Delgado v. Holder , 563 F.3d 863 ( 2009 )

ORDER

Delgado’s petition for panel rehearing is GRANTED. This court’s opinion of October 8, 2008, reported at 546 F.3d 1017, and the dissenting opinion thereto, are hereby WITHDRAWN. A new opinion and new concurring and dissenting opinion are filed contemporaneously with this order. Delgado’s petition for en banc rehearing remains pending with regard to all issues except his asylum claim, which is moot. Further petitions for panel or en banc rehearing may be filed with regard to the new majority opinion in accordance with Fed. R.App. P. 35 & 40, and 9th Cir. R. 40-1.

OPINION

CANBY, Circuit Judge:

Hernán Ismael Delgado petitions for review of a decision of the Board of Immigration Appeals (“BIA”) ordering him removed to his native El Salvador. The BIA denied Delgado’s applications for asylum, withholding of removal, and withholding under the Convention Against Torture (“CAT withholding”), finding that Delgado’s three prior offenses of driving under the influence (“DUI”), which were not aggravated felonies, constituted “particularly serious crimes” that made him ineligible for those forms of relief.¹ The BIA also found Delgado ineligible for deferral of removal under the Convention Against Torture (“CAT deferral”) because he failed to demonstrate the requisite likelihood of future torture.

We grant in part and deny in part Delgado’s petition for review. We defer to the BIA’s view that, for purposes of withholding of removal, the applicable statute permits the Attorney General to decide by adjudication that an alien’s individual crime is “particularly serious” even though that crime is not classified as an aggravated felony. We also conclude that, for purposes of asylum, the Attorney General may determine by adjudication that a crime is “particularly serious” without first so classifying it by regulation.

We further hold that we are without jurisdiction to review the merits of that “particularly serious crime” determination for purposes of withholding of removal, but conclude that we have jurisdiction to review the determination for purposes of asylum. We conclude that Delgado’s DUI convictions do not qualify as “particularly serious” crimes, and we therefore remand Delgado’s asylum application to the BIA for further proceedings.

Finally, we hold that substantial evidence supports the decision of the BIA that Delgado failed to meet his burden of proving that he is more likely than not to be tortured if returned to El Salvador.

Background

Delgado, a native and citizen of El Salvador, entered the United States on a non-immigrant visitor visa over twenty years ago. In July 2001, the Immigration and Naturalization Service (“INS”)² initiated removal proceedings against him because he had overstayed his visa. Delgado conceded removability but sought asylum, withholding of removal, and CAT withholding and deferral.³ The Immigration Judge (“IJ”) denied Delgado’s request for CAT deferral, finding that Delgado had failed to show that he was more likely than not to be tortured if removed to El Salvador. The IJ also found that each of Delgado’s three prior felony DUI convictions constituted “particularly serious crimes” that barred him from eligibility for asylum under 8 U.S.C. § 1158(b)(2)(A)(ii), withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii), and CAT withholding under 8 C.F.R. § 1208.16(d)(2). The BIA affirmed the decision of the IJ in an unpublished per curiam decision signed by one member, and this appeal followed.

Discussion

The BIA did not specify whether it reviewed de novo the IJ’s decision, but stated that it agreed with the IJ on the basis of “the record before [it].” The BIA’s simple statement of a conclusion, without analysis, suggests that it relied significantly on the IJ’s decision. In such situations, we review the decision of the BIA and look to the IJ’s oral decision “as a guide to what lay behind the BIA’s conclusion.” See Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000).

I. The “particularly serious crime” bar

The ultimate issue raised by Delgado is whether the BIA erred in deciding that his DUI convictions constituted “particularly serious crimes” that made him ineligible for withholding of removal and asylum. A major threshold question is whether the applicable statutes permit the agency to determine Delgado’s offenses to be “particularly serious” by individual adjudication not limited by certain statutory or regulatory requirements. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review this question of law. Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006).

