FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIRGILIO ANAYA-ORTIZ, 

Petitioner, No. 03-74666

v. Agency No. 

M A092-962-367 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

August 6, 2007—Pasadena, California

Filed January 27, 2009

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit

Judges, and James K. Singleton,* Senior District Judge.

Opinion by Judge Ikuta

*The Honorable James K. Singleton, United States District Judge for

the District of Alaska, sitting by designation. 

889
COUNSEL

Gary Finn, Indio, California, for the petitioner.

Jennifer J. Keeney and Melissa Neiman-Kelting, Washington,

D.C., for the respondent. 

OPINION

IKUTA, Circuit Judge: 

Virgilio Anaya-Ortiz (Anaya), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal and ordering him

removed to Mexico. We deny the petition.

I

According to an abstract of judgment dated June 4, 2001,

Anaya pleaded guilty to a violation of California Penal Code

§ 12021(a)(1) for the crime of “POSSESSION OF A FIREARM BY A FELON” on March 21, 2001.1

 He was sentenced

1California Penal Code § 12021(a)(1) states: 

Any person who has been convicted of a felony under the laws

ANAYA-ORTIZ v. MUKASEY 893
to two years and eight months of imprisonment. The information under which he was charged stated that the predicate

offense for the felon-in-possession violation was a prior conviction for “Driving Under the Influence & Causing Injury, a

felony, in violation of Vehicle Code section 23153(b).” 

On August 29, 2002, the former Immigration and Naturalization Service (INS) placed Anaya in removal proceedings.

The INS charged that Anaya was removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii), which states that “[a]ny alien who is convicted of an aggravated felony at any time after admission is

deportable.” For purposes of immigration law, an “aggravated

felony” is an offense defined in 8 U.S.C. § 1101(a)(43). Section 1101(a)(43)(E)(ii) defines “aggravated felony” as including an offense “described in” the federal felon-in-possession

statute, 18 U.S.C. § 922(g)(1).2 A violation of § 922(g)(1)

includes the following elements relevant to this case: (1) the

person previously has been convicted of a crime punishable

by a term of imprisonment of more than one year; and (2) the

person has possessed any firearm “in or affecting” interstate

or foreign commerce.3 The INS charged that Anaya’s convicof the United States, the State of California, or any other state,

government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6 [specified offenses involving the violent use of a firearm], or who is addicted to the use of

any narcotic drug, and who owns, purchases, receives, or has in

his or her possession or under his or her custody or control any

firearm is guilty of a felony. 

2

8 U.S.C. § 1101(a)(43) states: “The term ‘aggravated felony’ means

. . . (E) an offense described in . . . (ii) section 922(g)(1), (2), (3), (4), or

(5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms

offenses).” 

3

18 U.S.C. § 922(g)(1) provides: 

(g) It shall be unlawful for any person— 

(1) who has been convicted in any court of, a crime punishable

by imprisonment for a term exceeding one year; 

. . . 

894 ANAYA-ORTIZ v. MUKASEY
tion of being a felon in possession of a firearm under California Penal Code § 12021(a)(1) met the description of the

federal felon-in-possession offense in § 922(g)(1), and therefore qualified as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(E)(ii). 

At Anaya’s initial removal hearing, the IJ agreed with the

INS’s position and found Anaya removable as charged. The

IJ also determined that Anaya was ineligible for cancellation

of removal, relief available to certain lawful permanent residents who would otherwise be removable, because Anaya had

been convicted of an aggravated felony. See 8 U.S.C. § 1229b.4

The IJ granted Anaya a continuance to allow him to apply for

withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A).5

After receiving Anaya’s application for withholding of

removal, the IJ reconvened a hearing on March 10, 2003 to

to ship or transport in interstate or foreign commerce, or possess

in or affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce. 

4

8 U.S.C. § 1229b(a) states: 

The Attorney General may cancel removal in the case of an alien

who is inadmissible or deportable from the United States if the

alien— 

(1) has been an alien lawfully admitted for permanent residence

for not less than 5 years, 

(2) has resided in the United States continuously for 7 years

after having been admitted in any status, and 

(3) has not been convicted of any aggravated felony. 

