FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERNAN ISMAEL DELGADO, 

Petitioner, No. 03-74442

v. Agency No. 

M A78-461-226 ICHAEL B. MUKASEY,*

Attorney General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued November 18, 2005

Submitted June 20, 2008

Pasadena, California

Filed October 8, 2008

Before: William C. Canby, Jr., Eugene E. Siler, Jr.,** and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Canby;

Dissent by Judge Berzon

*Michael Mukasey is substituted for his predecessor, Alberto Gonzales,

as Attorney General. Fed. R. App. P. 43(c)(2). 

**The Honorable Eugene E. Siler, Jr., Senior United States Circuit

Judge for the Sixth Circuit, sitting by designation. 

14271
COUNSEL

Niels W. Frenzen, University of Southern California Gould

School of Law, Los Angeles, California, pro bono counsel for

the petitioner. 

Jennifer Levings, Norah Ascoli Schwarz, United States

Department of Justice, Civil Division, Washington, D.C., for

the respondent. 

OPINION

CANBY, Circuit Judge: 

Hernan Ismael Delgado petitions for review of a decision

of the Board of Immigration Appeals (“BIA”) ordering him

removed to his native El Salvador. The BIA denied Delgado’s

applications for asylum, withholding of removal, and withholding under the Convention Against Torture (“CAT withholding”), finding that Delgado’s three prior offenses of

driving under the influence (“DUI”), which were not aggravated felonies, constituted “particularly serious crimes” that

made him ineligible for those forms of relief.1 The BIA also

found Delgado ineligible for deferral of removal under the

1All three convictions were for felony DUI. One involved an injury

accident, and two resulted in prison terms of less than five years. 

DELGADO v. MUKASEY 14275
Convention Against Torture (“CAT deferral”) because he

failed to demonstrate the requisite likelihood of future torture.

We dismiss in part and deny in part Delgado’s petition for

review. We defer to the BIA’s view that, for purposes of withholding of removal, the applicable statute permits the Attorney General to decide by adjudication that an alien’s

individual crime is “particularly serious” even though that

crime is not classified as an aggravated felony. We also conclude that, for purposes of asylum, the Attorney General may

determine by adjudication that a crime is “particularly serious” without first so classifying it by regulation. We further

determine that we are without jurisdiction to review the merits

of such decisions. Finally, we hold that substantial evidence

supports the decision of the BIA that Delgado failed to meet

his burden of proving that he is more likely than not to be tortured if returned to El Salvador. 

Background

Delgado, a native and citizen of El Salvador, entered the

United States on a nonimmigrant visitor visa over twenty

years ago. In July 2001, the Immigration and Naturalization

Service (“INS”)2 initiated removal proceedings against him

because he had overstayed his visa. Delgado conceded removability but sought asylum, withholding of removal, CAT withholding and deferral, cancellation of removal under the

Nicaraguan Adjustment and Central American Relief Act

(“NACARA”), and suspension of deportation. 

The Immigration Judge (“IJ”) denied Delgado’s request for

CAT deferral, finding that Delgado had failed to show that he

was more likely than not to be tortured if removed to El Sal2Effective March 1, 2003, the functions of the INS were transferred to

the Department of Homeland Security. See Homeland Security Act of

2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). This transfer

has no effect on the review of Delgado’s case. 

14276 DELGADO v. MUKASEY
vador. The IJ also found that each of Delgado’s three prior

felony DUI convictions constituted a “particularly serious

crime” that barred him from eligibility for asylum under 8

U.S.C. § 1158(b)(2)(A)(ii), withholding of removal under 8

U.S.C. § 1231(b)(3)(B)(ii), and CAT withholding under 8

C.F.R. § 1208.16(d)(2).3 The BIA affirmed the decision of the

IJ in an unpublished per curiam decision signed by one member, and this appeal followed. 

Discussion

The BIA did not specify whether it reviewed de novo the

IJ’s decision, but stated that it agreed with the IJ on the basis

of “the record before [it].” The BIA’s simple statement of a

conclusion, without analysis, suggests that it relied significantly on the IJ’s decision. In such situations, we review the

decision of the BIA and look to the IJ’s oral decision “as a

guide to what lay behind the BIA’s conclusion.” See AvetovaElisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000). 

I. The “particularly serious crime” bar

The ultimate issue raised by Delgado is whether the BIA

erred in deciding that his DUI convictions constituted “particularly serious crimes” that made him ineligible for withholding of removal and asylum. A major threshold question is

whether the applicable statutes permit the agency to determine

Delgado’s offenses to be “particularly serious” by individual

adjudication not limited by certain statutory or regulatory

requirements. We have jurisdiction under 8 U.S.C.

