Guitierrez, 394 F.3d 1241 (9th Cir. 2005) (holding that
a misdemeanor may qualify as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(A)); cf. United States v. Robles-Rodriguez, 281 F.3d 900,
903 (9th Cir. 2002) (explaining that for purposes of sentencing enhance-
ment, an offense classified by state law as a misdemeanor can still be an
“aggravated felony”); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th
Cir. 2001) (holding that expungement of a state conviction does not elimi-
nate immigration consequences of that conviction).
AFRIDI v. GONZALES 3773
III
[7] Mr. Afridi next argues that the BIA erred in denying
him withholding of removal. Under 8 U.S.C.
§ 1231(b)(3)(B)(ii), an alien who “having been convicted by
a final judgment of a particularly serious crime is a danger to
the community” is not eligible for withholding of removal.
The Attorney General has discretion to determine whether an
aggravated felony conviction resulting in a sentence of less
than five years is a particularly serious crime. Id. Mr. Afridi
contends that his offense does not constitute a particularly
serious crime and that the BIA employed an improper stan-
dard in making this determination.
The Government argues that we lack jurisdiction to deter-
mine whether the BIA properly concluded that Mr. Afridi’s
offense is a particularly serious crime. The Government
argues that 8 U.S.C. § 1252(a)(2)(B)(ii) divests appellate
courts of jurisdiction to review “a decision or action of the
Attorney General . . . the authority for which is . . . in the dis-
cretion of the Attorney General” and that whether a crime is
particularly serious is a discretionary determination. See 8
U.S.C. § 1231(b)(3)(B) (granting Attorney General discretion).3
3
8 U.S.C. § 1231(b)(3)(B) provides:
Subparagraph (A) [proving for withholding of removal] does not
apply to an alien deportable under section 1227(a)(4)(D) of this
title or if the Attorney General decides that . . . (ii) the alien, hav-
ing been convicted by a final judgment of a particularly serious
crime is a danger to the community of the United States . . . [f]or
purposes of clause (ii), an alien who has been convicted of an
aggravated felony (or felonies) for which the alien has been sen-
tenced to an aggregate term of imprisonment of at least 5 years
shall be considered to have committed a particularly serious
crime. The previous sentence shall not preclude the Attorney
General from determining that, notwithstanding the length of the
sentence imposed, an alien has been convicted of a particularly
serious crime.
3774 AFRIDI v. GONZALES
[8] The REAL ID Act of 2005 (“REAL ID Act”) provides
that “[n]othing in subparagraph (B) . . . which limits or elimi-
nates judicial review, shall be construed as precluding review
. . . of questions of law raised upon a petition for review.” 8
U.S.C. § 1252(a)(2)(D). The plain language of the REAL ID
Act grants jurisdiction to appellate courts to review questions
of law presented in petitions for review of final orders of
removal, even those pertaining to otherwise discretionary
determinations. See Cabrera-Alverez v. Gonzales, 423 F.3d
1006, 1009 (9th Cir. 2005) (explaining that, in the context of
appellate review of BIA’s discretionary decision to deny can-
cellation of removal, interpretation of immigration statutes is
a question of law that appellate courts have jurisdiction to
review pursuant to the REAL ID Act).
The Government argues that Unuakhaulu v. Gonzales, 416
F.3d 931 (9th Cir. 2005), which was decided after the effec-
tive date of the REAL ID Act, is controlling here. In that case,
we held that “when the Attorney General decides that the
alien’s offense was a ‘particularly serious crime,’ we lack
jurisdiction to review such a decision because it is discretion-
ary.” Id. at 935 (citing 8 U.S.C. § 1252(a)(2)(B)(ii); 8 U.S.C.
1231(b)(3)(B)). However, this matter is distinguishable from
Unuakhaulu. There, the petitioner did not argue that the
BIA’s interpretation of the term “particularly serious crime”
was erroneous, but instead sought review of his claim on the
merits. Unuakhaulu, 416 F.3d at 933. Therefore, the question
whether 8 U.S.C. § 1252(a)(2)(B) stripped this court of juris-
diction to review an Attorney General’s discretionary decision
and the REAL ID Act were not addressed.
