Roberto Blandino-Medina v. Eric Holder, Jr.

Filing

FILED OPINION (CARLOS T. BEA, ANDREW D. HURWITZ and WILLIAM K. SESSIONS, III) All pending motions in this case are DENIED. GRANTED IN PART, DENIED IN PART, AND REMANDED. Judge: CTB Authoring, FILED AND ENTERED JUDGMENT. [8584142]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERTO JAVIER BLANDINO MEDINA ,
Petitioner,

No. 11-72081
Agency No.
A077-223-173

v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 17, 2012—San Francisco, California
Filed April 10, 2013
Before: Carlos T. Bea and Andrew D. Hurwitz, Circuit
Judges, and William K. Sessions, District Judge.*
Opinion by Judge Bea

*

The Honorable W illiam K. Sessions, III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.

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SUMMARY**

Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of protection under the
Convention Against Torture to a citizen of Nicaragua, and
vacated the Board’s holding that petitioner’s conviction for
lewd and lascivious acts with a child under the age of 14, in
violation of California Penal Code § 288(a), is a per se
particularly serious crime precluding withholding of removal
relief.
As an initial matter, the panel held that the petition
presented a live case or controversy, notwithstanding
petitioner’s removal to Nicaragua, because petitioner’s
removal had the collateral consequence of rendering him
inadmissible under 8 U.S.C. § 1182(a)(9)(A)(ii).
Distinguishing Kaur v. Holder, 561 F.3d 957 (9th Cir. 2009),
the panel rejected the government’s argument that the petition
was moot because there was an independent basis for
petitioner’s inability the return to the United States – the fact
that his conviction was a crime involving moral turpitude –
because petitioner could seek a discretionary waiver under 8
U.S.C. § 1182(h).
The panel held that 8 U.S.C. § 1231(b)(3)(B)(iv)
unambiguously creates only one category of per se
particularly serious crimes for purposes of withholding of
removal, aggravated felonies for which the alien was
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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sentenced to at least five years’ imprisonment, and precludes
the agency from creating additional categories of facially
particular serious crimes. The panel held that the Board
therefore erred in concluding that petitioner’s conviction for
lewd and lascivious acts with a child under the age of 14, in
violation of California Penal Code § 288(a), was per se
particularly serious. The panel remanded for the Board to
engage in a case-specific analysis in accordance with Matter
of Frentenscu, 18 I. & N. Dec. 244 (BIA 1982) to determine
whether petitioner’s conviction was for a particularly serious
crime.
The panel held that substantial evidence supported the
Board’s determination that petitioner failed to establish a
clear probability that he would be tortured if returned to
Nicaragua.

COUNSEL
Madeline Feldon (argued), Amy VyHanh Nguyen (argued),
and Evangeline G. Abriel, Santa Clara University School of
Law, Santa Clara, California, for Petitioner.
Zoe J. Heller (argued), Office of Immigration Litigation,
Washington, D.C., for Respondent.

OPINION
BEA, Circuit Judge:
Roberto Xavier Blandino-Medina, a Nicaraguan citizen,
seeks review of two decisions by the Board of Immigration

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Appeals (“BIA”): (1) a decision reversing an Immigration
Judge’s (“IJ’s”) grant of withholding of removal pursuant to
the Convention Against Torture (“CAT”), and (2) a decision
affirming the IJ’s finding that Blandino’s conviction for lewd
and lascivious acts with a child under the age of 14, in
violation of California Penal Code § 288(a), is a particularly
serious crime, rendering him statutorily ineligible for
withholding of removal.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). We
affirm the BIA’s decision concerning withholding of removal
pursuant to the CAT, but vacate its decision holding that
Blandino’s conviction under Section 288(a) is a particularly
serious crime per se, and remand to the BIA to consider the
circumstances of the offense.
I. Facts and Procedural Background
Blandino is a Nicaraguan citizen, born in 1982. Several
members of Blandino’s family were affiliated with the
Somoza regime, and after the Sandinistas took power, his
family was persecuted. Blandino’s father fled to the United
States in 1986 and was later granted political asylum. In
1987, Blandino came to California to live with his father.
When Blandino was ten years old, his father sent him
back to Nicaragua. Shortly after returning, Blandino
encountered problems with the Sandinista National Liberation
Front (“FSLN”). While Blandino was in school, the FSLN
forced students to do manual labor. Blandino was forced to
build barricades and beaten for not complying with the
FSLN’s instructions. When he was fifteen years old,
Blandino was detained by the police for three days and
questioned about his parents.