Although the issue of scope of the Attorney General’s authority (and that of the BIA as his delegate) to determine that an alien’s crime is “particularly serious” arises with regard to both withholding of removal and asylum, the statutory context differs for each form of relief and raises distinctive legal subissues. We therefore treat the two forms of relief separately.

A. Withholding of Removal

An alien is ineligible for withholding of removal if, among other things, “the Attorney General decides that ... the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States.”⁴ 8 U.S.C. § 1231(b)(3)(B). For the purposes of this provision,

an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced 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 sentence imposed, an alien has been convicted of a particularly serious crime.

Id. The question that naturally arises from this plain text is whether the last sentence is meant to limit the Attorney General to the universe of aggravated felonies described in the preceding sentence or, conversely, whether the last sentence simply preserves the Attorney General’s authority to determine a crime to be particularly serious regardless of the penalty or its designation or non-designation as an aggravated felony.

At the time the present appeal was argued, the BIA had not addressed this issue in a precedential opinion, in this case or any other. An unpublished decision by a single BIA member is not entitled by itself to the deference prescribed by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-13, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th Cir.2006). Recently, however, a three-member panel of the BIA issued an extensive published opinion holding that § 1231(b)(3)(B) permits the Attorney General to decide by ease-by-case adjudication that individual crimes are “particularly serious” even though they are not aggravated felonies. Matter of N-A-M-, 24 I. & N. Dec. 336, 338-39 (BIA 2007). Such a precedential opinion is entitled to Chevron deference. See Garcia-Quintero, 455 F.3d at 1012. For reasons that we now set forth, we conclude that the BIA’s interpretation of § 1231(b)(3)(B) is reasonable, and we accordingly defer to it.⁵

Two other circuits, which addressed the issue before the BIA weighed in with a precedential opinion, reached opposite results. The Third Circuit, applying a textual and structural approach, concluded that an offense “must be an aggravated felony to be ‘particularly serious.’ ” Alaka v. Attorney General of the United States, 456 F.3d 88, 104-05 (3d Cir.2006). The court reasoned that the sentence allowing the Attorney General to determine that a crime is particularly serious “notwithstanding the length of sentence imposed,” 8 U.S.C. § 1231(b)(3)(B), “explicitly refers back to the ‘previous sentence,’ and accordingly implies that [the Attorney General’s authority] is limited to aggravated felonies.” Id. The Seventh Circuit disagreed, concluding that “the absence of a ... provision for nonaggravated-felony crimes does not imply that only aggravated felonies can qualify as ‘particularly serious’ crimes.” Ali v. Achim, 468 F.3d 462, 470 (7th Cir.2006), cert. dismissed, — U.S. -, 128 S.Ct. 828, 169 L.Ed.2d 624 (2007).

The BIA found persuasive the Seventh Circuit’s view that the designation of certain aggravated felonies as per se “particularly serious” does not preclude the Attorney General from deciding, on a case-by-case basis, that other, nonaggravated felony crimes are also “particularly serious.” The BIA’s adoption of this position was reasonable. The statute does not limit the definition of “particularly serious” crimes to aggravated felonies. Nor does it expressly require the Attorney General, when considering whether a crime that is not categorically barred is “particularly serious,” to consider only aggravated felonies where the sentence imposed was less than five years.

The legislative history of the particularly serious crime bar, referred to by the BIA in N-A-M-, 24 I. & N. Dec. at 839 340, supports this interpretation. In 1980, § 243(h) of the Immigration and Nationality Act was amended to deny withholding to an individual who “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” Pub L. No. 96-212, § 202, 94 Stat. 102 (1980). Under this provision, the BIA determined on a case-by-case basis which crimes were particularly serious, applying the balancing test of Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982).⁶ This test did not take into account whether the crime in issue had been statutorily defined as an “aggravated felony.” In time, the BIA denominated some crimes as inherently particularly serious, so that individual determinations with regard to those crimes did not have to be undertaken. See, e.g., Matter of Garcia-Garrocho, 19 I. & N. Dec. 423, 425 (BIA 1986).