[9] Here, however, Mr. Afridi argues that the BIA failed to
apply the proper legal standard in determining whether his
crime was particularly serious because the BIA misinterpreted
our legal precedent defining “particularly serious crime.” This
argument raises a question of law. This court has previously
treated the BIA’s interpretation of the term “particularly seri-
ous crime” as a question of law. Beltran-Zavala v. INS, 912
AFRIDI v. GONZALES 3775
F.2d 1027, 1029 (9th Cir. 1990) (superceded in part by stat-
ute). See also Ramirez-Ramos v. INS, 814 F.2d 1394, 1396
(9th Cir. 1987) (treating BIA’s interpretation of “particularly
serious crime” as a question of law); Mahini v. INS, 779 F.2d
1419 (9th Cir. 1985) (same). While we cannot reweigh evi-
dence to determine if the crime was indeed particularly seri-
ous, we can determine whether the BIA applied the correct
legal standard in making its determination. The Government’s
argument that “[t]o declare that the Court has no jurisdiction
over discretionary decisions in one breath, and then declare
that the Court retains jurisdiction over which ‘standards’ to
apply in making those discretionary decisions is self-
contradictory,” Supplemental Brief for Respondent at 5,
effectively reads § 1252(a)(2)(D) of the REAL ID Act out of
existence. It also fails to account for the distinction between
questions of statutory construction and the application of a
statute to the facts and circumstances of a particular case. See
Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005)
(explaining that REAL ID Act distinguishes between issues of
statutory construction and discretionary or factual questions).
[10] Because “particularly serious” is not statutorily
defined, the BIA developed in In re Frentescu, 18 I. & N.
Dec. 244 (BIA 1982) (superceded by statute in part), the stan-
dard that must be considered in determining whether a partic-
ularly serious crime has been committed. Id. at 247. In
Frentescu, the BIA explained that in most cases, determining
whether a crime is particularly serious requires a case-by-case
analysis, using “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.” Id. We have approved of
this formulation. Mahini, 779 F.2d at1421; Beltran-Zavala,
912 F.2d at 1031-32.
[11] Mr. Afridi argues that the BIA in this matter evaluated
“one fact and one fact only”: the length of time he was to be
on probation. The BIA opinion states:
3776 AFRIDI v. GONZALES
We reject [Mr. Afridi’s] argument that, because he
was only placed on formal probation and was
allowed to complete his sentence of 120 days in jail
on alternative sentencing, he does not meet the fac-
tors set out in Matter of Frentescu . . . for a “particu-
larly serious crime.” . . . [A] common sense view of
a sexual abuse law, in combination with the legal
determination that minors are generally incapable of
consent, suggests that whenever an older person
attempts to sexually touch a child, there is invariably
a substantial risk that physical force will be wielded
to ensure the child’s compliance. It is clear from the
record . . . that [Mr. Afridi] admitted to having sex-
ual intercourse with a minor, a serious crime that
poses a danger to the community. Furthermore,
although the respondent received only probation in
this matter, his sentence also includes a requirement
to keep his probation officer advised of his move-
ments for a significant period of time.
(citations omitted). The BIA considered two of the Frentescu
factors, the nature of the conviction and the sentence imposed,
when it concluded that the crime was for sexual abuse of a
minor and that Mr. Afridi had to keep his probation officer
advised of his movements. In determining that Mr. Afridi
posed a danger to the community, the BIA did not consider
the circumstances and underlying facts of the conviction.
Rather, the BIA concluded that as a general matter, crimes of
sexual abuse involve force and make an individual a danger
to the community. It did not determine, for example, whether
force was used or any other facts or circumstances relating to
the commission of the crime. In short, aside from the refer-
ence to the sentence Mr. Afridi received, there is nothing in
the BIA’s analysis regarding Mr. Afridi’s conviction for sex-
ual abuse of a minor that would separate it from an analysis
regarding any other person’s conviction for the same offense.
We must determine whether the BIA erred in failing to
apply each of the Frentescu factors. In determining whether
AFRIDI v. GONZALES 3777
the BIA’s interpretation of the term “particularly serious
crime” in this case is permissible, we must give deference to
the BIA’s interpretation of the term. Mahini, 779 F.2d at
1420.
