FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIEGO MIGUEL-MIGUEL, 

Petitioner-Appellant, No. 05-15900

v. D.C. No.  CV-04-00759-JWS ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Arizona

John W. Sedwick, District Judge, Presiding

Argued and Submitted

July 13, 2007—San Francisco, California

Filed August 29, 2007

Before: Procter Hug, Jr., Pamela Ann Rymer and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

10847
COUNSEL

Robert B. Jobe (argued) and Fatma Marouf, San Francisco,

California, for the petitioner-appellant. 

Daniel G. Knauss, John Boyle and Cynthia M. Parsons

(argued), Phoenix, Arizona, for the respondent-appellee.

OPINION

FISHER, Circuit Judge: 

This case presents the question of whether the Attorney

General may through an adjudicative decision create a strong

presumption that a drug trafficking offense resulting in a sentence of less than five years is a “particularly serious crime”

under 8 U.S.C. § 1231(b)(3)(B). Diego Miguel-Miguel, a

native of Guatemala, petitioned for withholding of removal

based upon his alleged fear that his life or freedom would be

threatened if he were returned to Guatemala. The Board of

Immigration Appeals (BIA) agreed, declaring Miguel eligible

for withholding of removal, but nonetheless ordered him

removed because it found that Miguel’s 1999 conviction for

selling $20 of cocaine was a particularly serious crime. In so

10850 MIGUEL-MIGUEL v. GONZALES
finding, the BIA followed the presumption set forth in the

Attorney General’s opinion in Matter of Y-L-, 23 I. & N. Dec.

270 (Op. Att’y Gen. 2002), disapproved of on other grounds

by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003), even

though Matter of Y-L- was issued after Miguel had pled guilty

to his 1999 offense. We hold that the Attorney General did

have the authority to create his presumptive standard in Y-L-,

but that the BIA erred by applying it retroactively to Miguel’s

case. 

BACKGROUND

Miguel was born in Guatemala and belongs to the indigenous Cakchiquel group. During the chaos of the country’s

civil war, Miguel’s family was harassed by a guerilla group

that believed that Miguel and his family supported the government. The guerillas initially demanded just money, but

later threatened to kill Miguel if he did not join them. The

guerillas took Miguel to the mountains, where they held him

captive and forced him to serve as a lookout. During this time,

Miguel witnessed the guerillas kill several people, and in one

instance was forced to participate. Miguel says that he was

afraid that if he did not assist the guerillas, they would kill

him. After six months in captivity, Miguel was able to escape

across the border into Mexico. He made his way to the United

States, where he eventually applied for and was granted asylum in 1988. 

In 1998, Miguel was charged in a California court for selling or transporting cocaine under California Health and Safety

Code § 11352.1 The facts of the offense are undisputed. While

1Section 11352 provides in relevant part: 

[E]very person who . . . sells . . . or offers to . . . sell [cocaine],

unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be

punished by imprisonment in the state prison for three, four, or

five years. 

MIGUEL-MIGUEL v. GONZALES 10851
he was standing on the street with a group of men, an undercover agent approached Miguel and asked him for drugs.

Miguel fetched .26 grams of rock cocaine from his associates

and sold it to the agent for $20. Miguel pled guilty to the

charges and received a sentence of time served (36 days), a

fine of $200 and five years probation. 

The Immigration & Naturalization Service (INS) placed

Miguel in removal proceedings — triggering a series of hearings and appeals as the legal standards applied to Miguel’s

case evolved over the course of the proceedings. At the outset,

Miguel admitted the allegations in the Notice to Appear and

applied for withholding of removal. In October 1999, an

Immigration Judge (IJ) found that Miguel’s cocaine conviction did not preclude withholding of removal because the conviction was not for a “particularly serious crime” under 8

U.S.C. § 1231(b)(3)(B), as that term had been defined by the

BIA in Matter of S-S-, 22 I. & N. Dec. 458, 463-65 (BIA

1999) (en banc). The IJ nonetheless denied withholding of

removal because, although Miguel had suffered past persecution, he had failed to provide documentary evidence that he

continued to have a well-founded fear of future persecution.

The BIA vacated the decision and remanded, however, since

a new INS regulation had changed the standard for evaluating

changed circumstances. 

