Delgado

Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge REINHARDT.

OPINION

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 affirmed the immigration judge’s (IJ) ruling that Delgado was ineligible for asylum, withholding of removal and withholding under the Convention Against Torture (CAT) because he had been “convicted of a particularly serious crime” — driving under the influence (DUI). 8 U.S.C. §§ 1158 (b)(2)(A)(ii), 1231(b)(3)(B)(ii). The BIA also ruled that Delgado was ineligible for deferral of removal under CAT because he failed to prove a likelihood of future torture. We grant the petition in part, deny it in part and remand to the BIA. 1 We hold as follows:

First, we hold that we have jurisdiction to review the BIA’s determination that an alien has been convicted of a “particularly serious crime” and is therefore ineligible for withholding of removal. We held otherwise in Matsuk v. INS, 247 F.3d 999 (9th Cir.2001), relying on 8 U.S.C. § 1252 (a)(2)(B)(ii), which strips us of jurisdiction to review “any ... decision or action of the Attorney…

concurring in part and concurring in the judgment:

I join parts I, II.A, II.B, II.E, and II.F of the majority opinion. I also agree with *1109 most of parts II.C and II.D. 1 write separately in order to explain why I believe that the BIA should hold on remand that Delgado’s DUI convictions were not particularly serious crimes.

It may help to put matters in perspective if I first explain the consequences of determining that a given offense constitutes a particularly serious crime. Not only does such a determination override the universal rule concerning refugees— that an alien who faces persecution or even death will not be returned to the land controlled by his persecutors — but it strips the Attorney General of all discretion to determine whether, considering all the circumstances, the individual who has committed an offense should be permitted to remain in this country. If an alien’s offense is deemed particularly serious, the Attorney General loses his ability to consider a host of relevant discretionary factors: whether the alien has served in our Armed Forces, whether he has been gainfully employed and for how long, whether he has paid his taxes, whether he is the sole…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERNAN ISMAEL DELGADO, 

Petitioner, No. 03-74442 v.  Agency No.

A078-461-226

ERIC H. HOLDER JR., Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted December 16, 2010—Pasadena, California

Filed August 19, 2011

Before: Alex Kozinski, Chief Judge, William C. Canby, Stephen Reinhardt, Diarmuid F. O’Scannlain, M. Margaret McKeown, Raymond C. Fisher, Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, Milan D. Smith, Jr. and N. Randy Smith, Circuit Judges.

Opinion by Judge Fisher; Partial Concurrence and Partial Dissent by Judge Reinhardt

11057 DELGADO v. HOLDER 11061

COUNSEL

Niels W. Frenzen (argued), University of Southern California Gould School of Law, Los Angeles, California, and J. Thomas Logan, Los Angeles, California, for the petitioner.

Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, and Erica B. Miles (argued), Attorney, U.S. Department of Justice, Washington, D.C., for the respondent.

Stephen…