Torres-Valdivias v. Holder, No. 11-70532 (9th Cir. 2014)
Annotate this CasePetitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision upholding a final order of removal against him. The BIA held that petitioner's sexual battery conviction was a violent or dangerous crime and, on that basis, applied the Matter of Jean standard to guide the exercise of its discretion. The court upheld the BIA's decision not to apply the categorical approach in the context of its discretionary decisions, such as here; where the correct legal standard is applied, the ultimate determination of whether a crime was violent or dangerous under Matter of Jean is discretionary and unreviewable under 8 U.S.C. 1252(a)(2)(B); and the court upheld the BIA's extension of the Matter of Jean standard to adjustment of status applications under 8 U.S.C. 1255. Accordingly, the court dismissed in part and denied in part the petition for review.
Court Description: Immigration. The panel dismissed in part and denied in part Jose Guadalupe Torres-Valdivias’s petition for review of the Board of Immigration Appeals’ decision denying his application for adjustment of status. The panel upheld the Board of Immigration Appeals’ decision not to apply the categorical approach when making a discretionary determination such as the one here regarding whether petitioner’s sexual battery conviction triggered the standard under Matter of Jean, 23 I. & N. Dec. 373 (Att’y Gen. 2002) (establishing a heightened standard that aliens convicted of violent or dangerous crimes must satisfy for discretionary relief). The panel held that the determination of whether a crime is violent or dangerous under Matter of Jean is discretionary and therefore unreviewable under 8 U.S.C. § 1252(a)(2)(B). The panel upheld the BIA’s extension of the Matter of Jean standard to applications for adjustment under 8 U.S.C. § 1255(i). The panel also held that Matter of Jean applies to cases previously governed by Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970) (the BIA’s precedent decision addressing the proper standard in § 1255 adjustment cases), provided that the alien was convicted of a violent or dangerous crime.
The court issued a subsequent related opinion or order on May 8, 2015.
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