In Mahini, we affirmed the BIA’s finding that the petition-
er’s conviction for distribution of heroin with intent to distrib-
ute was a particularly serious offense. Id. at 1421. In that case,
we explained that the BIA considered several of the factors
set out in Frentescu: the nature of the conviction, the type of
sentence imposed, and the circumstances and facts underlying
the conviction. Id. We concluded that the BIA did not err in
determining that the crime was particularly serious and that
the petitioner was a danger to the community. Id.
In Beltran-Zavala, in which we again approved of the
Frentescu interpretation of a particularly serious crime, we
stated that when determining whether a particularly serious
crime has been committed, “it is the conviction that is in
issue, not other acts that might render the alien dangerous to
the community.”4 Beltran-Zavala, 912 F.2d at 1031. We had
4
Beltran-Zavala and Frentescu have been superceded by statute to the
extent that those cases require a case-specific analysis for the “particularly
serious crime” determination for all aggravated felonies. See Urbina-
Maurico v. INS, 989 F.2d 185, 1087-88 (9th Cir. 1993) (stating that
Beltran-Zavala and Frentescu were superceded by statute). After Beltran-
Zavala and Frentescu were decided, the INA was amended to provide that
all aggravated felonies constituted particularly serious crimes. 8 U.S.C.
§ 1253(h) (1990) (rewritten in 1996). However, in 1996, Congress specifi-
cally provided that for purposes of withholding of removal, the Attorney
General has discretion to determine whether aggravated felony convictions
resulting in sentences of less than five years are particularly serious
crimes. 8 U.S.C. § 1231(b)(3)(B) (2005). Thus, aggravated felonies result-
ing in sentences fewer than five years are not per se particularly serious
and still require a case-by-case analysis, as laid out in Frentescu. See, e.g.,
Steinhouse v. Ashcroft, 247 F. Supp. 2d. 201, 203-04, 208-09 (D. Conn.
2003); (requiring Frentescu analysis to determine whether convictions for
racketeering and selling drug samples, which resulted in sentence of three
years imprisonment, constituted particularly serious crimes); In Re L-S-,
22 I. & N. Dec. 645, 656 (1999) (employing Frentescu analysis to deter-
mine that petitioner’s conviction for bringing an illegal alien into the
United States, for which he spent three and one-half months in jail, did not
constitute a particularly serious crime).
3778 AFRIDI v. GONZALES
held previously that “[t]he participial phrase, ‘having been
convicted by a final judgment of particularly serious crime,’
modifies the word ‘alien’ and thus limits those aliens who
may be determined to constitute a danger to the community
to those who have been finally convicted of serious crimes.”
Id. (quoting Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th
Cir. 1987)). Further, we explained that the language of 8
U.S.C. § 1253(h)(2)(B), as interpreted in Frentescu, commits
the BIA to an analysis of the characteristics and circum-
stances of the aliens’ conviction. Id. at 1032. Therefore, in
Beltran-Zavala, we held that the petitioner was entitled to
have the BIA examine the type of sentence and underlying
facts of his conviction for sale of marijuana to determine
whether he had committed a particularly serious crime. Id.We stated, “the BIA did not examine the type of sentence or
the underlying facts. It simply leapt directly from the fact of
conviction to the determination that it could not withhold
deportation.” Id.[12] This matter is distinguishable from Mahini and similar
to Beltran-Zavala. In Mahini, although the BIA only applied
“several” of the Frentescu factors, it did look to the circum-
stances of the petitioner’s conviction to make a case-by case
determination. Mahini, 779 F.2d at 1421. In the present case,
the BIA referred to the Frentescu factors, but in evaluating
Mr. Afridi’s crime, it failed to engage in a case-specific analy-
sis. Instead, it generalized to conclude that the type of crime
committed by Mr. Afridi was particularly serious. Mr. Afridi,
like the petitioner in Beltran-Zavala, is entitled to have the
BIA examine the underlying facts and circumstances of his
conviction.
This Court has never specifically addressed how extensive
a Frentescu analysis is sufficient, but other courts have. For
instance, in Hamana v. INS, 78 F.3d 233 (6th Cir. 1996), the
Sixth Circuit affirmed the BIA’s finding that Hamana’s con-
viction for a firearms offense was particularly serious. Id. at
240. In that case, the court said:
AFRIDI v. GONZALES 3779
The BIA therefore has the prerogative to declare a
crime particularly serious without examining each
and every Frentescu factor. Although the Board
might have engaged in a more fact-specific analysis,
Chevron directs us to defer to the BIA’s interpreta-
tion . . . . The Board’s decision in this case should
be accorded such deference.