On remand the IJ in August 2001, again held that changed

circumstances precluded withholding of removal. On appeal,

the BIA held that the IJ had again applied the wrong standard

governing changed circumstances. Applying the proper standard, the Board in March 2003 found that Miguel had demonMiguel was also convicted in 1998 of a drug possession offense under

California Health & Safety Code § 11350(a). That offense, however, is not

before us because Miguel’s removal order is predicated only on his

cocaine sale conviction. See Lavira v. Attorney Gen. of United States, 478

F.3d 158, 162 (3d Cir. 2007). 

10852 MIGUEL-MIGUEL v. GONZALES
strated that his life or freedom would be threatened if he

returned to Guatemala. Thus, Miguel was eligible for withholding of removal. Meanwhile, however, the government

had moved to remand the case to the IJ because on March 5,

2002, while Miguel’s appeal was pending, the Attorney General had issued his opinion in Matter of Y-L-. That opinion

substantially altered the standard for determining whether a

drug trafficking offense is “particularly serious” under

§ 1231(b)(3)(B). The BIA granted the motion to remand,

sending the case back to the IJ to reconsider his prior determination that Miguel had not committed a particularly serious

crime. 

Applying the new standard, the IJ found that Miguel had

indeed committed a particularly serious crime. The judge

found that Miguel had failed to prove that his involvement in

the cocaine transaction was “peripheral,” and thus under Matter of Y-L-, Miguel’s cocaine trafficking conviction was

deemed particularly serious. The BIA affirmed without opinion.2

Miguel’s habeas corpus petition filed in the United States

District Court for the District of Arizona was denied. He then

filed a timely appeal in this court. However, on May 11, 2005,

the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, went

into effect, transforming Miguel’s habeas appeal into a timely

petition for review. See Alvarez-Barajas v. Gonzales, 418

F.3d 1050, 1053 (9th Cir. 2005).

JURISDICTION

Before we reach the merits of Miguel’s arguments, we must

address the government’s contention that we lack jurisdiction

to do so. First, it argues that Miguel is a criminal alien under

2Because it is not before us, we take no position on whether the BIA’s

agreement with the IJ that Miguel’s involvement in the underlying offense

was not peripheral was correct. 

MIGUEL-MIGUEL v. GONZALES 10853
8 U.S.C. § 1182(a)(2) and the BIA’s determination that he

committed a particularly serious crime under § 1231(b)(3)(B)

is an unreviewable exercise of discretion. See 8 U.S.C.

§ 1252(a)(2)(B) & (C). Our jurisdiction is not foreclosed,

however, insofar as Miguel’s petition for review raises issues

of law. See 8 U.S.C. § 1252(a)(2)(D). We hold that Miguel

has done just that. 

Miguel does not challenge the BIA’s conclusion that his

offense was particularly serious under Matter of Y-L-, but

instead argues that the Attorney General lacked the authority

to issue Matter of Y-L-, or that Y-L- is invalid as applied to

this case. These are pure questions of law and therefore we

have jurisdiction to review them. See Afridi v. Gonzales, 442

F.3d 1212, 1218 (9th Cir. 2006) (“While 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.”). 

Second, the government argues that we lack jurisdiction

because Miguel did not exhaust his argument that the BIA

erred in failing to heed Beltran-Zavala v. INS, 912 F.2d 1027

(9th Cir. 1990) (per curiam), which prohibits the BIA from

holding that a particular crime is per se particularly serious

under § 1231(b)(3)(B). See 8 U.S.C. § 1252(d)(1); Barron v.

Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). But Miguel did

raise this argument during his penultimate trip to the BIA,

when he argued that no remand to the IJ was necessary

because Y-L- conflicted with Beltran-Zavala. The BIA implicitly rejected this argument in its March 2003 decision, holding

that the case should be remanded for the IJ to make findings

under Y-L-. Although Miguel did not re-raise the argument on

remand to the IJ, or in his final appeal to the BIA, there is no

requirement that immigration petitioners exhaust an argument

before the BIA more than once, particularly where as here the

BIA has already rejected the argument. See Ladha v. INS, 215

F.3d 889, 903 (9th Cir. 2000) (holding that exhaustion is satisfied where the BIA “had a full opportunity to resolve [the]

10854 MIGUEL-MIGUEL v. GONZALES
controversy or correct its own errors before judicial intervention” (citation and quotation marks omitted, alteration in original)). 

Accordingly, we turn to the merits of Miguel’s appeal.

DISCUSSION

I

Miguel makes a facial challenge to Matter of Y-L-, relying

upon two premises. First, he asserts that Matter of Y-L- created what amounts to a per se rule that turns all drug trafficking offenses into particularly serious crimes under § 1231(b).