5Section 1231(b)(3)(A) provides that “the Attorney General may not

remove an alien to a country if the Attorney General decides that the

alien’s life or freedom would be threatened in that country because of the

alien’s race, religion, nationality, membership in a particular social group,

or political opinion.” 

ANAYA-ORTIZ v. MUKASEY 895
determine Anaya’s eligibility.6

 At that hearing, Anaya admitted that he had pleaded guilty to being a felon in possession

of a firearm on March 21, 2001. He testified that the predicate

offense to his felon-in-possession conviction was a drunkdriving conviction, for which he was sentenced to one year in

jail. According to his testimony before the IJ, Anaya drove

into a house while driving drunk. The collision caused part of

the house’s sheetrock wall to collapse on an elderly woman

who lived inside, causing injuries to her shoulder and leg.

Anaya testified that his victim “ended up being okay right

away afterwards because the judge even mentioned to me, he

said that it, if there had been some kind of injury, you know,

and something more serious to her I would have gotten some

kind of cell sentence.” 

On the basis of Anaya’s testimony regarding his drunkdriving conviction, the IJ held that Anaya had been convicted

of a “particularly serious crime” and was therefore ineligible

for withholding of removal under 8 U.S.C.

§ 1231(b)(3)(B)(ii). The IJ also held that Anaya was ineligible

for relief under the Convention Against Torture (CAT), 8

C.F.R. § 1208.16-18, and ordered him removed from the

United States. 

Anaya appealed this decision to the BIA. On November 21,

2003, the BIA affirmed the IJ’s decision. The BIA concluded

that Anaya was removable as an aggravated felon and that he

had committed a “particularly serious crime” because “after

drinking alcohol to the point where he was intoxicated, [he]

began driving a motor vehicle in reckless disregard for persons or property whereupon he drove his car into the home of

his victim causing property damage and bodily injury.” After

rejecting Anaya’s remaining arguments, the BIA dismissed

Anaya’s appeal. Anaya timely filed a petition for review. 

6An alien is ineligible for withholding of removal if “the alien, having

been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States.” 8 U.S.C. § 1231(b)(3)(B)(ii).

896 ANAYA-ORTIZ v. MUKASEY
Anaya raises two arguments before us: (1) that he is not

removable because his felon-in-possession conviction does

not constitute a conviction of an aggravated felony; and (2)

that he is eligible for withholding of removal because his

drunk-driving conviction does not constitute a conviction of

a “particularly serious crime.” We address each in turn. 

II

Anaya’s first argument is that the IJ and BIA erred in holding that he was removable as an aggravated felon under 8

U.S.C. § 1101(a)(43)(E)(ii). Specifically, he argues that his

conviction for being a felon in possession of a firearm under

California Penal Code § 12021(a)(1) does not qualify as an

“aggravated felony” conviction for immigration purposes. 

Following the framework articulated in Taylor v. United

States, 495 U.S. 575 (1990), we answer this question in two

steps. First, we “compare the elements of the statute of conviction with a federal definition of the crime to determine

whether conduct proscribed by the statute is broader than the

generic federal definition.” Quintero-Salazar v. Keisler, 506

F.3d 688, 692 (9th Cir. 2007). We refer to this step in our

analysis as the “categorical approach,” because in this step we

determine whether the statute of conviction categorically

qualifies as a generic federal crime. Second, if the statute of

conviction criminalizes a broader range of conduct than the

federal generic crime, we use the modified categorical

approach, which requires us to review the record of conviction to determine whether a defendant was necessarily convicted of the elements of the federal generic crime. See

Shepard v. United States, 544 U.S. 13, 20-21 (2005). In making this determination, we may consider only “the terms of

the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the defendant, or

. . . some comparable judicial record of this information.” Id.

at 26. A “comparable judicial record” includes a document

ANAYA-ORTIZ v. MUKASEY 897
(such as a minute order) prepared by a neutral officer of the

court, provided that the defendant has the right to examine the

document and challenge its accuracy. See United States v.

