Doi Phan v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION NOV 01 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DOI PHAN, No. 10-73901
Petitioner, Agency No. A025-179-936
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 17, 2012
San Francisco, California
Before: BEA and HURWITZ, Circuit Judges, and SESSIONS, District Judge.**
Doi Phan, a native and citizen of Vietnam, petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) denying his application for withholding
of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William K. Sessions, III, United States District Judge
for the District of Vermont, sitting by designation.
One convicted of a “particularly serious crime” is ineligible for withholding of
removal. See 8 C.F.R. § 1208.16(d)(2); Lopez-Cardona v. Holder, 662 F.3d 1110,
1111 (9th Cir. 2011); see also 8 U.S.C. § 1231(b)(3)(B) (defining “particularly serious
crime”). This court previously vacated the BIA’s determination that Phan’s
conviction for violating California Penal Code § 288(a) was facially a “particularly
serious crime.” Phan v. Holder, No. 06-72575, 2009 WL 3748412 (9th Cir. Nov. 6,
2009). The panel expressly rejected the BIA’s determination that the crime was
particularly serious based on its elements alone, and remanded for “a case-specific
determination examining all of the factors identified in In re Frentescu, 18 I. & N.
Dec. 244, 247 (1982).” Id. at *1.
On remand, however, a divided BIA did not conduct the mandated Frentescu
analysis. Instead, over a dissent, the majority again held that violations of § 288(a)
are particularly serious based on the elements of the offense alone.
Under the law of the case doctrine, “a court is generally precluded from
reconsidering an issue that has already been decided by the same court, or a higher
court in the identical case.” Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)
(citation omitted). Thus, “[a]bsent either new information or intervening case law,”
both this Court and lower courts are compelled to follow the mandate of the previous
panel. United States v. Paul, 561 F.3d 970, 975 (9th Cir. 2009). Similarly, an
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administrative agency may not deviate from the reviewing court’s remand order. See
Sullivan v. Hudson, 490 U.S. 877, 885-86 (1989).
In its decision on remand, the BIA suggested that an intervening Ninth Circuit
decision, Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010), now allowed it to find
offenses particularly serious based solely on their elements. The BIA believed that
Anaya-Ortiz had extended Chevron deference to Matter of N-A-M-, 24 I. & N. Dec.
336 (BIA 2007), which the BIA read as allowing it to declare offenses particularly
serious based solely on their elements.
There are two flaws with this analysis. First, although Matter of N-A-M-
assumed the agency’s power to prescribe particularly serious crimes based solely on
their elements, 24 I. & N. Dec. at 343, the BIA actually conducted a case-specific
analysis in that case, see id. at 343-44. Thus, it is not clear whether the statement in
Matter of N-A-M- about determining particularly serious crimes based solely on their
elements was necessary to its holding, or was mere dicta.
More importantly, Anaya-Ortiz did not defer to Matter of N-A-M- with respect
to the statement. Rather, Anaya-Ortiz involved the type of case-specific determination
mandated by the previous decision in this case. This court deferred to Matter of N-A-
M- only on the question of what evidence could be considered in making that
determination. Anaya-Ortiz, 594 F.3d at 678 (“[W]e therefore defer to the BIA’s
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reasonable conclusion that ‘all reliable information may be considered in making a
particularly serious crime determination, including the conviction records and
sentencing information, as well as other information outside the confines of a record
of conviction.’” (quoting Matter of N-A-M-, 24 I. & N. Dec. at 342)).
Thus, the BIA erred in assuming that Anaya-Ortiz allowed it to disregard the
previous mandate of this court. The question of whether the BIA has the power to
declare crimes particularly serious based on their elements alone will almost surely
have to be addressed by this court in some case. But given the prior panel’s mandate,
this is not that case. Because the BIA was not free to disregard that mandate, we
remand to the agency once again to conduct a Frentescu analysis.
PETITION FOR REVIEW GRANTED; REMANDED.
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