912 F.2d 1027 (9th Cir. 1990) (per curiam), superseded in
other part by statute as stated in Urbina-Mauricio v. INS,
989 F.2d 1085 (9th Cir. 1993).>
No future petitions for rehearing or rehearing en banc will
be entertained.
IT IS SO ORDERED.
OPINION
PER CURIAM:
Khalil-Salim Arbid (“Arbid”), a native and citizen of
Lebanon, petitions for review of a decision from the Board of
Immigration Appeals (“BIA”). The BIA upheld the
immigration judge’s (“IJ”) determination that Arbid had
committed a particularly serious crime, rendering him
ineligible for asylum or withholding of removal. The BIA also
affirmed the IJ’s finding that conditions had changed in
Lebanon such that it was no longer more likely than not that
Arbid would be tortured upon his return. Arbid argues that
his mail fraud conviction was not a particularly serious crime
ARBID V . HOLDER 5
and that it is still more likely than not that he will be tortured
upon his return to Lebanon. We have jurisdiction pursuant to
8 U.S.C. § 1252(a)(1), and we deny the petition.
I
After suffering torture at the hands of Syrian intelligence
agents in Lebanon in the late 1990s, Arbid fled to the West.
He traveled to Mexico in 2000 and soon entered the United
States at the Port of Entry at Douglas, Arizona, falsely
claiming to be an American citizen.
Three months after his illegal entry, Arbid was served with
a Notice to Appear before an IJ. Arbid admitted that he had
lied about his citizenship to gain entry into the United States,
but he sought asylum and withholding of removal. The IJ
determined that Arbid had a well-founded fear of persecution
for his political beliefs should he be removed to Lebanon and
granted Arbid’s application for asylum and withholding of
removal.
In April 2008, Arbid pleaded guilty to mail fraud under
18 U.S.C. § 1341. According to the Statement of Facts
accompanying his plea agreement, Arbid was involved in a
two-man scheme to defraud mortgage lenders. The scheme’s
general purpose was to receive multiple “loans” from different
institutions using a single house in suburban Washington,
D.C., as collateral. Arbid created false documents to induce
lenders to issue loans, the proceeds of which he deposited into
his personal checking account. Arbid was sentenced to
sixteen months in prison and was ordered to pay more than
$650,000 in restitution.
6 ARBID V . HOLDER
After Arbid served his criminal sentence, the Department
of Homeland Security (“DHS”) moved to reopen Arbid’s
removal proceedings, charging that Arbid was no longer
eligible for asylum or withholding of removal because he had
been convicted of a particularly serious crime. After hearing
Arbid’s description of his criminal activities and after
reviewing the criminal record, the IJ held that Arbid’s crime of
conviction was particularly serious, rendering him ineligible
for asylum or withholding of removal. The IJ then held a
hearing to determine whether conditions had changed in
Lebanon such that it was no longer more likely than not that
Arbid would be tortured if he was removed there. After both
parties submitted exhibits about country conditions in
Lebanon, the IJ determined that conditions had changed such
that Arbid was not eligible for deferral of removal under the
Convention Against Torture (“CAT”). The BIA upheld the
IJ’s decision in a reasoned opinion.
II
A
Under 8 U.S.C. § 1231(b)(3)(B)(ii), an alien is not eligible
for withholding of removal if the Attorney General—or its
delegate, the BIA1—“decides” that the alien has “been
convicted by a final judgment of a particularly serious crime.”
As we recently held in Delgado v. Holder,
648 F.3d 1095 (9th
Cir. 2011) (en banc), “we have jurisdiction to review the
BIA’s determination that an alien has been convicted of a
1
“As adjudicator in immigration cases, the Board exercises authority
delegated by the Attorney General.” Kucana v. Holder,
130 S. Ct. 827,
832 (2010).
ARBID V . HOLDER 7
‘particularly serious crime’ and is therefore ineligible for
withholding of removal.” Id. at 1097 (overruling Matsuk v.