Second, he contends that the Attorney General was forbidden

from promulgating such a per se rule by Ninth Circuit law, the

statute’s plain text, the Administrative Procedure Act (APA)

and the Constitution. We reject Miguel’s first premise

because Y-L- on its face purports to create only a strong presumption, not a per se rule. We thus need not decide whether

the Attorney General can create per se rules under § 1231(b).

Instead, we hold only that the Attorney General did not

exceed his powers by creating the strong presumption set

forth in Y-L-. 

A

Consistent with the United States’ treaty obligations under

the United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223 (1968), Congress has provided that an

alien may not be removed to a nation in which his or her life

or freedom would be threatened on a protected ground unless

“the Attorney General decides that . . . the alien, having been

convicted by a final judgment of a particularly serious crime

is a danger to the community.” 8 U.S.C. § 1231(b)(3)(B)(ii).

The degree to which Congress has defined “particularly serious crime,” rather than leaving it for the Attorney General to

define, has changed over time. 

MIGUEL-MIGUEL v. GONZALES 10855
Before 1990, the Immigration and Nationality Act (INA)

did not define the term at all. See 8 U.S.C. § 1253(h)(2)(B)

(1990). Rather, the definition of the term was developed by

the BIA through adjudication. In Matter of Frentescu, 18 I. &

N. Dec. 244 (BIA 1982), the BIA articulated a multi-factor

test for determining whether a particular crime was particularly serious. The factors included “the nature of the conviction, the circumstances and underlying facts of the conviction,

the type of sentence imposed, and, most importantly, whether

the type and circumstances of the crime indicate that the alien

will be a danger to the community.” Id. at 244. We approved

of the Frentescu factors in Mahini v. INS, 779 F.2d 1419 (9th

Cir. 1986), holding that the Board had properly concluded

that an alien convicted of heroin trafficking who received a

sentence of 13 months imprisonment had committed a particularly serious crime. Id. at 1421. We reaffirmed and extended

Mahini in 1990 in Beltran-Zavala, holding that the application of Frentescu’s case-by-case analysis was mandatory and

that the BIA could not erect classes of crimes that were particularly serious per se. See Beltran-Zavala, 912 F.2d at 1031-

32. 

That same year, however, Congress amended the INA to

provide that all aggravated felonies were particularly serious

crimes. See Immigration Act of 1990, Pub. L. 101-649, § 515,

104 Stat. 4978, 5053 (Nov. 29, 1990); 8 U.S.C. § 1253(h)

(1991). This amendment overruled Frentescu and BeltranZavala by precluding case-by-case analysis for any aggravated felony. Then, in 1996, Congress again amended the

INA’s definition of particularly serious crime. Congress eliminated the categorical rule, replacing it with a presumption

that aggravated felonies are particularly serious. The presumption could be rebutted if the Attorney General determined it “necessary to ensure compliance with the 1976

United Nations Protocol Relating to the Status of Refugees.”

See Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, § 413(f), 110 Stat. 1214, 1269 (Apr. 24,

1996); 8 U.S.C. § 1253(h)(3)(B) (1996). 

10856 MIGUEL-MIGUEL v. GONZALES
Just a few months later, however, Congress yet again

amended the statute. Those amendments, which remain in

effect today, eliminated the presumption and replaced it with

a two-tiered approach. First, Congress made aggravated felonies for which the alien receives a sentence of imprisonment

of five years or more particularly serious per se. See Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), Pub. L. 104-208, div. C, sec. 305, § 241, 110

Stat. 3009, 3009-602 (Sept. 30, 1996); 8 U.S.C.

§ 1231(b)(3)(B) (1997).3 Second, however, the statute specifically provides that the creation of this class of per se particularly serious crimes “shall not preclude the Attorney General

from determining that, notwithstanding the length of sentence

imposed, an alien has been convicted of a particularly serious

crime.” Id. In two en banc decisions, the BIA held that

IIRIRA revived the Frentescu mode of case-by-case analysis

for aggravated felony convictions resulting in sentences less

than five years. See Matter of L-S, 22 I. & N. Dec. 645, 649

(BIA 1999) (en banc); Matter of S-S-, 22 I. & N. Dec. at 463-

65. We agreed with that conclusion in Afridi v. Gonzales, 442

F.3d 1212, 1220-21 & n.4 (9th Cir. 2006). Afridi, however,

involved a sexual abuse offense, and thus did not consider the

validity of Matter of Y-L-.

