Javier Perez-Palafox v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER PEREZ-PALAFOX, No. 11-71201
Petitioner,
Agency No.
v. A092-291-793
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 8, 2013—Pasadena, California
Filed March 11, 2014
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and Alvin K. Hellerstein, Senior District
Judge.*
Opinion by Judge Rawlinson
*
The Honorable Alvin K. Hellerstein, Senior United States District
Judge for the Southern District of New York, sitting by designation.
2 PEREZ-PALAFOX V. HOLDER
SUMMARY**
Immigration
The panel denied Javier Perez-Palafox’s petition for
review of the Board of Immigration Appeals’ decision
vacating an Immigration Judge’s grant of withholding of
removal based on a finding that petitioner’s conviction
constituted a particularly serious crime.
The panel held that it had jurisdiction over the issue of
law raised by Perez-Palafox—whether the BIA engaged in
improper factfinding in determining that he committed a
particularly serious crime. The panel held that the BIA did
not engage in impermissible factfinding, where it specifically
stated that it reviewed the IJ’s factual findings for clear error,
applied the Matter of Frentescu, 18 I. & N. Dec. 244 (BIA
1982), factors to the facts found by the IJ, and did not add any
facts to those found by the IJ or ignore any facts found by the
IJ.
COUNSEL
Curtis F. Pierce, Los Angeles, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Linda
S. Wernery, Assistant Director, William C. Minick (argued),
Attorney, Office of Immigration Litigation, United States
Department of Justice, Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PEREZ-PALAFOX V. HOLDER 3
OPINION
RAWLINSON, Circuit Judge:
Petitioner Javier Perez-Palafox (Perez-Palafox), a citizen
of Mexico and a lawful permanent resident, petitions for
review of the decision of the Board of Immigration of
Appeals (BIA) vacating the withholding of removal relief
granted to Perez-Palafox by the Immigration Judge (IJ). The
BIA concluded that Perez-Palafox was not eligible for
withholding of removal because his conviction for
transportation of methamphetamine in violation of California
Health & Safety Code § 11379(a) constituted a particularly
serious crime.
As we later explain, we have jurisdiction pursuant to
8 U.S.C. § 1252(a) to review the BIA’s determination that
Perez-Palafox committed a particularly serious crime. See
Pechenkov v. Holder, 705 F.3d 444 (9th Cir. 2012). Because
the BIA did not engage in improper factfinding, we deny the
petition for review.
I. BACKGROUND
Perez-Palafox is a native and citizen of Mexico who was
admitted to the United States as an immigrant at the age of
six. Sixteen years later, on April 16, 1990, Perez-Palafox was
convicted in a California state court of the felony offense of
Possession for Sale of a Controlled Substance in violation of
California Health & Safety Code (Cal. H&S Code) § 11351,1
1
Cal. H&S Code § 11351 (1990) provided in pertinent part:
§ 11351. Possession or purchase for sale of designated
4 PEREZ-PALAFOX V. HOLDER
and sentenced to three years’ probation, with the first 180
days to be spent in county jail. Five days after his conviction,
Perez-Palafox obtained the status of lawful permanent
resident.
On April 5, 2001, the Immigration and Naturalization
Service (INS) issued a Notice to Appear (NTA) alleging that
Perez-Palafox was removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii), as an alien convicted of an aggravated
felony. On September 30, 2002, an IJ issued an in absentia
order of removal against Perez-Palafox after he failed to
appear at his scheduled removal proceeding.
On November 26, 2002, an IJ denied Perez-Palafox’s
motion to reopen seeking recision of the in absentia order.
On February 17, 2004, the BIA granted Perez-Palafox’s
appeal, finding that Perez-Palafox established exceptional
circumstances for his failure to appear, and remanded the case
to the Immigration Court for further proceedings.
On April 19, 2005, an IJ found Perez-Palafox removable
as charged in the NTA. Perez-Palafox applied for
cancellation of removal, asylum, and withholding of removal,
based on mental and physical disabilities stemming from a
brain injury incurred in 2000. The government did not
oppose Perez-Palafox’s application for withholding of
removal, and withholding of removal was granted.
controlled substances; punishment
Except as otherwise provided in this division, every
person who possesses for sale or purchases for purposes
of sale . . . any controlled substance . . . which is a
narcotic drug, shall be punished by imprisonment . . .
for two, three, or four years.