INS,
247 F.3d 999, 1002 (9th Cir. 2001)).2
B
Although we have recognized our jurisdiction to review
BIA decisions on particularly serious crimes, we have not
announced a standard of review for those decisions. See id.
at 1108 (failing to reach the standard-of-review issue because
the BIA had not met its minimum procedural requirements
under the Due Process Clause). Based on our prior case law
interpreting § 1231(b)(3)(B)(ii), we now hold that determining
whether a crime is particularly serious is an inherently
discretionary decision, and we will review such decisions for
2
At oral argument, the government contended—for the first time—that
we lack jurisdiction to review Arbid’s removal order because he was
found removable as an aggravated felon. See 8 U.S.C. § 1252(a)(2)(C).
Upon closer reading of the record, the government is mistaken. DHS had
originally charged Arbid as removable for having committed an
aggravated felony, but later withdrew that charge. Thus, as was precisely
the case in Delgado, we need not reach the issue of whether
§ 1252(a)(2)(C) bars our review. See Delgado, 648 F.3d at 1098 n.5.
We called for additional briefing after oral argument. The
government now argues in its supplemental brief that we lack jurisdiction
because Arbid is removable as an alien convicted of a crime involving
moral turpitude (“CIMT”). See 8 U.S.C. § 1182(a)(2)(A)(i)(I). This
argument is not only improperly raised, but is also completely
unsupported by the record. Neither the IJ’s decision nor the BIA’s
opinion makes even passing reference to Arbid’s being convicted of a
CIMT. Thus, despite the government’s argument to the contrary, we
again hold that the criminal alien review bar does not apply in cases like
this one.
8 ARBID V . HOLDER
abuse of discretion. The Supreme Court’s decision in Kucana
v. Holder,
130 S. Ct. 827 (2010), and our recent decision in
Delgado, do not require a different outcome. To the contrary,
employing an abuse-of-discretion standard of review is
consistent with those cases and the law of our sister circuits.
C
Our analysis begins with the text of § 1231(b)(3)(B)(ii)
itself. See Rodriguez v. Holder,
619 F.3d 1077, 1079 (9th
Cir. 2010) (per curiam). Section 1231(b)(3)(B)(ii) states that
an alien is ineligible for withholding of removal “if the
Attorney General decides” that the alien has been convicted of
a particularly serious crime. Our pre-Delgado cases properly
interpreted the particularly serious crime “decisions” to be
within the Attorney General’s discretion. See Matsuk, 247
F.3d at 1002. This approach is consistent with the BIA’s own
interpretation of the statute. See In re N-A-M-, 24 I & N Dec.
336, 344 (B.I.A. 2007) (describing determinations of
particularly serious crimes as “inherently discretionary”).
D
Because of our consistent treatment of particularly serious
crime determinations as discretionary, we previously
interpreted 8 U.S.C. § 1252(a)(2)(B)(ii)—the so-called
“discretionary review bar”—to divest us of jurisdiction to
review such determinations. See 8 U.S.C. § 1252(a)(2)(B)(ii)
(explaining that “no court shall have jurisdiction to
review . . . any other decision or action of the Attorney
General . . . the authority for which is specified under this
subchapter to be in the discretion of the Attorney General”);
see also Matsuk, 247 F.3d at 1002 (holding that, because
ARBID V . HOLDER 9
particularly serious crime determinations are discretionary,
“[s]ection 1252(a)(2)(B)(ii) divests this court of jurisdiction to
review this issue”).
Our interpretation of § 1252(a)(2)(B)(ii) changed,
however, after the Supreme Court’s decision in Kucana. At
issue in Kucana was the BIA’s denial of an alien’s motion to
reopen his immigration proceedings. 130 S. Ct. at 831.
Section 1229a(C)(7)—the section of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 that covers
motions to reopen—is silent as to whether the decision to
deny a motion to reopen is within the Attorney General’s
discretion. See Kucana, 130 S. Ct. at 831 (citing
§ 1229a(C)(7)). The Attorney General, however, issued a
regulation declaring such decisions to be discretionary. See
id. at 832 (citing 8 C.F.R. § 1003.2(a)). The Seventh Circuit,
recognizing the Attorney General’s discretion as announced in
the regulation, held that § 1252(a)(2)(B)(ii) precluded judicial
review of the decision to deny the motion to reopen. Id. at
833.