3The current text provides that an alien may be deported, notwithstanding a threat to his life or freedom, if “the Attorney General decides that

. . . 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) (2007). The statute further provides: 

For purposes of clause (ii), an alien who has been convicted of

an aggravated felony (or felonies) for which the alien has been

sentenced to an aggregate term of imprisonment of at least 5

years shall be considered to have committed a particularly serious

crime. The previous sentence shall not preclude the Attorney

General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime. 

8 U.S.C. § 1213(b)(3)(B) (2007). 

MIGUEL-MIGUEL v. GONZALES 10857
[1] The Attorney General’s 2002 opinion in Y-L- instructs

the BIA to treat all drug trafficking offenses presumptively as

“particularly serious crimes.” This presumption can be rebutted only in the “extraordinary,” “extenuating” and “compelling” case where a petitioner can demonstrate “at a

minimum”: 

(1) a very small quantity of controlled substance;

(2) a very modest amount of money paid for the

drugs in the offending transaction; 

(3) merely peripheral involvement by the alien in

the criminal activity, transaction, or conspiracy; 

(4) the absence of any violence or threat of violence, implicit or otherwise, associated with the

offense; 

(5) the absence of any organized crime or terrorist

organization involvement, direct or indirect, in relation to the offending activity; and 

(6) the absence of any adverse or harmful effect of

the activity or transaction on juveniles. 

Matter of Y-L-, 23 I. & N. Dec. at 274, 276-77 (emphasis in

original). In addition, “[o]nly if all of these criteria were demonstrated by an alien would it be appropriate to consider

whether other, more unusual circumstances . . . might justify

departure from” the presumption. Id. at 277 (emphasis in original). Thus Matter of Y-L- creates an extraordinarily strong

presumption that drug trafficking offenses are particularly

serious crimes. It therefore purports to overrule Matter of

L-S-, Matter of S-S- and Frentescu in part by precluding

application of the Frentescu factors in most drug trafficking

cases. 

10858 MIGUEL-MIGUEL v. GONZALES
[2] The Attorney General in Y-L- purported not to be creating a per se rule. See Matter of Y-L-, 23 I. & N. Dec. at 276

(stating that “I do not consider it necessary . . . to exclude

entirely the possibility of the very rare case where an alien

may be able to demonstrate extraordinary and compelling circumstances that justify treating a particular drug trafficking

crime as falling short of” being a particularly serious crime).

Presumably Y-L- will be interpreted consistent with this statement and there will be some cases in which its exception

applies. See, e.g., Lavira, 478 F.3d at 165 (stating that the

petitioner appeared to be “squarely within the exception

carved out by” Y-L-). Thus, Y-L- creates a strong presumption,

not a per se rule. 

B

[3] Neither our precedent nor the text of § 1231(b)(3) precluded the Attorney General from issuing Matter of Y-L-. In

Beltran-Zavala, we made application of the Frentescu factors

mandatory for two reasons. First, the BIA had consistently

applied Frentescu and thus was bound by its own precedent

to continue applying that analytical framework. See BeltranZavala, 912 F.2d at 1032. This reasoning does not apply here

because the Attorney General may overrule the BIA by issuing a published opinion. See 8 C.F.R. § 103.37(g); 8 C.F.R.

§ 1003.1(g); BIA Practice Manual § 1.4(g) (2004). 

Second, Beltran-Zavala held that the structure of the statute

precluded creation of per se particularly serious crimes

because “[i]f Congress wanted to erect per se classifications

of crimes precluding immigration and nationality benefits, it

knew how to do so.” 912 F.2d at 1032 (citations omitted).

This reasoning is no longer directly applicable because the

text and structure of the statute have changed. The statute now

does include a class of per se particularly serious crimes:

those aggravated felonies for which aliens have received sentences of five years or more. 8 U.S.C. § 1231(b)(3)(B). Nor

is the statute silent with regard to other crimes: it specifically

MIGUEL-MIGUEL v. GONZALES 10859
grants the Attorney General the authority to “determin[e] that

. . . an alien has been convicted of a particularly serious

crime.” Id. In Y-L- the Attorney General interpreted this provision to permit the creation of a strong presumption that drug

trafficking offenses are particularly serious. See Matter of YL-, 23 I. & N. Dec. at 274, 276. We are to afford the Attorney

General’s interpretation deference under Chevron U.S.A. Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).