The statutory provision barring those convicted of “particularly serious” crimes from eligibility for withholding of removal then was amended three times. The Immigration Act of 1990 (the “1990 Act”) added the following language to § 243(h): “an alien who has been convicted of an aggravated felony shall be considered to have committed a particularly serious crime.” Pub.L. No. 101-649, 104 Stat. 4978, 5053. Nothing in the text or history of the 1990 Act suggests that Congress intended, by making aggravated felonies per se “particularly serious crimes,” to divest the Attorney General of his authority to determine, on a case-by-case basis, that other crimes were “particularly serious,” depending on the circumstances of their commission, among other things. And, notwithstanding the 1990 Act, the agency understood that it could adjudicate a crime to be “particularly serious” on a ease-by-case basis. See Ahmetovic v. INS, 62 F.3d 48, 52 (2d Cir.1995) (agreeing with BIA’s conclusion that a crime need not be an aggravated felony to be adjudicated “particularly serious”); Matter of B-, 20 I. & N. Dec. 427, 430-31 (BIA 1991) (applying Frentescu factors under the 1990 Act to determine that the alien had been convicted of a particularly serious crime).⁷

Congress relaxed the per se category created by the 1990 Act in 1996 with the passage of section 413(f) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1269 (1996) (“AEDPA”). The AEDPA amended § 243(h) to allow the Attorney General, “in [his] discretion,” to override the categorical bar designating all aggravated felonies “particularly serious” when “necessary to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees.” Id.⁸ The categorical bar was again relaxed later that year with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-602 (“IIRI-RA”). IIRIRA enacted the provision at issue here, which limits application of the categorical bar to aggravated felons sentenced to 5 years’ or more imprisonment. Id.

We recognize that one of the aims of Congress in enacting the post-1990 statutory amendments was probably to avoid sweeping minor crimes into the categorical aggravated felony bar. But nothing in the legislative history indicates that Congress intended, by creating a categorical bar and by later relaxing that categorical bar, to eliminate the Attorney General’s pre-existing discretion to determine that, under the circumstances presented by an individual case, a crime was “particularly serious,” whether or not the crime was an aggravated felony. We therefore find the BIA’s interpretation of the statute reasonable, and conclude that the BIA was entitled to determine, by adjudication, that Delgado’s DUI convictions were particularly serious crimes that barred him from eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3)(B) and CAT withholding under 8 C.F.R. § 1208.16(d)(2).

B. Asylum

We now turn to whether the BIA was authorized to determine that Delgado’s crimes were “particularly serious” for the purposes of his asylum application.⁹ Just as in the context of withholding, the relevant statute provides that an alien is ineligible for asylum if the Attorney General determines that “the alien, having been convicted of a particularly serious crime, constitutes a danger to the community.” 8 U.S.C. § 1158(b)(2)(A)(ii). For the purposes of this provision, “an alien who has been convicted by a final judgment of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” 8 U.S.C. § 1158(b)(2)(B)(i). In addition, “[t]he Attorney General may designate by regulation offenses that will be considered to be a [particularly serious] crime.... ” 8 U.S.C. § 1158(b)(2)(B)(ii).

There seems little question that this last provision permits the Attorney General to make particular crimes categorically “particularly serious” even though they are not aggravated felonies. The provision would be wholly redundant if the Attorney General were confined to making only aggravated felonies “particularly serious” crimes by regulation. The different question posed by this asylum statute is whether the Attorney General can determine by adjudication that an individual alien’s crime was “particularly serious,” or whether he must first by regulation provide that the particular crime is to be so characterized.