PEREZ-PALAFOX V. HOLDER 5
One year after he was granted withholding of removal
relief, Perez-Palafox was convicted by guilty plea in a
California state court of the felony offense of
Sale/Transportation of a Controlled Substance in violation of
Cal. H&S Code § 11379(a).2 He was sentenced to three
years’ imprisonment.
The government subsequently filed a motion to reopen for
the purpose of terminating Perez-Palafox’s withholding of
removal relief. An IJ granted the motion to reopen. During
the reopened proceedings, the government relied on
conviction documents and the police report for Perez-
Palafox’s 2006 conviction to establish that Perez-Palafox had
been convicted of a particularly serious crime.
The IJ acknowledged that “a drug trafficking offense is
presumptively a particularly serious crime.” However, the IJ
found that the government failed to establish by a
preponderance of the evidence that Perez-Palafox’s
conviction in 2006 for transportation of a controlled
substance was for a “drug trafficking offense.” The IJ
concluded that the police report should not be considered
because there was no plea colloquy reflecting that the report
2
Cal. H&S Code § 11379(a) (2006) provided in pertinent part:
...
“[E]very person who transports, imports into this state,
sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into this
state or transport any controlled substance . . . shall be
punished by imprisonment in the state prison for a
period of two, three, or four years.”
6 PEREZ-PALAFOX V. HOLDER
constituted a factual basis for Perez-Palafox’s guilty plea.
The IJ found that the conviction documents did not establish
that Perez-Palafox was convicted of a “drug trafficking”
offense. Consequently, the IJ denied the government’s
motion to terminate the prior grant of withholding of removal
relief.
Following the government’s appeal, the BIA remanded
the case to the Immigration Court for further proceedings.
The BIA determined that the IJ correctly concluded that
Perez-Palafox’s conviction was not “presumptively a
particularly serious crime.” The BIA noted that due to her
conclusion, the IJ was required to apply the case-by-case
analysis articulated in Matter of N-A-M-, 24 I&N Dec. 336
(BIA 2007), to assess whether Perez-Palafox’s conviction
constituted a particularly serious crime. The BIA interpreted
its holding in Matter of N-A-M- as permitting consideration
of all reliable information once the elements of the offense
were found to bring the crime within the realm of a
particularly serious crime, including “information outside the
confines of the record of conviction.” The BIA found that, in
conducting her case-by-case analysis, the IJ failed to give
appropriate consideration to the police report, which
contained “potentially dispositive evidence” that was not part
of the IJ’s factfinding. Also, the BIA noted that the IJ
acknowledged information that Perez-Palafox “was in
possession of three drugs as well as other things when he was
stopped,” but made no findings about these additional items
or their impact on her assessment.
The IJ, in declining to consider the facts set out in the
police report, relied on a case that no longer states the law.
The IJ followed Morales v. Gonzales, 478 F.3d 972, 982 (9th
Cir. 2007), as amended, which held that IJs should limit their
PEREZ-PALAFOX V. HOLDER 7
inquiry “to the record of conviction and sentencing
information” in determining whether a crime was
“particularly serious.” Id. at 982. However, Anaya-Ortiz v.
Holder, 594 F.3d 673 (9th Cir. 2010), decided three years
later, enlarged the scope of inquiry that the BIA could require
IJs to pursue. In that later case, we deferred to the BIA in
instructing IJs that “all reliable information may be
considered . . . including . . . information outside the confines
of a record of conviction.” Id. at 678 (quoting Matter of N-A-
M-, 24 I&N Dec. at 342). Thus, the BIA concluded that the
IJ should consider the facts in the police report, and remanded
the case to the IJ to enable the IJ to conduct a case-by-case
analysis of all relevant information. Petitioner does not
challenge this conclusion, and we express no opinion here as
to whether a police report may be considered “reliable
information.” Cf. Alphonsus v. Holder, 705 F.3d 1031, 1047
n.15 (9th Cir. 2013) (questioning if certain aspects of a police
report might not be reliable evidence).
During the remanded proceedings, the police report was
admitted into evidence and considered. The report provided
the observations and opinions of arresting police officer
Carlos Silva (Officer Silva). Officer Silva reported that he
found the following items in a bag on Perez-Palafox’s person:
methamphetamine, marijuana, cocaine, a digital scale, and
nine empty clear plastic bags.