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On December 19, 1998, Blandino entered the United
States without permission and was apprehended by Border
Patrol agents. The Immigration and Nationalization Service
(“INS”) sought to remove him for entering the country
illegally. Blandino applied for Temporary Protected Status
(“TPS”), and in 1999 the INS granted that application and
closed removal proceedings.
Since 1999, Blandino has been convicted of three crimes.
The third conviction is central to this appeal: a 2008 guilty
plea to the felony of lewd and lascivious conduct with a child
under the age of fourteen in violation of Section 288(a),1 for
which Blandino was sentenced to one year in county jail, five
years of felony probation, and registration as a sex offender.
In 2009, the Department of Homeland Security (“DHS”)
re-instituted removal proceedings. Blandino appeared before
an IJ, conceded the legal and factual bases for removal, but
sought cancellation of removal and adjustment of status
(along with a waiver of inadmissibility) pursuant to 8 U.S.C.
§ 1182(h), as a spouse or child of a person granted asylum.
Claiming political persecution, Blandino also applied for
asylum, withholding of removal under 8 U.S.C. § 1231(b)(3),
and relief under the CAT.

1

California Penal Code § 288(a) states: “Any person who willfully and
lewdly commits any lewd or lascivious act, including any of the acts
constituting other crimes provided for in Part 1, upon or with the body, or
any part or member thereof, of a child who is under the age of 14 years,
with the intent of arousing, appealing to, or gratifying the lust, passions,
or sexual desires of that person or the child, is guilty of a felony and shall
be punished by imprisonment in the state prison for three, six, or eight
years.”

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The IJ denied Blandino’s applications for cancellation of
removal and for a waiver of inadmissibility in conjunction
with his application for adjustment of status. The IJ also
denied Blandino’s asylum application. However, the IJ
granted Blandino’s application for withholding of removal
under 8 U.S.C. § 1231(b)(3), and relief under the CAT.
The government appealed the IJ’s grant of withholding of
removal under 8 U.S.C. § 1231(b)(3) and the CAT to the
BIA; Blandino did not seek review of the IJ’s denial of
cancellation of removal, waiver of inadmissibility, or asylum.
The BIA remanded for the IJ to determine whether
Blandino’s conviction under Section 288(a) was a
“particularly serious crime” rendering him ineligible for
withholding of removal.2 The BIA instructed the IJ “to
examine the statutory elements of the alien’s crime; if an
offense qualifies as a particularly serious crime based solely
on its elements, then no further inquiry is required and the
application for withholding of removal must be pretermitted.”
On remand, the IJ noted that he had previously found
Blandino’s Section 288(a) conviction not particularly serious
because “respondent honestly believed based upon the
victim’s representation that she was 19 years old.” After
examining the elements of Section 288(a), but without reexamining the facts and circumstances of Blandino’s
conviction, the IJ concluded that Blandino had been
convicted of a particularly serious crime.

2
8 U.S.C. § 1231(b)(3)(B)(ii) provides that an alien may not be removed
to a nation in which his life or freedom would be threatened on a protected
ground unless “the Attorney General decides . . . the alien, having been
convicted by a final judgment of a particularly serious crime is a danger
to the community of the United States.”

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The BIA dismissed Blandino’s appeal, agreeing “with the
Immigration Judge’s determination that the respondent is
ineligible for withholding of removal under the [INA] as his
offense constitutes a ‘particularly serious crime’ per se.”
This petition for review followed.
II. Mootness
DHS removed Blandino to Nicaragua after this court
granted Blandino’s request to lift a temporary stay of
removal. The threshold issue is whether Blandino’s appeal
from the denial of withholding of removal presents a live case
or controversy.
“Mootness is a jurisdictional issue which [this court]
review[s] de novo.” In re Arnold & Baker Farms, 85 F.3d
1415, 1419 (9th Cir. 1996). An individual who has already
been removed can satisfy the case-or-controversy requirement
by raising a direct challenge to the removal order. See, e.g.,
Lopez v. Gonzalez, 549 U.S. 47 (2006). A petitioner can also
establish a live controversy by demonstrating concrete
collateral consequences from the removal. See, e.g., ZegarraGomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003) (holding
that because petitioner’s inability to return to the United
States for twenty years as a result of his removal was “a
concrete disadvantage imposed as a matter of law, the fact of
his deportation did not render the pending habeas petition
moot”).
Blandino claims standing to challenge his removal
because it renders him inadmissible to the United States for
ten years pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii). The
government, relying on Kaur v. Holder, 561 F.3d 957 (9th
Cir. 2009), argues that there is an independent basis for