We must therefore ask whether the statute is “silent or ambiguous” with respect to the Attorney General’s authority to

create strong presumptions of the sort set forth in Y-L-. Id.

(citation omitted). If it is, we must then ask whether the Attorney General’s interpretation “is based on a permissible construction of the statute.” Id. (citation omitted). 

Miguel argues that the plain text of the statute requires a

Frentescu case-by-case analysis because it allows removal

based on prior criminal conduct only where the Attorney General “determin[es] that . . . an alien has been convicted of a

particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B) (emphasis added). Miguel interprets the reference to “an alien” rather

than “a crime” to limit the scope of the Attorney General’s

discretion to making determinations with regard to particular

aliens on a case-by-case basis, not to designating per se

crimes. This argument is misplaced because Matter of Y-Ldoes not purport to create a per se rule; and the statute’s text

does not plainly foreclose the Attorney General’s creation of

strong presumptions. Miguel’s interpretation of the statute,

though plausible, is not the only permissible construction. The

sentence immediately preceding the sentence Miguel relies

upon also refers to “an alien” even though that sentence

undisputedly establishes a per se class of particularly serious

crimes. See 8 U.S.C. § 1231(b)(3)(B) (providing that “an

alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate

term of imprisonment of at least 5 years shall be considered

to have committed a particularly serious crime” (emphasis

10860 MIGUEL-MIGUEL v. GONZALES
added)). It is not clear that Congress would refer to “an alien”

in one sentence to describe a per se rule that permits no caseby-case analysis but in the next sentence use “an alien” in

order to specifically preclude the creation of a strong presumption that merely restricts the scope of case-by-case analysis. Thus § 1231(b)(3)(B) is ambiguous as to whether

Congress meant to limit the Attorney General’s ability to

create strong presumptions. 

[4] Because the statute’s text is not plain in either precluding or permitting the Attorney General to create strong presumptions, we must ask whether the Attorney General’s

interpretation is impermissible. See Aguirre-Aguirre, 526 U.S.

at 424. It is not. As explained above, the statutory text itself

can plausibly be understood as providing the Attorney General discretion to create strong presumptions. See MoralesIzquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (en

banc) (holding that at Chevron step two, the court asks

“whether the agency’s interpretation reflects a plausible reading of the statutory text”). The legislative history also supports the Attorney General’s interpretation, as it states that

“the Attorney General retains the authority to determine other

circumstances in which an alien has been convicted of a particularly serious crime.” H.R. Conf. Rep. No. 104-828, at 216

(1996) (emphasis added). 

[5] Miguel contends that the Attorney General’s interpretation is impermissible because it conflicts with the United

Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (Geneva

1992) (“UNHCR Handbook”). The Handbook states that refugees may be returned to countries in which they face persecution only in “extreme cases,” and suggests that a “serious”

crime must be “a capital crime or a very grave punishable

act.” UNHCR Handbook, supra, at ¶ 154-55.4 Admittedly, the

4The Handbook does not directly define particularly serious crime, but

does comment on the meaning of “serious” in the context of defining the

term “serious non-political crime” in Article 1F(b) of the 1951 United

Nations Convention Relating to the Status of Refugees. See Frentescu, 18

I. & N. Dec. at 245-47. 

MIGUEL-MIGUEL v. GONZALES 10861
creation of a strong presumption that all drug trafficking

offenses — even relatively minor ones — are particularly

serious is in tension with the Handbook’s definition. We view

the UNHCR Handbook as “persuasive authority in interpreting the scope of refugee status under domestic asylum law.”

Ndom v. Ashcroft, 384 F.3d 743, 753 n.4 (9th Cir. 2004); see

also INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987)

(“[T]he Handbook provides significant guidance in construing

the Protocol, to which Congress sought to conform.”). But the

Handbook “is not binding on the Attorney General, the BIA,

or United States courts.” Aguirre-Aguirre, 526 U.S. at 427. If

the Attorney General’s interpretation is permissible in light of

the statute’s text, structure and purpose, we must defer under

Chevron to the Attorney General’s interpretation even if it is

in tension with the UNHCR Handbook. See id.