Perez-Palafox admitted that when he was arrested he was
in possession of a bag of methamphetamine, a bag of cocaine,
and a bag of marijuana. Perez-Palafox also acknowledged
that he was in possession of a digital scale and empty plastic
bags, but stated that those items belonged to his brother.
Perez-Palafox conceded that he did not pay for the drugs, and
8 PEREZ-PALAFOX V. HOLDER
that he had sold drugs in the past, but maintained that he did
not possess drugs for sale at the time of his arrest.
After considering this evidence, the IJ again denied the
government’s motion to terminate the prior grant of
withholding of removal. The IJ held that Perez-Palafox’s
conviction was not “presumptively” a particularly serious
crime pursuant to Matter of Y-L-, 23 I&N Dec. 270 (Op. Att’y
Gen. 2002), because (1) a conviction under Cal. H&S Code
§ 11379(a) is not categorically a “drug trafficking aggravated
felony,” as the statute prohibits the transportation of a
controlled substance for personal use as well as for sale and
(2) the conviction documents in the record failed to establish
that Perez-Palafox’s conviction constituted a “drug
trafficking aggravated felony.”
Because Perez-Palafox’s conviction was not
presumptively a particularly serious crime, the IJ conducted
the case-by-case analysis outlined in Matter of N-A-M-, to
“examine the nature of the conviction, the type of sentence
imposed, and the circumstances and underlying facts of the
conviction.”
After considering the police report and Perez-Palafox’s
testimony, the IJ found that the government again failed to
establish by a preponderance of the evidence that Perez-
Palafox’s conviction constituted a particularly serious crime.
The IJ interpreted Perez-Palafox’s statement that he had
purchased the drugs immediately prior to his arrest as proof
that the drugs were packaged in the plastic bags by the dealer
who sold the drugs to Perez-Palafox, and did not support a
finding that Perez-Palafox intended to sell the drugs.
PEREZ-PALAFOX V. HOLDER 9
The IJ also discounted the drug quantity as indicative of
possession for sale, as well as the fact that Perez-Palafox “had
in his possession a digital scale and empty plastic baggies,
implements typically associated with drug trafficking.” The
IJ relied on Perez-Palafox’s explanation that these items
belonged to his brother. The IJ did not discuss the import of
Perez-Palafox’s testimony that he did not pay for the drugs.
The IJ based her conclusion, not on findings that Perez-
Palafox was credible, but on her belief that the government
had not proved that Perez-Palafox intended to sell the drugs,
rather than merely use the drugs himself.
The BIA again sustained the government’s appeal,
concluding that Perez-Palafox’s conviction in 2006 was a
“particularly serious drug offense posing a significant danger
to the community.” The BIA noted that its conclusion was
made pursuant to its authority to review de novo whether the
facts establish eligibility for relief. See Matter of A-S-B-,
24 I&N Dec. 493, 496 (BIA 2008) (clarifying that the Board
retains authority to apply the law to the facts). Pursuant to
that authority, the BIA vacated the IJ’s decision and the prior
grant of withholding of removal, and ordered Perez-Palafox
removed to Mexico.
Perez-Palafox filed a petition for review of the BIA
decision with this court. The BIA then issued an interim
order reopening the case decision due to a procedural error.
This court granted Perez-Palafox’s motion to dismiss the
petition for review for lack of jurisdiction in view of the
reopening.
On March 31, 2011, the BIA re-issued its decision. The
BIA granted the government’s appeal, concluding that Perez-
Palafox’s conviction in 2006 was for a “particularly serious
10 PEREZ-PALAFOX V. HOLDER
crime” because the drug trafficking offense posed a
significant danger to the community. The BIA vacated the
IJ’s decision and the prior grant of withholding of removal,
ordering Perez-Palafox removed to Mexico.
The BIA found no clear error with respect to the IJ’s
factfinding. Rather it applied the factors outlined in the
Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982) to those
facts. In Frentescu, the BIA outlined the following factors to
be considered in determining whether a crime is particularly
serious: (1) the nature of the offense, (2) the circumstances
and underlying facts of the crime, (3) the type of sentence
imposed, and (4) whether the type and circumstances of the
crime indicate that the alien will be a danger to the
community.
