Doi Phan v. Eric Holder, Jr.

MEMORANDUM

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 .

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, 352 Fed. Appx. 145 (9th Cir.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 146.

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…