Snellenberger, 548 F.3d 699, 2008 WL 4717190, *2 (9th Cir.

Oct. 28, 2008) (en banc) (per curiam). 

[1] Anaya first contends that the state statute of conviction,

California Penal Code § 12021(a)(1), cannot qualify as the

generic federal offense of being a felon in possession of a

firearm, 18 U.S.C. § 922(g)(1), under the categorical

approach. Anaya argues that § 922(g)(1) includes an

interstate-commerce element not present in the state offense.

See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th

Cir. 2007) (en banc). But this argument is foreclosed by

United States v. Castillo-Rivera, which held that a state crime

of conviction need not have the interstate-commerce element

contained in 18 U.S.C. § 922(g)(1) to qualify as an aggravated

felony under § 1101(a)(43)(E)(ii). See United States v.

Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001). While

Castillo-Rivera “dealt with categorizing a prior conviction for

purposes of sentencing in a criminal case, the [Supreme]

Court has noted that where a statute ‘has both criminal and

noncriminal applications,’ the statute should be consistently

interpreted in both criminal and noncriminal, i.e., immigration, applications.” Martinez-Perez v. Gonzalez, 417 F.3d

1022, 1028 (9th Cir. 2005) (quoting Leocal v. Ashcroft, 543

U.S. 1, 11 n.8 (2004)); see also United States v. FigueroaOcampo, 494 F.3d 1211, 1216 (9th Cir. 2007) (noting that

“aggravated felony” has the same meaning under the INA and

the Sentencing Guidelines). 

[2] After rejecting the petitioner’s interstate-commerce

argument in Castillo-Rivera, we explained that, “[t]o the

extent that the full range of conduct encompassed by CPC

§ 12021(a) may not constitute an aggravated felony as an

offense described in 18 U.S.C. § 922(g)(1) (e.g., § 12021(a)

appears to include the possession of a firearm by an individual

convicted of specified misdemeanors, as well as by one ‘who

898 ANAYA-ORTIZ v. MUKASEY
is addicted to the use of any narcotic drug’), the court may

follow a ‘modified categorical approach.’ ” 244 F.3d at 1022.

We follow the same course here. 

[3] Accordingly, we next address Anaya’s contention that

his record of conviction does not establish that he was necessarily convicted of all the elements of § 922(g)(1) under the

modified categorical approach. We conclude that it does.

Anaya’s abstract of judgment states that he was convicted of

the crime of “POSSESSION OF A FIREARM BY A

FELON” and sentenced to a term of imprisonment of two

years and eight months, which is sufficient under the modified

categorical approach to confirm that he was necessarily convicted of the elements of the generic felon-in-possession

offense, § 922(g)(1). See Castillo-Rivera, 244 F.3d at 1023. In

light of Snellenberger, we may rely on Anaya’s abstract of

judgment in making this determination. Like the minute order

at issue in Snellenberger, an abstract of judgment is not “a

secret document.” 2008 WL 4717190 at *2. Under California

law, an abstract of judgment is “a contemporaneous, statutorily sanctioned, officially prepared clerical record of the

conviction and sentence.” People v. Delgado, 183 P.3d 1226,

1234 (Cal. 2008) (emphasis omitted). It is ordinarily prepared

by the clerk of court to “digest or summarize” a judgment of

conviction and for use as the commitment order. People v.

Mitchell, 26 P.3d 1040, 1042 (Cal. 2001); Cal. Penal Code

§ 1213(a) (requiring, in most cases, that a minute order or

abstract of judgment be furnished to the officer charged with

executing a court’s probationary order or judgment). A court

may correct any errors in the abstract of judgment “on its own

motion or upon the application of the parties.” Mitchell, 26

P.3d at 1042; accord People v. Morelos, 168 Cal. App. 4th

758, 768 (Cal. Ct. App. 2008) (correcting an abstract of judgment upon application by the defendant); People v. Garcia,

168 Cal. App. 4th 261, 292 (Cal. Ct. App. 2008) (same).

Because an abstract of judgment, like a minute order, “is prepared by a neutral officer of the court,” and because a defendant has “the right to examine and challenge its content,”

ANAYA-ORTIZ v. MUKASEY 899
Snellenberger, 2008 WL 4717190 at *2, we may rely on it

when applying the modified categorical approach. Accordingly, Anaya’s conviction under California Penal Code

§ 12021(a)(1) qualifies as an “aggravated felony” conviction

for immigration purposes. 