The BIA observed that Perez-Palafox: (1) “was carrying
multiple illicit substances and other items related to the
packaging of drugs for sale and distribution when he was
arrested,” (2) “admitted he was carrying implements related
to the distribution of drugs from a drug dealer to his brother,”
(3) “admitted that he had not paid for the drugs and owed the
drug dealer for them,” and (4) “was sentenced to three years
incarceration.” Applying the Frentescu factors, the BIA
concluded that Perez-Palafox’s conviction was for a
particularly serious crime that rendered him ineligible for
withholding of removal.
The BIA noted that the statute of conviction punishes
drug-related crimes, including drug trafficking. In addition,
Perez-Palafox was carrying items commonly used for the
distribution of drugs, and admitted that he had not yet paid
the drug dealer for the drugs. The BIA concluded that the
lack of specificity regarding the exact amount of drugs did
PEREZ-PALAFOX V. HOLDER 11
not eviscerate the officer’s opinion that the observed quantity
of drugs was consistent with drug trafficking, especially in
light of the other items seized during Perez-Palafox’s arrest
that pointed toward drug trafficking.
The BIA ultimately concluded that Perez-Palafox was
convicted of a particularly serious crime, rendering him
ineligible for withholding of removal. The BIA sustained the
government’s appeal, vacated the IJ’s decision, vacated the
prior grant of withholding of removal and ordered Perez-
Palafox removed to Mexico. Perez-Palafox filed a timely
petition for review.
II. STANDARDS OF REVIEW
We have jurisdiction to determine our jurisdiction. See
Malilia v. Holder, 632 F.3d 598, 602 (9th Cir. 2011). We
have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), to review
whether the BIA applied the correct legal standard. See
Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir.
2009).
“Whether the BIA has applied the correct standard of
review is a question of law.” Ridore v. Holder, 696 F.3d 907,
911 (9th Cir. 2012) (citation omitted).
III. DISCUSSION
A. Jurisdiction Over Perez-Palafox’s Petition
1. Eligibility for Withholding of Removal
Perez-Palafox challenges the BIA’s determination that his
2006 conviction for the felony offense of Sale/Transportation
12 PEREZ-PALAFOX V. HOLDER
of a Controlled Substance in violation of Cal. H&S Code
§ 11379(a) was a particularly serious crime posing a
significant danger to the community. The determination that
a crime is “particularly serious” renders an alien ineligible for
withholding of removal relief. Delgado v. Holder, 648 F.3d
1095, 1101 (9th Cir. 2011) (en banc). Absent this relief,
Perez-Palafox faces imminent removal from this country.
2. Jurisdiction
The government asserts that we lack jurisdiction to review
this petition because 8 U.S.C. §§ 1252(a)(2)(C) and (D) limit
our jurisdiction to constitutional claims and questions of law,
and the particularly serious crime determination is an
unreviewable discretionary decision. The government argues
that even if we have jurisdiction to review the particularly
serious crime determination in the abstract, the fact that the
initial crime involved in the removal was an aggravated
felony deprives us of jurisdiction over this petition. We
recently articulated the extent of our jurisdiction to review the
particularly serious crime determination in Pechenkov,
705 F.3d at 447–48. In Pechenkov, the petitioner was
convicted of assault with a deadly weapon, an aggravated
felony. See id. at 446–47. His application for withholding of
removal was denied due to the IJ’s determination that the
crime of conviction was particularly serious. After the BIA
adopted the IJ’s opinion, Pechenkov filed a petition for
review. As in this case, the government contended that we
lacked jurisdiction over the petition because Pechenkov had
been convicted of an aggravated felony. See id. at 447. We
explained that although 8 U.S.C. § 1252(a)(2)(C) stripped us
of jurisdiction to review final orders of removal against an
alien who is being removed for having committed an
aggravated felony, 8 U.S.C. § 1252(a)(2)(D) “restored
PEREZ-PALAFOX V. HOLDER 13
jurisdiction over constitutional claims or questions of law
even in cases involving aggravated felons. . . .” Id. at 447–48
(citation, footnote reference and internal quotation marks
omitted). We also clarified that as to factual matters, if the IJ
denies relief on the merits rather than in reliance on the
conviction, we retain jurisdiction to review the petition. See
id. at 448.