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Blandino’s inability to reenter the United States, namely, the
agency’s independent determination that his conviction under
Section 288(a) is a crime involving moral turpitude.
In Kaur, the petitioner sought review of a BIA decision
denying him asylum and withholding of removal. Id. at 958.
The BIA had found that Cheema was a danger to the security
of the United States. Id. This court dismissed his petition as
moot because he had “already been deported and he
suffer[ed] no collateral consequences from the withholding
decision.” Id. at 959. He did not fall under the collateral
consequences exception to mootness because his
inadmissibility to the United States was “not a collateral
consequence of the BIA’s denial of withholding of
deportation; rather it [was] a collateral consequence of the
Board’s unchallenged determination under 8 U.S.C.
§ 1182(a)(3)(B)(i)(I) that Cheema is an alien who engaged in
terrorist activities.” Id.
However, there is a significant distinction between
Cheema’s situation and Blandino’s: although there is no
waiver of inadmissibility for aliens who, like Cheema, are
found to have engaged in terrorist activities, see 8 U.S.C.
§ 1182(a)(3)(B)(I), a discretionary waiver is available for
aliens who, like Blandino, have been convicted of crimes
involving moral turpitude, see 8 U.S.C. § 1182(h).
The government correctly notes that Blandino has already
applied for such a waiver, which has been denied. However,
that denial does not preclude him from again seeking the
same waiver in connection with a new visa petition. Rather,
“USCIS does not place a restriction on the number of times
[an alien] may file a Form I-601.” See U.S. Citizenship and
Immigration Services, Centralized Filing and Adjudication

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for Form I-601, Application for Waiver of Grounds of
Inadmissibility. When evaluating a waiver of inadmissibility,
the adjudicator “is required to balance the equities and
adverse matters to determine whether discretion should be
favorably exercised.” Matter of Mendez-Morales, 21 I. & N.
Dec. 296, 301 (BIA 1996). Given the highly discretionary
nature of this determination, it is possible that a future
adjudicator will “balance the equities and adverse matters” in
a manner different than did the original IJ. This is sufficient
to give Blandino “a personal stake” in the litigation. Swaby
v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004).
III.

The BIA’s Authority to Determine that Certain
Offenses Are “Particularly Serious Crimes”
Per Se

Whether the BIA applied the proper legal standard in
determining whether Blandino’s crime was “particularly
serious” raises a question of law. We have jurisdiction over
questions of law raised in petitions for review. 8 U.S.C.
§ 1252(a)(2)(D); see also Miguel-Miguel v. Gonzalez,
500 F.3d 941, 944 (9th Cir. 2007). Although we “cannot
reweigh evidence to determine if the crime was indeed
particularly serious, [we] can determine whether the BIA
applied the correct legal standard.” Afridi v. Gonzalez,
442 F.3d 1212, 1218 (9th Cir. 2006). This Court reviews
both the BIA’s decision and those portions of the IJ’s
decision incorporated by the BIA. See Kalubi v. Ashcroft,
364 F.3d 1134, 1137 n.3 (9th Cir. 2004).
A. Standard of Review and Chevron Deference
We ordinarily review questions of law de novo.
However, the Court must afford deference under Chevron

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U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984), to the BIA’s reasonable interpretations of ambiguous
statutes it is charged with administering. See INS v. AguirreAguirre, 526 U.S. 415, 424 (1999) (citing 8 U.S.C.
§ 1101(a)(3)).
The first step of the Chevron analysis considers whether
“the statute is silent or ambiguous with respect to the specific
issue.” Chevron, 467 U.S. at 843. “If the intent of Congress
is clear, that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously expressed
intent of Congress.” Id. at 842–43. Courts “only defer . . .
to agency interpretations of statutes that, applying the normal
‘tools of statutory construction,’ are ambiguous.” INS v. St.
Cyr, 533 U.S. 289, 320 n.45 (2001) (quoting Chevron,
467 U.S. at 843).
“[I]f the statute is silent or ambiguous with respect to the
specific issue,” the court moves to step two of the Chevron
inquiry, and considers “whether the agency’s answer is based
on a permissible construction of the statute.” Chevron,
467 U.S. at 843. Deference “is especially appropriate in the
immigration context where officials ‘exercise especially
sensitive political functions that implicate questions of
foreign relations.’” Aguirre-Aguirre, 526 U.S. at 425
(quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).
B. Statutory Framework
Applying the “traditional tools of statutory construction,”
we conclude that 8 U.S.C. § 1231(b)(3)(A) is not ambiguous.
We begin with the text and the history of the statute.
Section 1231(b)(3)(A)(ii) provides that an alien may not be