Our discussion of the withholding statute is instructive. Just as with withholding, the agency initially made the determination whether an alien’s crime was particularly serious strictly by adjudication, applying the Frentescu factors. See Frentescu, 18 I. & N. Dec. at 247. Congress intervened in the 1990 Act only to ensure that certain crimes (aggravated felonies) would be categorically determined to be “particularly serious,” regardless of the circumstances of their commission.¹⁰ Congress then added its permission for the Attorney General in asylum cases to “designate by regulation offenses that will be considered to be [particularly serious crimes].” Id. It is most reasonable to interpret this provision as similarly concerned with the categorical designation of additional crimes as “particularly serious.” Indeed, it would be difficult to designate by regulation crimes that “will be considered” to be particularly serious unless the designation is categorical for those crimes. The provision simply does not speak to the ability of the Attorney General to determine in an individual case that the circumstances of an alien’s commission of a crime made that crime particularly serious, even though the same offense committed by other persons in other circumstances would not necessarily be particularly serious. The statute does not require the Attorney General to anticipate his adjudication by a regulation covering each particular crime. See Ali, 468 F.3d at 469.

We therefore conclude that the BIA did not err in proceeding to determine by adjudication, in the absence of regulation, whether Delgado had committed a “particularly serious” crime that rendered him ineligible for asylum.

C. The merits of the BIA’s decision

1. Withholding of Removal

The next question for decision is whether we may review the merits of the BIA’s determination that Delgado’s DUI convictions were “particularly serious crimes.” With regard to withholding of removal, we conclude that we may not.¹¹

We are statutorily precluded from reviewing decisions of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General ..., other than the granting of relief under section 1158(a) of this title [relating to asylum].” 8 U.S.C. § 1252(a)(2)(B)(ii). In Matsuk v. INS, 247 F.3d 999 (9th Cir.2001), we were presented with a determination by the BIA that an aggravated felony resulting in a sentence of less than five years imprisonment was a “particularly serious” crime. We held that the BIA’s ruling was an unreviewable discretionary decision within the meaning of the statutory bar. See id. at 1002. In later explaining this ruling, we stated:

[T]he decision at issue in Matsuk— whether to classify an alien’s past offense as a ‘particularly serious crime’ under § 1231(b)(3)(B) — is a decision that is entirely lacking in statutory guidelines. Under the language of the statute, this decision is left entirely to the discretion of the Attorney General, with no governing statutory standards.

Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th Cir.2003). The language that Matsuk and Spencer found to “specify” the authority to be discretionary in the Attorney General, within the meaning of § 1252(a)(2)(B)(ii), was the statutory provision denying withholding “if the Attorney General decides that ... an alien has been convicted of a particularly serious crime.”¹² 8 U.S.C. § 1231(b)(3)(B); see also Spencer, 345 F.3d at 689-90.

After the decisions in Matsuk and Spencer, Congress enacted the REAL ID Act of 2005, which provides that nothing in the provision limiting review of the Attorney General’s discretionary decisions “shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Our decisions subsequent to the REAL ID Act make clear, however, that the ultimate determination by the Attorney General that a crime is “particularly serious” for purposes of withholding of removal is still an unreviewable discretionary decision. We so stated in Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.2005). Then, in Afridi v. Gonzales, 442 F.3d 1212 (9th Cir.2006), we were presented with a case where the IJ had denied withholding of removal on the ground of conviction of a “particularly serious crime,” but had failed to engage in a case-specific application of the Frentescu factors. Id. at 1219. We determined that this failure raised a point of law, and we remanded for further proceedings. Id. at 1219-21. In doing so, however, we recognized the limits of the question of law that we were deciding: “While 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.” Id. at 1218.¹³ A fair reading of Afridi is that the ultimate determination of the “particularly serious” nature of a crime for purposes of withholding of removal is not subject to our review.

