Konou v. Holder, No. 09-71454 (9th Cir. 2014)Annotate this Case
Petitioner, a native and citizen of the Marshall Islands, sought review of the BIA's order reversing the IJ's finding that he was eligible for relief under the Convention Against Torture (CAT). Petitioner fled the Marshall Islands as a teenager after being sexually assaulted and beaten as a homeless, homosexual child. The authorities there allegedly did nothing to intervene. Petitioner was later convicted in California state court of assault with a deadly weapon other than a firearm and of battery with serious bodily injury following a fight with his then-boyfriend. The court concluded that the record contained substantial evidence supporting the BIA's conclusion that petitioner would not likely be subjected to torture based on his sexual orientation if removed to the Marshall Islands; the BIA's interpretation of the State Department Report, which found that the Marshall Islands have no enforced proscriptions on homosexuality, was entitled to deference; and the BIA was not required to presume that petitioner would be tortured again because of his own credible testimony that he had been subjected to torture as a homeless child. The court also concluded that the BIA did not abuse its discretion in determining that petitioner's assault-and-battery convictions were particularly serious crimes. Just because a sentencing enhancement cannot be considered for the purpose of determining whether the crime is an aggravated felony does not imply that it cannot be considered for purposes of determining whether the crime is particularly serious. The BIA adopted the IJ's reasoning. The court concluded, in light of Delgado v. Holder, that the IJ properly considered the two-year enhancement under the Frentescu factors. Accordingly, the court denied the petition for review.