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removed to a nation in which his life or freedom would be
threatened on a protected ground unless “the Attorney
General decides . . . the alien, having been convicted by a
final judgment of a particularly serious crime is a danger to
the community of the United States.” Before 1990, the
Immigration and Nationality Act did not define “particularly
serious crime.” See Miguel-Miguel, 500 F.3d at 945.
In Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982),
the BIA developed a multi-factor test for determining whether
a crime was particularly serious. Frentescu had been
convicted of burglary, sentenced to three months in jail, and
placed on probation for one year. Id. at 245. To determine
whether Frentescu had been convicted of a “particularly
serious crime,” the BIA described the required inquiry as
follows:
While there are crimes which, on their face,
are “particularly serious crimes,” or clearly
are not “particularly serious crimes,”3 the
record in most proceedings will have to be
analyzed on a case-by-case basis. In judging
the seriousness of a crime, we look 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.

3

The BIA did not identify in Matter of Frentescu any crimes that were,
on their face, “particularly serious crimes” or clearly not “particularly
serious crimes.”

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Id. at 247.4 After applying these “Frentescu factors” the BIA
found that Frentescu’s crime was not particularly serious,
because it was a crime against property, he had not been
armed, and had received a relatively short sentence. Id.
In 1990, we held that Frentescu’s case-by-case analysis
was mandatory and that the BIA could not create categories
of per se particularly serious crimes. Beltran-Zavala v. INS,
912 F.2d 1027 (9th Cir. 1990). We explained:
If Congress wanted to erect per se
classifications of crimes precluding
immigration and nationality benefits, it knew
how to do so . . . In contrast, the language of
[the particularly serious crime provision], as
interpreted in Frentescu, commits the BIA to
an analysis of the characteristics and
circumstances of the alien’s conviction.
Id.
Since Beltran-Zavala, Congress has thrice amended the
provision barring withholding of removal for those convicted
of certain crimes. In 1990, Congress amended the INA to
provide that all aggravated felonies were categorically

4

The Frentescu factors have evolved slightly. The BIA no longer
engages “in a separate determination to address whether the alien is a
danger to the community.” Matter of N-A-M-, 24 I. & N. Dec. 336, 342
(BIA 2007); see also Kankamalage v. I.N.S., 335 F.3d 858, 861 n.2 (9th
Cir. 2003) (“Once the INS makes a finding that an offense constitutes a
particularly serious crime, a separate determination of danger to the
community is not required.”).

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particularly serious crimes.5 Immigration Act of 1990, Pub.
L. No. 101-649, § 515 (Nov. 29, 1990). This amendment
effectively overruled Matter of Frentescu and Beltran-Zavala
in part, by precluding case-by-case analysis of an aggravated
felony. See Afridi, 442 F.3d at 1220 n.4.
In 1996, Congress eliminated the categorical rule,
replacing it with a rebuttable presumption that aggravated
felonies were particularly serious crimes. See Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104132, § 413(f) (Apr. 24, 1996). A few months later, however,
Congress again amended the statute. See Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, div. C, sec. 305, § 241 (Sept. 30, 1996)
(codified at 8 U.S.C. § 1231(b)(3)(B)) (“IIRIRA”). This
version, which applies to Blandino’s case, and remains in
effect today, provides in relevant part:
[A]n 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
5

At that time, only a limited number of offenses had been designated
“aggravated felonies.” See Pub. L. No. 100-690, § 7342, 102 Stat. 4181,
4469–70 (1988 version of the INA) (defining “aggravated felony” as:
“murder; any drug trafficking crime . . . or any illicit trafficking in any
firearms or destructive devices”). The Immigration Act of 1990 added
money laundering and crimes of violence for which the term of
imprisonment is at least five years to the list of aggravated felonies. See
Pub. L. No. 101-649, § 501, 104 Stat. 4978, 5048.

