Alphonsus v. Holder, Jr., No. 10-73298 (9th Cir. 2013)
Annotate this CasePetitioner, a native and citizen of Bangladesh, petitioned for review of the BIA's decision affirming the IJ's determination that petitioner was ineligible for withholding of removal and withholding under the Convention Against Torture (CAT) because his conviction for resisting arrest constituted a particularly serious crime. The court held that it had jurisdiction over petitioner's challenges, which were premised on constitutional and legal considerations, pursuant to 8 U.S.C. 1252(a)(2)(C). Because the BIA had not adequately explained its reasons for designating petitioner's conviction a particularly serious crime, the court granted the petition with respect to the particularly serious crime determination and remanded to the BIA for an appropriate explanation. As to petitioner's CAT claim for deferral of removal, the court denied the petition.
Court Description: 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 the particularly serious crime statute, but held that the Board abused its discretion in concluding that petitioner’s conviction for resisting arrest, in violation of Cal. Penal Code § 69, constituted a particularly serious crime, because the Board failed to adequately explain how the result in this case fits within the statutory language or any current framework created by Board precedent. The panel remanded for further consideration and explanation of the particularly serious crime issue. The panel held that petitioner failed to establish a clear probability of torture in Bangladesh due to his Christian religion. Judge Graber dissented from the portion of the majority opinion rejecting the Board’s rationale that petitioner’s crime was particularly serious because it created a meaningful risk of harm to others. Judge Graber concurred as to the other parts of the opinion, and the result. Judge Graber also wrote separately to suggest that the court should reconsider en banc its exception to 8 U.S.C. § 1252(a)(2)(C)’s jurisdiction stripping provisions for aggravated felons where the Board denied CAT relief on the merits.
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