The Court, recognizing “the presumption favoring judicial
review of administrative action,” id. at 839, held that
§ 1252(a)(2)(B)(ii) does not prohibit judicial review of
“determinations declared discretionary by the Attorney
General himself through regulation,” id. at 831. Rather, the
statute “bar[s] court review of discretionary decisions only
when Congress itself set[s] out the Attorney General’s
discretionary authority in the statute.” Id. at 837. A contrary
ruling, the Court explained, would grant the BIA “a free hand
to shelter its own decisions from abuse-of-discretion appellate
court review simply by issuing a regulation declaring those
decisions ‘discretionary.’” Id. at 840.
10 ARBID V . HOLDER
In our recent en banc decision in Delgado, we applied the
Court’s Kucana rationale to BIA determinations of
particularly serious crimes. Delgado, 648 F.3d at 1100. We
interpreted Kucana to mean that § 1252(a)(2)(B)(ii) only bars
review of a discretionary decision when “the statute explicitly
refers to the discretion of the Attorney General.” Id. Because
§ 1231(b)(3)(B)(ii) merely allows the Attorney General to
“decide” whether the alien’s crime was particularly serious,
the language “does not explicitly vest discretion in the
Attorney General.” Id. Thus, we have jurisdiction to review
such decisions. Id.
But simply because the statute does not “explicitly vest”
the Attorney General with discretion to decide whether a
crime is particularly serious does not mean that such decisions
are not discretionary. Indeed, as the Court pointed out in
Kucana, a BIA decision can still be discretionary without
triggering § 1252(a)(2)(B)(ii)’s discretionary review bar. In
Kucana, the Court recognized that, notwithstanding its
narrow interpretation of § 1252(a)(2)(B)(ii), BIA decisions
concerning motions to reopen are still inherently discretionary.
130 S. Ct. at 834. The Court affirmed that such decisions are
properly reviewed for abuse of discretion. Id. (“Mindful of
the Board’s ‘broad discretion’ in such matters, however,
courts have employed a deferential, abuse-of-discretion
standard of review.”).
Without expressly saying so, our opinion in Delgado
recognized that particularly serious crime determinations are
within the Attorney General’s discretion. We explained that
the Attorney General has the “authority to determine that,
under the circumstances presented by an individual case, a
crime was ‘particularly serious.’” Delgado, 648 F.3d at 1105.
ARBID V . HOLDER 11
We also recognized that these determinations are informed by
a series of factors that the BIA itself has identified, including
“‘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. at 1107 (quoting In re
Frentescu, 18 I & N Dec. 244, 247 (B.I.A. 1982)).
Given the discretion afforded the Attorney General in
§ 1231(b)(3)(B)(ii), other circuits have held particularly
serious crime determinations to be discretionary—and have
reviewed them on an abuse-of-discretion
standard—notwithstanding the inapplicability of
§ 1252(a)(2)(B)(ii). See, e.g., Gao v. Holder,
595 F.3d 549,
557 (4th Cir. 2010) (referring to particularly serious crime
determinations as within the Attorney General’s discretion and
recognizing that such determinations are reviewed for abuse
of discretion), cert. denied,
131 S. Ct. 898 (2011); see also
Nethagani v. Mukasey,
532 F.3d 150, 155 (2d Cir. 2008)
(recognizing that particularly serious crime determinations are
within the BIA’s discretion and upholding the BIA’s
determination because it had followed the Frentescu factors).