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of sentence imposed, an alien has been
convicted of a particularly serious crime.

8 U.S.C. § 1231(b)(3)(B)(iv).
Thus, the current version of the statute establishes a twotiered approach. Aggravated felonies6 for which an alien
receives a sentence of imprisonment of five years or more are
particularly serious crimes per se. This per se class, however,
“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 at the first step of the Chevron inquiry is whether the
statute is ambiguous as to whether the Attorney General has
authority to create additional categories of per se particularly
serious crimes.
We find that Congress has clearly expressed its intent: the
overall structure of the INA compels the conclusion that
Section 1231(b)(3)(B)(iv) establishes but one category of
“per se” particularly serious crimes, and requires the agency
to conduct a case-by-case analysis of convictions falling
outside the category established by Congress. See Illinois
Pub. Telecommc’ns Ass’n v. Federal Commc’ns Comm.,
117 F.3d 555, 568, decision clarified on reh’g, 123 F.3d 693
(D.C. Cir. 1997) (“[U]nder step one of Chevron, we consider
not only the language of the particular statutory provision
under scrutiny, but also the structure and context of the
statutory scheme of which it is a part.”).

6

“As used in immigration law, ‘aggravated felony’ is a term of art
referring to the offenses enumerated in [8 U.S.C.] § 1101(a)(43).”
Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011) (en banc).

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We start by applying the basic statutory construction
principle of expressio unius est exclusio alterius. Under that
principle, the express creation of one category of per se
particularly serious crimes should be understood as the
exclusion of other categorically particularly serious crimes.
See Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885
(9th Cir. 2005) (en banc) (“The doctrine of expressio unius
est exclusio alterius ‘as applied to statutory interpretation
creates a presumption that when a statute designates certain
persons, things, or manners of operation, all omissions should
be understood as exclusions.’”) (quoting Boudette v. Barnette,
923 F.2d 754, 756–57 (9th Cir. 1991)).
This reading is also the most consistent with the structure
of the INA as a whole. Congress put considerable effort into
delineating which crimes should be categorized as
particularly serious per se. The extensive and detailed
definition of the term “aggravated felony” in 8 U.S.C.
§ 1101(a)(43) demonstrates that Congress made specific
decisions about what sorts of crimes should qualify as facially
particularly serious. Cf. Alphonsus v. Holder, 705 F.3d 1031,
1043 (9th Cir. 2013) (“The aggravated felony definitions
serve both to delineate the group of per se particularly serious
crimes and to suggest the types of crimes most likely to be
covered by the statute even when the aggregate sentence is
less than five years.”).
Our conclusion that Section 1231(b)(3)(B)(iv) precludes
the agency’s creation of additional categories of particularly
serious crimes per se is supported by a comparison between
Section 1231, which governs withholding of removal, and
Section 1158, which governs asylum.
Section
1158(b)(2)(A)(ii) prohibits the Attorney General from
granting asylum to an alien “if the Attorney General

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determines that . . . the alien, having been convicted by a final
judgment of a particularly serious crime, constitutes a danger
to the community of the United States.” This language is
nearly identical to the provision at issue in this case, which
provides that an alien shall not be eligible for withholding of
removal “if 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.” 8 U.S.C. § 1231(b)(3)(B)(ii).
There are, however, key differences between the two
provisions. All aggravated felonies are categorically
particularly serious crimes for the purposes of asylum, but
only aggravated felonies for which the alien was sentenced to
at least five years’ imprisonment are categorically particularly
serious for the purposes of withholding of removal. Compare
8 U.S.C. § 1158(b)(2)(B)(i) (asylum) with 8 U.S.C.
§ 1231(b)(3)(B)(iv) (withholding of removal). More
importantly, the provisions differ in describing how the
Attorney General may designate other crimes as “particularly
serious.” The withholding of removal provision allows the
Attorney General to determine “that, notwithstanding the
length of sentence imposed, an alien has been convicted of a
particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B)(iv). In
contrast, the asylum statute allows the Attorney General to
“designate by regulation offenses that will be considered to
be a [particularly serious crime].”
8 U.S.C.
§ 1158(b)(2)(B)(ii).
We noted in Delgado v. Holder that “[t]here is little
question that [the asylum] provision permits the Attorney
General, by regulation, to make particular crimes
categorically particularly serious even though they are not
aggravated felonies.” 648 F.3d 1095, 1106 (9th Cir. 2011)