Most recently, we decided in Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007), that in preserving our authority to review questions of law, the REAL ID Act permitted us to review mixed questions of law and fact. Id. at 654. Ramadan made clear, however, that the REAL ID Act did not “restore [our] jurisdiction over discretionary determinations.” Id. And it gave as an example of a statutorily-specified discretionary determination the “Attorney General’s determination ... that an aggravated felony is a particularly serious crime,” citing Matsuk. Id. at 655. It seems clear under our precedent, therefore, that the authority to review questions of law or mixed questions of law and fact under the REAL ID Act did not include a power to review a determination of the Attorney General that a crime was “particularly serious” for purposes of withholding of removal.

2. Asylum

Our circuit precedent is quite different, however, with regard to eligibility for asylum. In Morales v. Gonzales, 478 F.3d 972 (9th Cir.2007), the petitioner had been denied both asylum and withholding of removal on the ground that she had been convicted of a particularly serious crime. We noted that § 1252(a)(2)(B)(ii) stripped us of jurisdiction to review any action of the Attorney General “specified” to be in his discretion, “other than the granting of relief under section 1158(a)....” Section 1158(a) governs the application of aliens for asylum. We therefore held that “[t]he denial of asylum is reviewable because it is specifically exempted from § 1252(a)(2)(B)(ii)’s jurisdiction-stripping provisions.” Id. at 980. The only asylum issue presented for review in Morales was the “particularly serious crime” bar. It is therefore clear that Morales held that we have jurisdiction to review that issue, and that ruling governs our present case.¹⁴ We proceed, therefore, to examine whether the IJ erred in determining that Delgado’s DUI convictions were “particularly serious crimes.”

As we have already explained, our precedent establishes the case-by-case determination of a “particularly serious crime” to be an exercise of discretion. We accordingly review that decision for an abuse of discretion. See Surita v. INS, 95 F.3d 814, 819 (9th Cir.1996) (holding that a discretionary denial of asylum is reviewed for abuse of discretion).

As the dissenting opinion points out, the origin of the “particularly serious crime” category was the Convention Relating to the Status of Refugees, July 28, 1951, 10 U.S.T. 6259, 189 U.N.T.S. 150. The Convention prohibits returning an alien to a country where his “life or freedom would be threatened” on account of specified grounds, with an exception for aliens convicted of “a particularly serious crime.” Convention, art. 33. This requirement and exception were written into the Immigration and Nationality Act by the Refugee Act of 1980. See INS v. Cardoza-Fonseca, 480 U.S. 421, 429, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Although the Convention did not define “particularly serious crime,” it did create another exception for aliens who had committed a “serious nonpolitical crime” outside of the country of refuge. Convention, art. l.F.b. As the BIA has stated, “it should be clear that a ‘particularly serious crime is not the equivalent of a ‘serious nonpolitical crime.’ Further, a ‘particularly serious crime’ is more serious than a ‘serious nonpolitical crime’.... ” Frentescu, 18 I. & N. Dec. at 247. With reference to a “serious nonpolitical crime,” the Handbook on Procedures and Criteria for Determining Refugee Status states that “a ‘serious’ crime must be a capital crime or a very grave punishable act.” Handbook, ¶ 155, HCR/ IP/4/ENG/REV.1 (Jan.1992). Frentescu went on to state that determinations of particularly serious crimes would be made on a case-by-case basis, with reference to “such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, [the] danger to the community.” Frentescu, 18 I. & N. Dec. at 247.

We accord Chevron deference to the BIA’s discussion in the precedential decision of Frentescu, but that discussion does not in itself determine whether DUI is a particularly serious crime. The decision of a single IJ, not relying on a precedential ruling, that DUI is a particularly serious crime does not command Chevron deference. See Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir.2009) (en banc).