[6] We hold that the Attorney General’s construction of

§ 1231(b)(3)(B) as providing him with discretion to create a

strong presumption that drug trafficking offenses are particularly serious crimes is not impermissible. Under Chevron, we

therefore defer to that construction. Accordingly, after Matter

of Y-L-, a Frentescu analysis is no longer required with regard

to drug trafficking offenses.5

C

[7] Miguel next argues that even if the Attorney General’s

interpretation is permissible in light of the statutory text, it

5

Insofar as Miguel also argues that Matter of Y-L-’s ultimate conclusion

— that most drug trafficking offenses are particularly serious — is impermissible, we reject that argument. The Attorney General justified the Y-Lpresumption based upon the BIA’s prior treatment of drug trafficking

offenses as “inherently . . . particularly serious,” Congress’ imposition of

harsh punishment for such offenses and the threats to public safety posed

by drug use and the illegal drug trade. See 23 I. & N. Dec. at 274-76 (quoting Matter of U-M-, 20 I. & M. Dec. 327, 330-31 (BIA 1991)). The Attorney General’s choice to so exercise his discretion was not impermissible

in light of the statute’s text, structure or purpose. 

10862 MIGUEL-MIGUEL v. GONZALES
nonetheless violates the Fifth Amendment Due Process

Clause by creating a de facto per se rule. Miguel relies upon

Chong v. INS, 264 F.3d 378 (3d Cir. 2001), which suggested

that due process requires an “individualized determination”

with regard to whether an alien has committed a particularly

serious crime and that it would be problematic for an IJ to

“blindly follow[ ] a categorical rule, i.e. that all drug convictions qualify as ‘particularly serious crimes.’ ” Id. at 387 (citation omitted); see also Matter of Y-L-, 23 I. & N. Dec. at 276

n.12 (stating that Chong “indicate[s] that the application of

‘per se’ determinations is legally questionable”). Once again,

Miguel’s challenge misses the mark, because we do not read

Matter of Y-L- as creating a per se rule. Moreover, Chong

concerned only an alien’s procedural due process right to

engage in “factfinding based on a record produced before the

Board and disclosed to her.” Chong, 264 F.3d at 386. Chong

did not hold that aliens have a substantive due process right

that precludes Congress or the Attorney General from crafting

particular legal standards in a particular manner. If such a

substantive due process right existed, it would mean that Congress violated the Constitution by categorizing all aggravated

felonies as particularly serious crimes from 1990 to 1996, or

that it is violating the Constitution now by making all aggravating felonies with more than a five year sentence per se particularly serious. There is no support for such a constitutional

rule. 

[8] Miguel does not claim his procedural due process rights

were violated, and even if he had we would reject that claim.

Miguel received all the process to which he was due, i.e. “a

full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf.” Ladha v. INS, 215

F.3d 889, 904 (9th Cir. 2000) (citation omitted). Although

Matter of Y-L- made it much more difficult as a substantive

matter for Miguel to avoid removal, we cannot say the procedures he received — which included full briefing and a hearing before the IJ — were “so fundamentally unfair that [he]

MIGUEL-MIGUEL v. GONZALES 10863
was prevented from reasonably presenting his case.” Id. (citation omitted). 

D

[9] Miguel next argues that Matter of Y-L- sets forth an

unconstitutionally vague rule. However, constitutional vagueness requirements apply only to “vague statutory language” or

to “unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face.”

Rogers v. Tennessee, 532 U.S. 451, 457 (2001). Neither circumstance is present here. Matter of Y-L- is not a statute or

regulation, but instead an adjudicatory interpretation of statutory text. Nor does Y-L- expand the statutory language. To the

contrary, Y-L- brings a measure of precision to

§ 1231(b)(3)(B)’s somewhat vague text, which Miguel does

not challenge as itself unconstitutionally vague. Miguel’s

vagueness challenge therefore fails. 

E

[10] Miguel also argues that Matter of Y-L- is invalid

because it is a legislative rule under the APA and therefore

the Attorney General could not issue it without first engaging

in notice-and-comment rulemaking procedures. See Hemp

Indus. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003).

The government responds that Matter of Y-L- is an interpretive rule and so those procedures are not required. See id.; 5

U.S.C. § 553(b). Both sides miss the point that Matter of Y-Lis an adjudicative decision and thus does not fit within the

legislative/interpretive framework for rulemaking. See Cent.

Tex. Tel. Co-op., Inc. v. FCC, 402 F.3d 205, 210-11 (D.C.

Cir. 2005). Generally, an agency “is not precluded from

announcing new principles in an adjudicative proceeding and

. . . the choice between rulemaking and adjudication lies in the

first instance within the [agency’s] discretion.” NLRB v. Bell

Aerospace Co., 416 U.S. 267, 294 (1974); see also Yang v.