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(en banc) (emphasis in original). However, the withholding
of removal statute is notably missing an analogue provision
permitting the Attorney General to designate crimes as
categorically particularly serious even if they are not
aggravated felonies for which the defendant has received a
sentence of at least five years.
The current language of both provisions was
simultaneously enacted by Congress in 1996, when it passed
the IIRIRA.7 See Pub. L. No. 104-208, div. C, sec. 305,
§ 241, and sec. 604, § 208 (Sept. 30, 1996). “When
‘Congress includes particular language in one section of a
statute but omits it in another section of the same Act . . . it is
generally presumed that Congress acts intentionally and
purposefully in the disparate inclusion or exclusion.’” Clay
v. United States, 537 U.S. 522, 528–29 (2003) (quoting
Russello v. United States, 464 U.S. 16, 23 (1983)). This
principle bolsters our conclusion that Congress’s failure to
include a provision explicitly granting the Attorney General
the authority to designate offenses as categorically
particularly serious crimes in the withholding of removal
context precludes the agency’s interpretation of the statute as
granting it that authority.
For these reasons, we conclude that Section
1231(b)(3)(B)(iv) unambiguously provides one category of
particularly serious crimes per se, precluding the agency’s
interpretation of the statute as allowing it to create additional
categories of facially particularly serious crimes.

7

Prior to the enactment of the IIRIRA, the asylum statute did not have
a “particularly serious crime” provision; rather, it simply stated that aliens
convicted of aggravated felonies were ineligible for asylum. See 8 U.S.C.
§ 1158 (Apr. 24, 1996).

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C. BIA and Ninth Circuit Precedent

Although we base our conclusion on the text, history, and
structure of the statute, our holding also comports with Ninth
Circuit precedent and with the BIA’s practice of applying the
Frentescu case-by-case analysis in most cases involving
convictions of offenses other than aggravated felonies. In
two en banc decisions, the BIA held that the IIRIRA revived
the Frentescu case-by-case analysis for aggravated felony
convictions resulting in a sentence of less than 5 years. See
Matter of L-S-, 22 I. & N. Dec. 645, 649 (BIA 1999) (en
banc), Matter of S-S-, 22 I. & N. Dec. 458, 463–65 (BIA
1999) (en banc).8 In 2006, this court accordingly reversed a
decision by the BIA for failure to apply the Frentescu factors.
See Afridi, 442 F.3d at 1218. Afridi was convicted under
California Penal Code § 261.5(c) for unlawful intercourse
with a minor who was more than three years younger than the
perpetrator and was sentenced to three years’ probation. Id.
at 1214. The BIA found him statutorily ineligible for
withholding of removal because he had been convicted of a
particularly serious crime. Id. at 1217. This court granted the
petition for review in part noting, “The BIA considered two
of the Frentescu factors, the nature of the conviction and the

8

In Matter of S-S-, the BIA also noted that “Congress easily could have
designated categories of aggravated felonies that it considered to be
particularly serious crimes – either independently or in conjunction with
a specific sentence – but it did not do so.” 22 I. & N. Dec. at 464. After
holding that an individualized consideration of the facts and circumstances
of each conviction for aggravated felonies resulting in less than five years’
imprisonment was necessary, the BIA went on to note, “W e leave for
another day the question of whether, and under what conditions, it might
be appropriate, as a matter of discretion, for the Attorney General to
designate certain offenses as being particularly serious crimes per se.” Id.
at 465 n.7.

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sentence imposed . . . [but] the BIA did not consider the
circumstances and underlying facts of the conviction.” Id. at
1219. We specifically noted that under the most recent
statutory amendments, “aggravated felonies resulting 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.” Id. at 1220 n.4.
The government argues that we should defer to the BIA’s
construction of 8 U.S.C. § 1231 in Matter of N-A-M,
24 I. & N. Dec. 336 (BIA 2007), that it may designate an
offense as a particularly serious crime per se. But, because
we have already resolved this case at the first step of the
Chevron inquiry, we do not move to the second step of the
inquiry, in which we ask whether the agency’s interpretation
is a “permissible construction” of the statute. Chevron,
467 U.S. at 843. We note briefly, however, that Matter of NA-M does not necessarily support the government’s position.
The respondent in that case was convicted of felony
menacing and sentenced to four years’ deferred judgment. 24
I. & N. Dec. at 337. The BIA stated that where “a conviction
is not for an aggravated felony for which the alien has been
sentenced to an aggregate term of imprisonment of at least 5
years, we examine the nature of the conviction, the type of
sentence imposed, and the circumstances and underlying facts
of the conviction.” Id. at 342. The agency noted in dictum
that “[o]n some occasions, we have focused exclusively on
the elements of the offense,”9 but “we have generally