Id. The court said that some crimes are “facially particularly
serious” and affirmed the BIA’s finding. Id.In Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001), however,
the Fourth Circuit held that where the BIA failed to consider
the “most important” Frentescu factor, “whether the type and
circumstances of the crime indicate that the alien will be a
danger to the community,” no true case-by-case determination
had been made. Id. at 329-30. Because the BIA failed to
engage in a case-specific analysis, the court held that the
BIA’s interpretation of “particularly serious” was arbitrary
and capricious. Id.; see also Steinhouse, 247 F. Supp. 2d. at
208-09 (holding that failure to consider whether circum-
stances of an alien’s crime indicated she would be a danger
to the community in determining that she was ineligible for
withholding was arbitrary and capricious).
[13] In this case, as in Yousefi, the BIA failed to engage in
a case-by-case analysis. Nor is there any argument, as in
Hamana, that Mr. Afridi’s crime was “facially particularly
serious.” We conclude that the BIA acted arbitrarily and
capriciously in failing in its duty to consider the facts and cir-
cumstances of Mr. Afridi’s conviction. Accordingly, we must
grant the petition in part and remand to the BIA so that it can
consider the facts and circumstances of Mr. Afridi’s crime in
determining whether he committed a particularly serious
crime. See INS v. Ventura, 537 U.S. 12, 16 (2002) (holding
that when a matter has been entrusted to the agency to deter-
mine, remand is appropriate).
3780 AFRIDI v. GONZALES
IV
[14] Mr. Afridi also contends that the BIA employed an
improper legal standard in determining that he did not qualify
for relief under Convention Against Torture. An applicant
qualifies for protection under Convention Against Torture if
he can show that if removed to his native country, it is
more likely than not that he would be tortured by public
officials, or by private individuals with the government’s
consent or acquiescence. 8 C.F.R. § 208.16(c)(2); 8 C.F.R.
§ 208.18(a)(1). Acquiescence is not limited to “actual knowl-
edge, or willful acceptance;” the “willful blindness” of gov-
ernment officials is enough. Zheng v. Ashcroft, 332 F.3d
1186, 1194-95 (9th Cir. 2003).
[15] Mr. Afridi argues that the proper standard was not
applied to the facts of his case. Here, the BIA relied on the
definition of “acquiesce” set forth in Zheng. Id. In applying
this standard, the BIA concluded:
Although [Mr. Afridi] alleges he would be tortured
if he returned to Afghanistan, we are unable to iden-
tify any particular factors in the record . . . to allow
us to conclude that it is more likely than not that the
[he] would be tortured by the Afghan government or
that it would acquiesce to his torture if he returns to
his country.
The BIA applied the correct legal standard in determining that
Mr. Afridi is not eligible for relief under the Convention
Against Torture.
V
Finally, Mr. Afridi argues that the denial of relief violated
his due process rights. Mr. Afridi cites no legal authority for
this argument. He asserts that the BIA denied him relief with-
out “due consideration.” However, the BIA did address each
AFRIDI v. GONZALES 3781
claim raised by Mr. Afridi in his appeal. He also contends that
in determining that he was ineligible for discretionary relief,
the BIA failed to consider his rehabilitation. The record
shows, however, that the BIA did consider his rehabilitation.
It concluded that in light of his other convictions, Mr. Afridi’s
rehabilitation was not enough to justify allowing him to
remain in the United States.
CONCLUSION
We DENY Mr. Afridi’s petition for review of the BIA’s
finding that he is removable for having committed an aggra-
vated felony.
We GRANT Mr. Afridi’s petition for review of the BIA’s
determination that he committed a particularly serious
offense. We REMAND with instructions that the agency
engage in a case-specific analysis in determining whether Mr.
Afridi’s offense is a particularly serious crime, rendering him
ineligible for withholding of removal.
We DENY Mr. Afridi’s petition for review of the BIA’s
denial of his claim for relief under the Convention Against
Torture. We DENY Mr. Afridi’s petition for review insofar as
it alleges that the BIA violated his due process rights by fail-
ing to exercise due consideration.
The petition for review is GRANTED in Part, DENIED
in Part and REMANDED With Instructions.