Anthony Alphonsus v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY ALOYSIUS ALPHONSUS, No. 10-73298 Petitioner, Agency No. v. A070-942-161

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

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted May 8, 2012—Pasadena, California

Filed January 18, 2013

Before: Harry Pregerson, Susan P. Graber, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon; Partial Concurrence and Partial Dissent by Judge Graber ALPHONSUS V . HOLDER

SUMMARY*

Immigration

The panel granted in part and denied in part a petition for review of the Board of Immigration Appeals’ denial of an application for withholding of removal and protection under the Convention Against Torture to a native and citizen of Bangladesh.

The panel held that it had jurisdiction to review the Board’s particularly serious crime determination under 8 U.S.C. § 1252(a)(2)(D) because petitioner’s challenges were premised on constitutional and legal considerations. The panel rejected petitioner’s facial constitutional challenge to…

Opinion by Judge BERZON; Partial Concurrence and Partial Dissent by Judge GRABER.

OPINION

Our case concerns the “particularly serious crime” concept embodied in our immigration statutes, recently the subject of an extensive opinion by an en banc panel of this Court. See Delgado v. Holder, 648 F.3d 1095 (9th Cir.2011) (en banc). After deciding various other issues, Delgado remanded the case to the Board of Immigration Appeals (“BIA” or “Board”), concluding that the BIA had not adequately explained why the crime in that case fit into the “particularly serious crime” category and therefore barred withholding of removal relief (and asylum relief, not here at issue) for the otherwise removable petitioner in that case. We reach a similar result here, remanding after reviewing in some detail the BIA’s “particularly serious crime” precedents and determining that the Board has not adequately explained how the result in this case fits within any current framework created by those precedents.

More specifically, Anthony Aloysius Al-phonsus petitions for review of a BIA decision ordering him removed to his native Bangladesh. The BIA affirmed the immigration judge’s (“IJ”) determination that…

concurring in part and dissenting in part:

I dissent from Part IILC.ii of the panel’s decision, but concur as to the other parts and concur in the result. I write separately for two reasons.

1. Under Ninth Circuit precedent, we have jurisdiction to review the BIA’s denial of Petitioner’s claim for relief under CAT, even though 8 U.S.C. § 1252 (a)(2)(C) strips federal courts of jurisdiction to review an order of removal against an alien who is removable by reason of having committed an aggravated felony, except as to legal or constitutional questions. Our court has read an additional exception into the statute’s otherwise unequivocal text, under which we review such orders if the BIA did not rest its decision on the fact of the aggravated felony but instead denied relief from removal on the merits. That interpretation of § 1252(a)(2)(C) ignores the statute’s text and conflicts with the views of at least four of our sister circuits.

I have discussed my objection to the judicially fashioned “on the merits” exception at greater length in my concurring opinion in Pechenkov v. Holder, 705 F.3d 444, 449-52 (9th Cir.2012). In Pechenkov , this exception did not apply, so its validity…