INS, 79 F.3d 932, 936 (9th Cir. 1996). Of course, in certain

10864 MIGUEL-MIGUEL v. GONZALES
circumstances an agency may abuse its discretion by

announcing new rules through adjudication rather than

through rulemaking, such as when the rule operates retroactively and disturbs settled expectations. See Pfaff v. U.S.

Dep’t of Hous. and Urban Dev., 88 F.3d 739, 748 (9th Cir.

1996); Patel v. INS, 638 F.2d 1199, 1203-05 (9th Cir. 1980);

Ruangswang v. INS, 591 F.2d 39, 44 (9th Cir. 1978). We consider the retroactivity question next. 

II

Miguel argues that even if Matter of Y-L- is valid on its

face, the BIA nonetheless is barred from applying it retroactively to his case by Montgomery Ward & Co., Inc. v. FTC,

691 F.2d 1322 (9th Cir. 1982). When Miguel pled guilty in

1999 to selling a small amount of cocaine for $20 and was

sentenced to time served (36 days), the immigration consequences of doing so were unambiguously governed by

Frentescu. Indeed, applying that standard, the IJ found that

Miguel had not committed a particularly serious crime. It was

only later, when the Attorney General issued Matter of Y-Land the BIA remanded Miguel’s case for reconsideration

under that standard, that the consequences of Miguel’s prior

conduct and plea were adversely enhanced. We agree that the

BIA applied Matter of Y-L- retroactively to Miguel, and that

it was forbidden from doing so by Montgomery Ward. 

[11] In SEC v. Chenery Corp., 332 U.S. 194, 203 (1947),

the Supreme Court held that an agency may give retroactive

force to a new rule created through adjudicatory action, but

“[the] retroactivity must be balanced against the mischief of

producing a result which is contrary to a statutory design or

to legal and equitable principles.” See also Heckler v. Cmty.

Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n.12

(1984) (recognizing the principle that “an administrative

agency may not apply a new rule retroactively when to do so

would unduly intrude upon reasonable reliance interests”).

The D.C. Circuit in Retail, Wholesale and Department Store

MIGUEL-MIGUEL v. GONZALES 10865
Union, AFL-CIO v. NLRB, 466 F.2d 380 (D.C. Cir. 1972),

fleshed out this balancing test by identifying five nonexhaustive factors for determining when an agency’s retroactive application of an adjudicatory decision is invalid: 

(1) whether the particular case is one of first

impression, 

(2) whether the new rule represents an abrupt

departure from well established practice or merely

attempts to fill a void in an unsettled area of law, 

(3) the extent to which the party against whom the

new rule is applied relied on the former rule, 

(4) the degree of the burden which a retroactive

order imposes on a party, and 

(5) the statutory interest in applying a new rule

despite the reliance of a party on the old standard. 

Id. at 390. We adopted the Retail, Wholesale factors in Montgomery Ward, 691 F.2d at 1333. These factors are meant to

“balance[ ] a regulated party’s interest in being able to rely on

the terms of a rule as it is written against an agency’s interest

in retroactive application of an adjudicatory decision.” Chang

v. United States, 327 F.3d 911, 928 (9th Cir. 2003). We must

therefore apply the factors here to determine whether the BIA

erred by retroactively applying Matter of Y-L- to Miguel’s

case. 

[12] To begin, this is not a case of first impression. Before

Matter of Y-L-, both the BIA and this court had affirmed

Frentescu’s case-by-case mode of analyzing whether a particular alien had committed a particularly serious crime, including drug trafficking offenses. See Beltran-Zavala, 912 F.2d at

1031-32; Mahini, 779 F.2d at 1421; Matter of L-S, 22 I. & N.

Dec. at 649; Matter of S-S-, 22 I. & N. Dec. at 463-65. More10866 MIGUEL-MIGUEL v. GONZALES
over, the first factor is directed towards maintaining an incentive for litigants to raise novel claims by allowing a litigant

who successfully argues for a new rule to get the benefit of

that rule. See Retail, Wholesale, 466 F.2d at 390. It also

ensures that agencies do not issue advisory opinions. See id.