When the Frentescu factors are applied in the context of the international origins of the “particularly serious crime” exception, we conclude that it was an abuse of discretion to hold that Delgado’s convictions are particularly serious crimes. Surely they do not exceed the “capital or grave” standard of “serious” nonpolitical crimes, and Frentescu indicates that particularly serious crimes should exceed that standard. Delgado’s sentences for the three offenses were incarceration for 12 months, 16 months, and 24 months — substantial but by no means long sentences under the standards of recent decades for serious crimes. It is true that driving under the influence can be dangerous, and at least one of Delgado’s episodes was. Yet there was no intent to injure. The crime itself is careless or even reckless, but requires no intent and is “most nearly comparable to[ ] crimes that impose strict liability.” Begay v. United States, — U.S. -, -, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008). Thus, for other purposes DUI has been held not to be a violent felony. Id.; Leocal v. Ashcroft, 543 U.S. 1, 4, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). It is certainly a reprehensible crime, especially when repeated as it has been by Delgado, but Delgado’s offenses had no distinguishing characteristics that elevate them to the high levels inherent in the origins of the “particularly serious crime” exception. It violates the principles underlying the Convention and the Refugee Act to hold Delgado’s DUI crimes to be “particularly serious,” so as to deny him eligibility for relief from repatriation to a country even if he is able to demonstrate a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42).¹⁵

We conclude, therefore, that the IJ abused his discretion in ruling that Delgado’s DUI convictions were particularly serious crimes that rendered him ineligible for asylum. Because of that ruling of ineligibility, neither the IJ nor the BIA addressed whether Delgado met the substantive requirements for asylum and should be granted relief. We therefore grant Delgado’s petition for review with regard to his asylum claim, and remand that matter to the BIA for further appropriate proceedings.

II. Relief under the Convention Against Torture

We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA’s denial of Delgado’s claim for CAT deferral, see Morales, 478 F.3d at 980-81, and we review that decision for substantial evidence. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.2004). In order to be eligible for CAT deferral, Delgado must prove that he is more likely than not to be tortured upon his return to El Salvador. Id.; 8 C.F.R. § 1208.17(a).

As the IJ noted, Delgado presented evidence that his mother, and probably his father, were victims of the rampant human rights violations that took place in El Salvador in the late 1970s and early 1980s. However, Delgado has not provided sufficient evidence that he currently risks being harmed if he returns to his native country. Country reports indicate that conditions in El Salvador have improved significantly since Delgado left the country, and that there is no longer evidence of politically motivated violence, killings, or disappearances in El Salvador. We therefore conclude that the BIA’s decision that Delgado is not entitled to CAT deferral is supported by substantial evidence.

Conclusion

The petition for review is granted with regard to Delgado’s asylum claim, and that matter is remanded to the BIA for further appropriate proceedings. With regard to all his other claims, Delgado’s petition is denied.

PETITION GRANTED in part, DENIED in part, and REMANDED.

1 . All three convictions were for felony DUI. One involved an injury accident, and two resulted in prison terms of less than five years.

2 . Effective March 1, 2003, the functions of the INS were transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). This transfer has no effect on the review of Delgado's case.

3 . Delgado also sought cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act ("NACARA”), and suspension of deportation, but he has not sought review of the denial of those forms of relief.

4 . We have upheld the BIA’s interpretation of this statute to require "only the factual finding of conviction of a particularly serious crime to support the determination of danger to the community,” without the necessity of a separate finding of such danger. Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir.1987). We therefore confine our analysis here to the question of "particularly serious” crimes, and omit any separate consideration of danger to the community.

5 . In Morales v. Gonzales, we assumed without analysis that the Attorney General could deem a non-aggravated felony "particularly serious.” 478 F.3d 972, 980-81, 983 (9th Cir.2007). There, we remanded to the BIA for a redetermination, based on the correct legal standard, of whether Morales’s non-aggravated felony constituted a "particularly serious crime.” Id. at 983. Because the statutory interpretation of § 1231(b)(3)(B) is squarely contested here, we address the issue in depth for the first time.

6 . The BIA looked "to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.” Frentescu, 18 I. & N. Dec. at 247.