9
The BIA cited Matter of Garcia-Garrocho, 19 I. & N. Dec. 423,
425–26 (BIA 1986), in support of this proposition. The applicant in
Garcia-Garrocho had been convicted of first-degree burglary in violation
of New York Penal Law § 140.30. Id. at 425. The BIA stated that certain
crimes are “inherently” or “per se” particularly serious, and require “no

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examined a variety of factors and found that the consideration
of the individual facts and circumstances is appropriate.” Id.
(internal quotations omitted). And, although stating that “that
the respondent’s offense is a particularly serious crime based
solely on its elements,” the BIA nonetheless examined the
individualized characteristics of the offense, including the
fact that the offense was a crime against a person, that the
respondent was required to register as a sex offender, and the
statement in support of the warrantless arrest describing the
nature of the respondent’s crime. Id. at 343.
We acknowledge that two other circuits have assumed,
without explicitly deciding, that the BIA can make the
“particularly serious crime” determination based solely on the
elements of the offense.10 However, no Ninth Circuit
decision so holds, and our considered analysis of the statute
at issue compels a contrary conclusion.

further inquiry into the nature and circumstances of the underlying
conviction,” id., and held that “the applicant’s conviction for burglary in
the first degree is within the category of crimes that are per se ‘particularly
serious.’” Id. at 426. However, Garcia-Garrocho predates the 1996
passage of IIRIRA, which established the two-tier approach to
determining which offenses are particularly serious crimes.
10

In Hamama v. INS, which was decided several months before the
“particularly serious crimes” provision at issue in this case was enacted by
the IIRIRA, the Sixth Circuit stated that the BIA “has the prerogative to
declare a crime particularly serious without examining each and every
Frentescu factor.” 78 F.3d 233, 240 (6th Cir. 1996). In Lapaix v. U.S.
Attorney General, the Eleventh Circuit stated that in making the
“particularly serious crime” determination, the IJ is “free to rely solely on
the elements of the offense,” but that “IJ’s generally consider additional
evidence” and apply the Frentescu factors. 605 F.3d 1138, 1143 (11th
Cir. 2010).

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IV.

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Substantial Evidence Supported the BIA’s
Finding that Blandino Failed to Establish a
Clear Probability of Torture

We affirm the BIA’s denial of withholding of removal
under the CAT because Blandino has not established a clear
probability that he would be tortured if he returned to
Nicaragua. This court reviews “for substantial evidence the
factual findings underlying the . . . BIA’s determination that
[the applicant] was not eligible for deferral of removal under
the CAT.” Arbid v. Holder, 674 F.3d 1138, 1143 (9th Cir.
2012). Under this standard, “administrative findings of fact
are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”
8 U.S.C.
§ 1252(b)(4)(B).
In its initial decision to grant Blandino relief under CAT,
the IJ specifically identified the past persecution of
Blandino’s family as grounds for granting relief. On appeal,
the BIA found that the record as a whole provided insufficient
evidence to establish that it was “more likely than not” that
Blandino would be tortured by the Nicaraguan government,
and noted that rather than presenting hard evidence of a
probability that he would be tortured, Blandino merely
presented a series of worst-case scenarios. Furthermore, he
had not presented evidence that similarly-situated individuals
are being tortured by Nicaraguan officials. Given the
deference this court must afford to the BIA’s findings of fact,
we affirm its decision to deny CAT relief to Blandino.
Conclusion
For the foregoing reasons, we GRANT Blandino’s
petition for review of the BIA’s determination that he

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committed a particularly serious crime, and we REMAND
with instructions that the agency engage in a case-specific
analysis in accordance with Matter of Frentescu to determine
whether Blandino’s conviction under Section 288(a) is a
particularly serious crime, rendering him statutorily ineligible
for withholding of removal.
We DENY Blandino’s petition for review of the BIA’s
denial of his claim for relief under the Convention Against
Torture.
All pending motions in this case are DENIED.
GRANTED IN PART, DENIED IN PART, AND
REMANDED.

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