§ 1252(a)(2)(D) to review this question of law. Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006). 

Although this issue of the BIA’s authority to determine by

3The IJ also denied Delgado’s applications for suspension of deportation and relief under NACARA. Delgado does not seek review of those

denials. 

DELGADO v. MUKASEY 14277
adjudication that an alien’s crime is “particularly serious”

arises with regard to both withholding of removal and asylum,

the statutory context differs for each form of relief and raises

distinctive legal subissues. We therefore treat the two forms

of relief separately. 

A. Withholding of Removal

[1] An alien is ineligible for withholding of removal if,

among other things, “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.”

4

 8 U.S.C. § 1231(b)(3)(B). For the purposes of

this provision, 

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. 

Id. The question that naturally arises from this plain text is

whether the last sentence is meant to limit the Attorney General (or his delegate, the BIA) to the universe of aggravated

felonies described in the preceding sentence or, conversely,

whether the last sentence simply preserves the Attorney General’s authority to determine a crime to be particularly serious

4We have upheld the BIA’s interpretation of this statute to require “only

the factual finding of conviction of a particularly serious crime to support

the determination of danger to the community,” without the necessity of

a separate finding of such danger. Ramirez-Ramos v. INS, 814 F.2d 1394,

1397 (9th Cir. 1987). We therefore confine our analysis here to the question of “particularly serious” crimes, and omit any separate consideration

of danger to the community. 

14278 DELGADO v. MUKASEY
regardless of the penalty or its designation or non-designation

as an aggravated felony. 

[2] At the time the present appeal was argued, the BIA had

not addressed this issue in a precedential opinion, in this case

or any other. An unpublished decision by a single BIA member is not entitled to the deference prescribed by Chevron

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

U.S. 837, 842-43 (1984). Garcia-Quintero v. Gonzales, 455

F.3d 1006, 1012-14 (9th Cir. 2006). Recently, however, a

three-member panel of the BIA has issued an extensive published opinion holding that § 1231(b)(3)(B) permits the Attorney General to decide by case-by-case adjudication that

particular crimes are “particularly serious” even though they

are not aggravated felonies. In re N-A-M-, 24 I & N Dec. 336,

338-39 (BIA 2007). Such a precedential opinion is entitled to

Chevron deference. See Garcia-Quintero, 455 F.3d at 1012.

For reasons that we now set forth, we conclude that the BIA’s

interpretation of § 1231(b)(3)(B) is reasonable, and we

accordingly defer to it.5

Two other circuits, which addressed the issue before the

BIA weighed in with a precedential opinion, reached opposite

results. The Third Circuit, applying a textual and structural

approach, concluded that an offense “must be an aggravated

felony to be ‘particularly serious.’ ” Alaka v. Attorney General of the United States, 456 F.3d 88, 104-05 (3d Cir. 2006),

cert. dismissed, 128 S. Ct. 828 (2007). The court reasoned

that the sentence allowing the Attorney General to determine

that a crime is particularly serious “notwithstanding the length

of sentence imposed,” 8 U.S.C. § 1231(b)(3)(B), “explicitly

5

In Morales v. Gonzales, we assumed without analysis that the Attorney

General could deem a non-aggravated felony “particularly serious.” 478

F.3d 972, 980-81, 983 (9th Cir. 2007). There, we remanded to the BIA for

a redetermination, based on the correct legal standard, of whether Morales’s non-aggravated felony constituted a “particularly serious crime.” Id.

at 983. Because the statutory interpretation of § 1231(b)(3)(B) is squarely

contested here, we address the issue in depth for the first time. 

DELGADO v. MUKASEY 14279
refers back to the ‘previous sentence,’ and accordingly

implies that [the Attorney General’s authority] is limited to

aggravated felonies.” Id. The Seventh Circuit disagreed, concluding that “the absence of a . . . provision for

nonaggravated-felony crimes does not imply that only aggravated felonies can qualify as ‘particularly serious’ crimes.”

Ali v. Achim, 468 F.3d 462, 470 (7th Cir. 2006), cert. dism.,

128 S. Ct. 828 (2007). 

[3] The BIA found persuasive the Seventh Circuit’s view

that the designation of certain aggravated felonies as per se

“particularly serious” does not preclude the Attorney General

from deciding, on a case-by-case basis, that any other crime

is also “particularly serious.” The BIA’s adoption of this position was reasonable. The statute does not limit the definition

of “particularly serious” crimes to aggravated felonies. Nor

does it expressly require the Attorney General, when considering whether a crime that is not categorically barred is “particularly serious,” to consider only aggravated felonies where

the sentence imposed was less than five years. 