7 . The long history of case-by-case determination of "particularly serious” crimes bears more weight, in our view, than the canons of construction relied upon by the dissent. Canons of statutory construction "are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent.” Scheidler v, Nat'l Org. for Women, 547 U.S. 9, 23, 126 S.Ct. 1264, 164 L.Ed.2d 10 (2006). See also Chickasaw Nation v. United States, 534 U.S. 84, 93-95, 122 S.Ct 528, 151 L.Ed.2d 474 (2001).

8 . Although the legislative history is sparse, there seems to be no doubt that one purpose of this enactment was to prevent violations of the Refugee Convention's non-refoulement provision that might occur because of a rigid application of the aggravated felony bar. See Matter of Q-T-M-T-, 21 I. & N. Dec. 639, 648 n. 4 (BIA 1996). Such treaty violations were becoming more likely because, at the time, the list of aggravated felonies was expanding, and a categorical bar could have included "fairly minor offenses” in its sweep. Id. (internal quotations and citation omitted); see also Choeum v. INS, 129 F.3d 29, 42-44 (1st Cir.1997) (accepting INS’s argument that 1996 amendments were fueled by expansion of the term "aggravated felony”).

9 . The BIA's precedential decision in N-A-M-did not address § 1158(b)(2)(B)(I) because the asylum application in that case was untimely. We therefore have no precedential decision of the BIA to be accorded Chevron deference on the precise asylum question presented here.

10 . As we described in the previous section, Congress relaxed its categorical bar somewhat with regard to withholding of removal. It did not do so with regard to asylum.

11 . Other circuits have split on this issue. The Seventh Circuit holds that it is without jurisdiction to review the merits of the determination of an alien's crime to have been "particularly serious,” for purposes of both asylum and withholding of removal, see Ali, 468 F.3d at 470, but the Third Circuit took a contrary position in a case involving withholding of removal, Alaka, 456 F.3d at 94-101, as did the Second Circuit with regard to both asylum and withholding of removal, Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir.2008).

12 . Judge Berzon's concurring and dissenting opinion here offers trenchant and, to us, persuasive criticisms of this ruling of Matsuk. As her opinion recognizes, however, we are bound as a three-judge panel to follow Matsuk.

13 . Delgado contends that the IJ committed legal error by applying the bar of “particularly serious crime” retroactively to his 1992 DUI conviction. Delgado did not present this argument to the BIA, however, and we therefore may not consider it. Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001). We note as well that the regulation barring relief on the ground of "particularly serious crimes” was first promulgated in 1990, well before Delgado pleaded guilty to his first DUI charge. See Kankamalage v. INS, 335 F.3d 858, 860 (9th Cir.2003). Later statutory bars to the same effect preceded Delgado's last two DUI convictions. See id. at 861 n. 1.

14 . Morales also recognized that we had no jurisdiction to review the Attorney General's discretionary decision finding DUI convictions to be particularly serious crimes for purposes of withholding of removal, as indicated by our decision in Matsuk and its progeny, discussed earlier in this opinion. Morales remanded the denial of withholding, however, because it held that the IJ had committed legal error in the parts of the record that it considered in determining the "particularly serious crime” issue. In so ruling, Morales deferred to BIA determinations of the records that may be considered. The BIA subsequently modified its stance in a precedential decision, Matter of N-A-M-, 24 I. & N. Dec. at 342. We have recently deferred to that ruling, permitting the BIA to consider all reliable information in making a particularly serious crime determination. Anaya-Ortiz v. Mukasey, 553 F.3d 1266, 1275-76 (9th Cir.2009).

15 . In Marmolejo-Campos, 558 F.3d at 915, we deferred to the BIA's decision that DUI after revocation of license was a crime of moral turpitude, but that decision dealt with a ground of removal, not a disqualification from asylum. The framework of the Convention and Refugee Act therefore did not enter the calculation.