In sum, we held that the jurisdictional bar set forth in
§ 1252(a)(2)(C) is subject to two exceptions. See id. The
first exception permits our review of “questions of law or
constitutional claims.” Id. The second exception permits our
review when the IJ denies relief on the merits of the claim
rather than in reliance on the conviction, i.e., when the IJ
concludes that the petitioner failed to establish the requisite
grounds for relief. See id.
We ultimately concluded that we lacked jurisdiction over
Pechenkov’s petition because he did not challenge his
removability for commission of an aggravated felony and
because he did not raise a constitutional or legal issue in
challenging the particularly serious crime determination. See
id.
As in Pechenkov, Perez-Palafox does not challenge his
removability for commission of an aggravated felony.
However, unlike in Pechenkov, Perez-Palafox raises a legal
challenge to the BIA ruling — whether the BIA engaged in
impermissible factfinding. See Ridore, 696 F.3d at 911
(concluding that whether the BIA applied the proper standard
of review raises a legal question). Therefore, we have
jurisdiction over this aspect of Perez-Palafox’s petition for
review. See Pechenkov, 705 F.3d at 447–48; see also Afridi
v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006), overruled
14 PEREZ-PALAFOX V. HOLDER
on other grounds in Estrada-Espinoza v. Mukasey, 546 F.3d
1147, 1160 n.15 (9th Cir. 2008) (en banc); Rodriguez v.
Holder, 683 F.3d 1164, 1170 (9th Cir. 2012).
B. BIA Review of the Immigration Judge’s Decision
Perez-Palafox contends that the BIA violated 8 C.F.R.
§ 1003.1(d)(3)(iv)3 by engaging in improper factfinding when
it reversed the IJ’s decision denying the government’s motion
to terminate withholding of Perez-Palafox’s removal.
Although the BIA may not engage in de novo factfinding
and may only review the IJ’s findings under the clearly
erroneous standard, the BIA may review “legal questions,
discretion, and judgment . . . de novo.” 8 C.F.R.
§ 1003.1(d)(3)(ii); see also Ridore, 696 F.3d at 911. We
explained in Ridore that there are two distinct questions that
must be analyzed by the BIA, the first is a factual question
and the second is a question of law. See Ridore, 696 F.3d at
915. The factual question involves the findings detailing the
particular circumstances underlying the petitioner’s claim.
See id. Questions of law resolve the legal consequences of
the underlying facts, i.e., whether the petitioner meets the
3
8 C.F.R. § 1003.1(d)(3)(iv) provides:
Except for taking administrative notice of commonly
known facts such as current events or the contents of
official documents, the Board will not engage in
factfinding in the course of deciding appeals. A party
asserting that the Board cannot properly resolve an
appeal without further factfinding must file a motion for
remand. If further factfinding is needed in a particular
case, the Board may remand the proceeding to the
immigration judge or, as appropriate, to the Service.
PEREZ-PALAFOX V. HOLDER 15
legal requirements for the requested relief or conversely,
whether the government has established ineligibility. See id.
Here, the BIA completely accepted the factual findings
made by the IJ. Although Perez-Palafox accuses the BIA of
engaging in improper factfinding, he does not point to any
fact found by the IJ that was ignored by the BIA, or any fact
found by the BIA that was not found by the IJ. Cf. Ridore,
696 F.3d at 916 (criticizing the BIA decision for failing to
address “most of the IJ’s specific factual findings”); Brezilien
v. Holder, 569 F.3d 403, 413–14 (9th Cir. 2009), as amended
(observing that the BIA found facts not found by the IJ and
rejected facts found by the IJ). Rather than ignoring facts
found by the IJ or making findings in addition to those made
by the IJ, the BIA specifically applied the factors outlined in
Frentescu to the facts found by the IJ to reach the legal
conclusion that Perez-Palafox’s conviction was for a
particularly serious crime. It was entirely appropriate for the
BIA to determine whether the crime committed by Perez-
Palafox was a particularly serious crime. See Delgado v.
Holder, 563 F.3d 868, 868 (9th Cir. 2009) (so holding). The
BIA applied the Frentescu factors to the underlying facts as
found by the IJ that Perez-Palafox: (1) “was carrying
multiple illicit substances and other items related to the
packaging of drugs for sale and distribution when he was
arrested,” (2) “admitted he was carrying implements related
to the distribution of drugs from a drug dealer to his brother,”
(3) “admitted that he had not paid for the drugs and owed the
drug dealer for them,” and (4) “was sentenced to three years
incarceration.” We have consistently held that application of
the Frentescu factors to the underlying facts is a legal
conclusion and not a factfinding endeavor. See Afridi,
442 F.3d at 1219; see also Miguel-Miguel v. Gonzales,
16 PEREZ-PALAFOX V. HOLDER
500 F.3d 941, 945 (9th Cir. 2007); Anaya-Ortiz, 594 F.3d at
676.