Neither of these concerns is in play here because the Attorney

General did not announce its new rule in this case; instead the

BIA seeks to apply the new rule announced in Y-L- to an

unrelated proceeding. The first factor thus favors Miguel. See

id. at 391 (stating that retroactivity is disfavored “where the

[agency] ha[s] confronted the problem before, ha[s] established an explicit standard of conduct, and now attempts to

punish conformity to that standard under a new standard subsequently adopted”). 

[13] The second factor also favors Miguel. That factor “requires the court to gauge the unexpectedness of a rule and the

extent to which the new principle serves the important but

workaday function of filling in the interstices of the law.”

Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d

1074, 1082 (D.C. Cir. 1987) (en banc). “It implicitly recognizes that the longer and more consistently an agency has followed one view of the law, the more likely it is that private

parties have reasonably relied to their detriment on that view.”

Id. at 1082-83. Before Matter of Y-L-, aliens convicted of

drug trafficking offenses resulting in sentences of less than

five years could expect that the BIA would make a particularly serious crime determination based on the individual circumstances of their cases. After Y-L-, aliens in the same

position can expect that any drug trafficking conviction will

almost certainly result in removal. The significance of the difference in standards before and after Y-L- is illustrated by this

case, in which the IJ concluded under Frentescu that Miguel

had not committed a particularly serious crime but reached

exactly the opposite conclusion when applying Y-L-. Cf.

Chang, 327 F.3d at 928 (relying on inconsistent determinations with regard to the alien plaintiffs before and after the

MIGUEL-MIGUEL v. GONZALES 10867
new rule was announced to conclude that the rule change was

an “abrupt departure”). 

[14] The third factor also favors Miguel. “There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware

of the immigration consequences of their convictions.” INS v.

St. Cyr, 533 U.S. 289, 322 (2001). When Miguel pled guilty

in 1999 he had a realistic chance that the BIA, applying

Frentescu, would find that the crime was not particularly serious and the IJ did so find. The application of Y-L- changes the

game entirely. Given the exceedingly strong presumption contained in Y-L- and the strong likelihood that the BIA would

not deem Miguel’s participation “peripheral,” Y-L- made it a

near (if not total) certainty that Miguel’s decision to plead

guilty would result in his removal. See id. at 325 (“There is

a clear difference, for the purposes of retroactivity analysis,

between facing possible deportation and facing certain deportation.”); see also Kankamalage v. INS, 335 F.3d 858, 862-63

(9th Cir. 2003). 

[15] The fourth factor strongly favors Miguel. We have

previously held that deportation alone is a substantial burden

that weighs against retroactive application of an agency adjudication. See Ruangswang, 591 F.2d at 44. Here the burden is

much greater. Miguel testified that his life would be threatened if he returned to Guatemala. The BIA agreed that Miguel

faced future persecution. Although these threats may have

lessened with the passage of time, we nonetheless conclude

that the seriousness of the harms that could befall Miguel if

he were removed to Guatemala weigh strongly against retroactive application of Y-L- to his case. 

[16] Only the final factor favors the government. By

amending section § 1231(b)(3)(B), Congress gave the Attorney General substantial discretion with regard to particularly

serious crime determinations. In Y-L-, the Attorney General

singled out narcotics trafficking as particularly serious, both

10868 MIGUEL-MIGUEL v. GONZALES
in the interest of public safety and in bringing uniformity to

the law. See Matter of Y-L-, 23 I. & N. Dec. at 273 (stating

that Frentescu regime “has led to results that are both inconsistent and . . . illogical”). But these interests are substantially

served by prospective application of Matter of Y-L-. Forbidding the Attorney General from applying Y-L- retroactively in

this case therefore does not severely limit his efforts to pursue

the statutory mandate. 

[17] Accordingly, because the Montgomery Ward analysis

tilts decidedly in Miguel’s favor, we hold that retroactive

application of the Matter of Y-L- test to his case was impermissible.6

CONCLUSION

For the foregoing reasons, we grant the petition for review

and remand to the BIA for further proceedings. 

PETITION GRANTED; REMANDED.

6The government contends that even if the BIA erred by applying Y-Lretroactively, we need not remand because the BIA held that Miguel failed

to demonstrate future persecution justifying withholding of removal. This

flatly misrepresents the record: the BIA specifically held that Miguel had

demonstrated past persecution and that the government failed to rebut the

presumption that he would be persecuted in the future. Thus, the Board

held, petitioner “demonstrated his eligibility for withholding of removal

under the Act,” aside from the issues involving Y-L-. 

MIGUEL-MIGUEL v. GONZALES 10869