[4] Anaya also argues that the judgment in his case does

not contain the “critical phrase ‘as charged in the Information,’ ” and so it does not establish that his prior crime was an

aggravated felony. Anaya quotes our decision in United States

v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), where we

explained that “[i]n order to identify a conviction as the

generic offense through the modified categorical approach,

when the record of conviction comprises only the indictment

and the judgment, the judgment must contain the critical

phrase ‘as charged in the Information.’ ” Id. at 1087. In Vidal,

the defendant’s judgment stated that he was convicted of

unlawfully driving or taking a vehicle and receiving stolen

property, but did not provide sufficient information to establish that he had been convicted of each element of the federal

generic crime. Id. at 1075-77. Although the criminal complaint provided sufficient facts to establish that the defendant

had been charged with each element of the generic crime, we

held that we could not rely on the information in the complaint unless it had been incorporated by reference in the

judgment. Id. at 1087-88 (holding that “charging documents

are insufficient alone to prove the facts to which a defendant

admitted” (alterations and internal quotation marks omitted)).

Vidal does not help Anaya, however, because here the

abstract of judgment provides sufficient information to establish that he was convicted of each element of the generic federal crime, without reference to his charging document.

Because under Snellenberger the information in the abstract

of judgment is sufficient to establish that Anaya was convicted of all the elements of an “aggravated felony” under

§ 1101(a)(43)(E)(ii), the BIA correctly held him removable

under § 1227(a)(2)(A)(iii). 

900 ANAYA-ORTIZ v. MUKASEY
III

Anaya’s next claim is that the IJ and BIA erred in holding

that he was not eligible for withholding of removal, because

his drunk-driving conviction does not constitute a conviction

of a “particularly serious crime” under 8 U.S.C.

§ 1231(b)(3)(B)(ii). He asserts that the BIA erred as a matter

of law when determining whether his drunk-driving conviction was a “particularly serious crime” by considering the

wrong factors and by basing its determination on the testimony Anaya gave at his removal hearing. 

An alien is ineligible for withholding of removal “if the

Attorney General decides that . . . (ii) the alien, having been

convicted by final judgment of a particularly serious crime is

a danger to the community of the United States.” 8 U.S.C.

§ 1231(b)(3)(B). Although 8 U.S.C. § 1252(a)(2)(B)(ii)

deprives us of jurisdiction to evaluate discretionary decisions

by the Attorney General, § 1252(a)(2)(D) preserves our jurisdiction to review “questions of law raised upon a petition for

review.” As a result, “[w]hile we cannot reweigh evidence to

determine if the crime was indeed particularly serious, we can

determine whether the BIA applied the correct legal standard

in making its determination.” Afridi v. Gonzales, 442 F.3d

1212, 1218 (9th Cir. 2006), overruled in part on other

grounds by Estrada-Espinoza v. Mukasey, ___ F.3d ___, 2008

WL 4615681, *9 n.15 (9th Cir. Oct. 20, 2008) (en banc).

Whether the BIA and IJ relied on improper evidence in making the “particularly serious crime” determination is one such

question of law that we have jurisdiction to review. See Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007).

A

When we “confront[ ] questions implicating an agency’s

construction of the statute which it administers,” the Supreme

Court has directed us to “appl[y] the principles of deference

described in Chevron U.S.A., Inc. v. Natural Resources

ANAYA-ORTIZ v. MUKASEY 901
Defense Council, Inc., 467 U.S. 837, 842 (1984).” INS v.

Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (internal quotation

marks omitted). Accordingly, we ask “whether the statute is

silent or ambiguous with respect to the specific issue before

it.” Id. (internal quotation marks omitted). If there is “binding

agency precedent on-point (either in the form of a regulation

or a published BIA case),” Kharana v. Gonzales, 487 F.3d

1280, 1283 n.4 (9th Cir. 2007), we will defer to that precedent

so long as it is “reasonable,” see Morales, 478 F.3d at 982;

see also Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.

2004) (noting that we give deference “to the BIA’s interpretation [of the INA] unless that interpretation is contrary to the

plain and sensible meaning of the statute”). Moreover, a “circuit court must apply Chevron deference to an agency’s interpretation of a statute regardless of the circuit court’s contrary

precedent, provided that the court’s earlier precedent was an

interpretation of a statutory ambiguity.” Duran Gonzales v.

DHS, 508 F.3d 1227, 1235-36 (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,

980-82 (2005)). As Brand X explained, “[o]nly a judicial precedent holding that the statute unambiguously forecloses the

agency’s interpretation, and therefore contains no gap for the

agency to fill, displaces a conflicting agency construction.”

545 U.S. at 982-83. 

[5] In Morales, we held that the BIA’s interpretation of

“what an IJ may refer to in deciding whether a prior offense

is a particularly serious crime” was entitled to deference

under Chevron and Aguirre-Aguirre. We based this holding

on our conclusion that the INA is “silent regarding the basis

for determining whether a conviction is for a particularly serious crime,” and that the BIA’s interpretation in Matter of

L—S—, 22 I. & N. Dec. 645, 651 (BIA 1999), was “based on

a reasonable—and therefore permissible—construction of the

statute.” Morales, 478 F.3d at 982. Deferring to Matter of L

—S—, we held “that the particularly serious crime determination . . . may be made by looking only to the record of conviction and sentencing information.” Id. We noted that the record

902 ANAYA-ORTIZ v. MUKASEY
of conviction “consists of a narrow, specified set of documents that includes the state charging document, a signed plea

agreement, jury instructions, guilty pleas, transcripts of a plea

proceeding and the judgment,” and that it “may also include

any explicit factual finding by the trial judge to which the

defendant assented.” Id. (internal quotation marks and citations omitted). 

[6] Citing Morales, Anaya argues that the IJ and BIA erred

in relying solely on his removal-hearing testimony in holding

that he had been convicted of a “particularly serious crime.”

But since our decision in Morales, the BIA has clarified its

interpretation of what evidence “an IJ may refer to in deciding

whether a prior offense is a particularly serious crime.” 478

F.3d at 980. In a more recent precedential decision, Matter of

N—A—M—, the BIA discussed the “particularly serious

crime” determination under § 1231(b)(3)(B)(ii) and explained

that 

once the elements of the offense are examined and

found to potentially bring the offense within the

ambit of a particularly serious crime, all reliable

information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information, as well

as other information outside the confines of a record

of conviction. 

24 I. & N. Dec. 336, 342 (BIA 2007). The BIA explained that,

in its judgment, our decision in Morales had misconstrued its

decision in Matter of L—S—, which, although allowing consideration of the record of conviction and sentencing information, “did not prohibit the examination of other evidence or

indicate that only conviction records and sentencing information could be used.” Id. According to the BIA, the limited

inquiry that Morales erroneously held was required by Matter

of L—S— would be inappropriate given the discretionary

nature of the “particularly serious crime” determination: 

ANAYA-ORTIZ v. MUKASEY 903
It has been our practice to allow both parties to

explain and introduce evidence as to why a crime is

particularly serious or not. We see no reason to

exclude otherwise reliable information from consideration in an analysis of a particularly serious crime

once the nature of the crime, as measured by its elements, brings it within the range of a “particularly

serious” offense. 

Id. The BIA therefore upheld an IJ’s “particularly serious

crime” determination based on the facts alleged in a “Statement in Support of Warrantless Arrest,” as well as a judgment

of conviction for “felony menacing” under Colorado law. Id.

at 337 (“Under section 18-3-206(1) of the Colorado Revised

Statutes, a person ‘commits the crime of menacing if, by any

threat or physical action, he or she knowingly places or

attempts to place another person in fear of imminent serious

bodily injury.’ ”). 