Unlike in Ridore, the BIA in this case recognized and
acknowledged that the IJ’s factual findings were to be
reviewed for clear error. Cf. Ridore, 696 F.3d at 914 (noting
that “the BIA’s decision nowhere mentions a standard of
review”). In Ridore, the BIA did not address the IJ’s specific
factual findings and applied de novo review to the facts of the
case. See id. at 916. We faulted the BIA for rejecting the IJ’s
ruling “in a single, largely conclusory paragraph that
essentially recited the general conclusions the BIA reached in
2002 in In re J-E- [23 I&N Dec. 291 (2002) (en banc)].” In
Ridore, the BIA failed to address most of the IJ’s factual
findings and the evidence underlying those findings. See id.
As stated above, here the BIA fully acknowledged and
discussed the IJ’s factual findings and determined that the IJ’s
factual findings, when assessed against the Frentescu factors,
resulted in a legal conclusion that Perez-Palafox had been
convicted of a particularly serious crime. See Anaya-Ortiz,
594 F.3d at 679–80 (approving the BIA’s application of the
Frentescu factors to the facts).
Our recent decision in Vitug v. Holder, 723 F.3d 1056
(9th Cir. 2013) does not compel us to grant the petition in this
case, because the panel in Vitug addressed a BIA decision
much like the one criticized in Ridore. Vitug was harassed in
school for his effeminate manner and at the age of eight or
nine was sexually abused by a man. See id. at 1060. Vitug
provided several examples of persecution during his life in
the Philippines due to his sexual orientation, and the IJ found
Vitug credible. See id. at 1060–61. The IJ based his factual
findings on Vitug’s testimony and the documentary evidence.
See id. at 1061. After the government failed to challenge
PEREZ-PALAFOX V. HOLDER 17
Vitug’s testimony or the documentary evidence introduced by
Vitug, the IJ granted withholding of removal relief. See id.
On appeal, the BIA vacated the IJ’s decision. See id.
However, the BIA based its conclusion on facts that were not
in the record and ignored the factual findings made by the IJ.
See id. at 1061–62. In addition, the BIA held at one point that
the IJ’s factual findings were not clearly erroneous but, later
in its decision, contradicted itself by stating that one of the
IJ’s factual findings was clearly erroneous. See id. at 1062.
We concluded that the BIA engaged in improper factfinding
because the BIA based its determination on factual findings
not made by the IJ while disregarding the facts actually found
by the IJ. See id. at 1063–64. For these reasons, we
concluded that the BIA failed to apply the clear error standard
of review and abused its discretion. See id. at 1064.
In this case, the BIA specifically and explicitly stated that
it applied the clear error standard. The BIA applied the
Frentescu factors to the facts found by the IJ. The BIA did
not add any facts to those found by the IJ or ignore any facts
found by the IJ. Unlike the BIA’s approach in Ridore and
Vitug, the BIA in this case did not engage in impermissible
factfinding. See Anaya-Ortiz, 594 F.3d at 679–80
(concluding that the BIA correctly applied the Frentescu
factors to facts found by the IJ).4
4
Perez-Palafox also asserts that his due process rights were violated
when the BIA sua sponte reopened his removal proceedings, filed an
interim order, and then filed an amended order. However, it is well
established that the BIA may reopen or reconsider a case on its own
motion. See 8 C.F.R. § 1003.2(a); see also Diaz-Covarrubias v. Mukasey,
551 F.3d 1114, 1117 (9th Cir. 2009).
18 PEREZ-PALAFOX V. HOLDER
IV. CONCLUSION
We have jurisdiction over this case because Perez-Palafox
raised as an issue of law that the BIA engaged in
impermissible factfinding in the course of its determination
that Perez-Palafox committed a particularly serious crime.
We deny Perez-Palafox’s petition because we do not agree
that the BIA engaged in impermissible factfinding.
PETITION DENIED.