Thus, we hold that the BIA’s determination that an alien was
convicted of a particularly serious crime is a discretionary
decision, and we review such decisions under an abuse-of-
discretion standard.3
3
As we have explained in text, the BIA’s assessment and weighing of
the Frentescu factors is a discretionary decision. Nothing in our opinion
should be read to alter the principle that constitutional and legal
challenges, including legal challenges to § 1231(b)(3)(B)(ii), are
questions of law that we review de novo. Lopez-Cardona v. Holder, 662
12 ARBID V . HOLDER
E
On abuse-of-discretion review, we may disturb the BIA’s
ruling if the BIA acted “arbitrarily, irrationally, or contrary to
law.” Singh v. INS,
213 F.3d 1050, 1052 (9th Cir. 2000)
(internal quotation marks omitted); United States v. Hinkson,
585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). In this case,
Arbid argues that the BIA and IJ erred in assessing and
weighing the Frentescu factors.4 We disagree.
Neither the BIA nor the IJ abused its discretion in holding
that Arbid was convicted of a particularly serious crime. The
IJ began his analysis with a review of the Frentescu factors.
He looked at the conviction itself, a guilty plea for mail fraud.
He reviewed the underlying facts of the conviction, studying
the Statement of Facts that accompanied Arbid’s guilty plea
and asking Arbid questions about the crime. He paid special
attention to Arbid’s sentence, including the “substantial” 16-
month term of imprisonment and the $650,000 restitution
order. He was disturbed by Arbid’s testimony insisting that he
was the victim in the scheme, finding that Arbid “apparently
F.3d 1110, 1111 (9th Cir. 2011). Moreover, challenges to the BIA’s
interpretation of ambiguous statutory language would still be analyzed
under the framework set out in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc.,
467 U.S. 837, 842 (1984). See INS v.
Aguirre-Aguirre,
526 U.S. 415, 425 (1999).
4
Arbid did not raise a legal challenge to the BIA’s interpretation of
§ 1231(b)(3)(B)(ii). He merely challenged the IJ and BIA’s application
to his case of its own settled standard. Cf. Beltran-Zavala v. INS,
912
F.2d 1027 (9th Cir. 1990) (per curiam), superseded in other part by
statute as stated in Urbina-Mauricio v. INS,
989 F.2d 1085 (9th Cir.
1993).
ARBID V . HOLDER 13
has no remorse and doesn’t even take responsibility for his
part in the conspiracy and in the fraudulent scheme.” Finally,
based on the “good likelihood” that Arbid’s crimes could
happen again, the IJ determined that Arbid “certainly would be
a danger to the community.”
The BIA reviewed the IJ’s determination and held that the
IJ “properly considered the nature of the conviction, the
sentence imposed, and the circumstances and underlying facts
of the conviction.” The BIA then considered the “nature and
scope” of Arbid’s crime, finding that the “complex scheme” to
defraud victims of nearly $2 million constituted a particularly
serious crime. We hold that the BIA and IJ did not abuse their
discretion.
III
Because we do not disturb the IJ and BIA’s determination
that Arbid committed a particularly serious crime, Arbid is not
eligible for asylum or withholding of removal. See 8 U.S.C.
§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Arbid’s only
remaining means of avoiding removal is deferral of removal
under the CAT. See 8 C.F.R. § 1208.17(a). We review for
substantial evidence the factual findings underlying the IJ and
BIA’s determination that Arbid was not eligible for deferral of
removal under the CAT. See Zheng v. Ashcroft,
332 F.3d
1186, 1193 (9th Cir. 2003). To reverse the BIA’s factual
findings, “the evidence must compel a different conclusion
from the one reached by the BIA.” Zheng v. Holder,
644 F.3d
829, 835 (9th Cir. 2011).
Substantial evidence supports the IJ’s decision, affirmed
by the BIA, that conditions in Lebanon had changed such that
14 ARBID V . HOLDER
it was no longer more likely than not that Arbid would be
tortured upon his return there. Since the late 1990s when
Arbid was persecuted for his anti-Syrian views, the Syrian
military has withdrawn from Lebanon, an anti-Hezbollah
majority has wrested control of the legislature, and the
political leader Arbid previously supported has returned from
exile to help govern the state. This evidence does not compel
a different result.
PETITION DENIED.