As noted in Morales, we must defer to the BIA’s statutory

interpretation regarding what evidence may be considered in

deciding whether a prior offense is a particularly serious

crime, Morales, 478 F.3d at 982, so long as the BIA’s interpretation “is based on a reasonable—and therefore

permissible—construction of the statute.” Id. Under Brand X,

we must apply Chevron deference to the BIA’s most recent

interpretation of § 1231(b)(3)(B)(ii) in Matter of N—A—M—

if it is reasonable, regardless of our prior decision in Morales.

See Gonzales, 508 F.3d at 1239. 

[7] We now hold that the BIA’s interpretation of the evidence that may be considered in a “particularly serious crime”

determination, as set forth in Matter of N—A—M—, is reasonable. An IJ ordinarily considers any relevant evidence

adduced at a removal hearing, 8 C.F.R. § 1240.1(c), and nothing in the language of the “particularly serious crime” provisions in the INA limits the scope of permissible evidence. See

8 U.S.C. §§ 1158(b)(2)(A)(ii) & 1231(b)(3)(B)(ii). In under904 ANAYA-ORTIZ v. MUKASEY
taking a case-specific consideration of whether the circumstances of an alien’s prior crime made it “particularly

serious,” see Afridi, 442 F.3d at 1222, it is reasonable for the

BIA to maintain its practice of “allow[ing] both parties to

explain and introduce evidence as to why a crime is particularly serious or not.” Matter of N—A—M—, 24 I. & N. Dec.

at 344. We therefore defer to the BIA’s reasonable conclusion

that “all reliable information may be considered in making a

particularly serious crime determination, including the conviction records and sentencing information, as well as other

information outside the confines of a record of conviction.”

Id. at 342. We are bound by Brand X to apply the BIA’s interpretation in Matter of N—A—M—, rather than the interpretation in Matter of L—S— to which we previously deferred in

Morales. See Gonzales, 508 F.3d at 1236 n.7.

B

[8] We now address whether a “particularly serious crime”

determination may be based on an alien’s own testimony at

his removal hearing. We hold that such testimony is just the

sort of “reliable information . . . outside the confines of a

record of conviction” referred to in Matter of N—A—M—, 24

I. & N. Dec. at 342. We see no reason to question the reliability of testimony giving rise to a “particularly serious crime”

determination where the alien is testifying under oath, see 8

C.F.R. § 1240.7(b), on his own behalf in order to obtain relief

from removal, and risking ineligibility for asylum and withholding of removal should the IJ determine that he has been

convicted of a “particularly serious crime” under 8 U.S.C.

§ 1231(b)(3)(B)(ii). “Where the BIA does not make an

explicit adverse credibility finding, we must assume that [the

petitioner’s] factual contentions are true.” Navas v. INS, 217

F.3d 646, 652 n.3 (9th Cir. 2000); see also Kalubi v. Ashcroft,

364 F.3d 1134, 1137 (9th Cir. 2004) (“Testimony must be

accepted as true in the absence of an explicit adverse credibility finding.”). Accordingly, we reject Anaya’s argument that

the BIA’s reliance on his own testimony was improper. 

ANAYA-ORTIZ v. MUKASEY 905
C

Anaya also argues that the BIA applied the wrong legal

standard by failing to properly consider all the facts and circumstances giving rise to his drunk-driving conviction.

Although we lack jurisdiction over the BIA’s ultimate determination that Anaya committed a “particularly serious crime”

when he drunkenly drove his car into an elderly victim’s

house and caused part of the wall to collapse on her, we retain

jurisdiction to review whether the BIA used the correct legal

analysis in reaching this conclusion. See Afridi, 442 F.3d at

1218. “[I]n most cases, determining whether a crime is particularly serious requires a case-by-case analysis, using ‘such

factors as the nature of the conviction, the circumstances and

underlying facts of the conviction, [and] the type of sentence

imposed.” Id. at 1219 (quoting Matter of Frentescu, 18 I. &

N. Dec. 244, 247 (BIA 1982)). 

[9] The BIA’s “approach to determining whether a crime is

particularly serious has evolved since” Matter of Frentescu.

Matter of N—A—M—, 24 I. & N. Dec. at 342. As Matter of

N—A—M— explains, “once an alien is found to have committed a particularly serious crime, we no longer engage in a separate determination to address whether the alien is a danger to

the community.” Id. Thus, “[o]nce the INS makes a finding

that an offense constitutes a particularly serious crime, a separate determination of danger to the community is not

required.” Kankamalage v. INS, 335 F.3d 858, 861 n.2 (9th

Cir. 2003). This revised approach is contained in the current

BIA regulations, which provide that “an alien who has been

convicted of a particularly serious crime shall be considered

to constitute a danger to the community.” 8 C.F.R.

§ 1208.16(d)(2); see also Matter of Carballe, 19 I. & N. Dec.

357, 360 (BIA 1996) (explaining that “a separate determination of dangerousness focusing on the likelihood of future

serious misconduct on the part of the alien” is not required by

the statute because, when “determining whether a conviction

is for [a particularly serious] crime, the essential key is

906 ANAYA-ORTIZ v. MUKASEY
whether the nature of the crime is one which indicates that the

alien poses a danger to the community”). 

[10] The record does not support Anaya’s contention that

the IJ and BIA committed legal error by failing to consider

whether the type and circumstances of his crime indicate that

he will be a danger to the community. The IJ’s decision analyzed the nature of Anaya’s drunk driving offense with sufficient reference to its dangerousness:

Drunk driving results in untold loss of human potential, not to mention the thousands of deaths each

year. [Anaya] was driving drunk and ran into a

stranger’s home. He hit the home with such force

that the interior walls collapsed and injured a

woman. 

. . . It strikes me that this woman, who was no doubt

in some repose in her own home, had an expectation

that she need not fear drunk drivers. [Anaya] shattered this belief by basically barging into her home

with his car. He inflicted what the California statutes

refer to as great bodily injury on her. 

The BIA determined that Anaya’s testimony “establishes that

the respondent, after drinking alcohol to the point where he

was intoxicated, began driving a motor vehicle in reckless disregard for persons or property whereupon he drove his car

into the home of his victim causing property damage and bodily injury.” The BIA also noted that Anaya “was confined for

his criminal actions.” We therefore conclude that the BIA

properly considered “the nature of the conviction, the circumstances and underlying facts of the conviction, [and] the type

of sentence imposed” when reaching its conclusion that

Anaya’s drunk driving constituted a “particularly serious

crime.” Afridi, 442 F.3d at 1219; accord Matter of N—A—M

—, 24 I. & N. Dec. at 342 (reciting the same factors). 

[11] Finally, Anaya argues that because “reckless disregard” is not an element of California Vehicle Code

ANAYA-ORTIZ v. MUKASEY 907
§ 23153(b), his drunk-driving conviction cannot constitute a

conviction of a “particularly serious crime.” Although

Anaya’s argument is not entirely clear, he cites Leocal v. Ashcroft, 543 U.S. 1 (2004), which held that state DUI offenses

“which either do not have a mens rea component or require

only a showing of negligence in the operation of a vehicle”

are not categorically “crime[s] of violence” under 18 U.S.C.

§ 16. Id. at 5. But the categorical and modified categorical

approaches are not applicable to evaluating whether a crime

is “particularly serious.” Matter of N—A—M—, 24 I. & N.

Dec. at 344. We therefore conclude that the BIA applied the

correct legal standard in determining that Anaya was convicted “of a particularly serious crime and is a danger to the

community of the United States,” making him ineligible for

withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). 

IV

We reject Anaya’s arguments that he is not removable as

an aggravated felon and that the BIA improperly determined

that he had been convicted of a “particularly serious crime”

based on his testimony at his removal hearing. Accordingly,

Anaya’s petition for review is DENIED.

908 ANAYA-ORTIZ v. MUKASEY