The legislative history of the particularly serious crime bar,

referred to by the BIA in In re N-A-M-, 24 I. & N. Dec. at

339-340, supports this interpretation. In 1980, § 243(h) of the

Immigration and Nationality Act was amended to deny withholding to an individual who “having been convicted by a

final judgment of a particularly serious crime, constitutes a

danger to the community of the United States.” Pub L. No.

96-212, § 202, 94 Stat. 102 (1980). Under this provision, the

BIA determined on a case-by-case basis which crimes were

particularly serious, applying the balancing test of Matter of

Frentescu, 18 I. & N. Dec. 244 (BIA 1982).6 This test did not

6The BIA looked “to such factors as 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.”

Frentescu, 18 I. & N. Dec. at 247. 

14280 DELGADO v. MUKASEY
take into account whether the crime in issue had been statutorily defined as an “aggravated felony.” In time, the BIA

denominated some crimes as inherently particularly serious,

so that individual determinations with regard to those crimes

did not have to be undertaken. See, e.g., Matter of GarciaGarrocho, 19 I. & N. Dec. 423, 425 (BIA 1986). 

The statutory provision barring those convicted of “particularly serious” crimes from eligibility for withholding of

removal then was amended three times. The Immigration Act

of 1990 (the “1990 Act”) added the following language to

§ 243(h): “an alien who has been convicted of an aggravated

felony shall be considered to have committed a particularly

serious crime.” Pub. L. No. 101-649, 104 Stat. 4978, 5053.

Nothing in the text or history of the 1990 Act suggests that

Congress intended, by making aggravated felonies per se

“particularly serious crimes,” to divest the Attorney General

of his authority to determine, on a case-by-case basis, that

other crimes were “particularly serious,” depending on the

circumstances of their commission, among other things. And,

notwithstanding the 1990 Act, the agency understood that it

could adjudicate a crime to be “particularly serious” on a

case-by-case basis. See Ahmetovic v. INS, 62 F.3d 48, 52 (2d

Cir. 1995) (agreeing with BIA’s conclusion that a crime need

not be an aggravated felony to be adjudicated “particularly

serious”); Matter of B-, 20 I. & N. Dec. 427, 430-31 (BIA

1991) (applying Frentescu factors under the 1990 Act to

determine that the alien had been convicted of a particularly

serious crime).7

7The long history of case-by-case determination of “particularly serious” crimes bears more weight, in our view, than the canons of construction relied upon by the dissent. Canons of statutory construction “are tools

designed to help courts better determine what Congress intended, not to

lead courts to interpret the law contrary to that intent.” Scheidler v. Nat’l

Org for Women, 547 U.S. 9, 23 (2006). See also Chickasaw Nation v.

United States, 534 U.S. 84, 93-95 (2006). 

DELGADO v. MUKASEY 14281
Congress relaxed the per se category created by the 1990

Act in 1996 with the passage of section 413(f) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214, 1269 (1996) (“AEDPA”). The

AEDPA amended § 243(h) to allow the Attorney General, “in

[his] discretion,” to override the categorical bar designating

all aggravated felonies “particularly serious” when “necessary

to ensure compliance with the 1967 United Nations Protocol

Relating to the Status of Refugees.” Id.

8

 The categorical bar

was again relaxed later that year with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546,

3009-602 (“IIRIRA”). IIRIRA enacted the provision at issue

here, which limits application of the categorical bar to aggravated felons sentenced to 5 years’ or more imprisonment. Id.

[4] We recognize that one of the aims of Congress in enacting the post-1990 statutory amendments was probably to

avoid sweeping minor crimes into the categorical aggravated

felony bar. But nothing in the legislative history indicates that

Congress intended, by creating a categorical bar and by later

relaxing that categorical bar, to eliminate the Attorney General’s pre-existing discretion to determine that, under the circumstances presented by an individual case, a crime was

“particularly serious,” whether or not the crime was an aggravated felony. We therefore find the BIA’s interpretation of the

statute reasonable, and conclude that the BIA was entitled to

8Although the legislative history is sparse, there seems to be no doubt

that one purpose of this enactment was to prevent violations of the Refugee Convention’s non-refoulement provision that might occur because of

a rigid application of the aggravated felony bar. See In re Q-T-M-T-, 21

I. & N. Dec. 639, 648 n.4 (BIA 1996). Such treaty violations were becoming more likely because, at the time, the list of aggravated felonies was

expanding, and a categorical bar could have included “fairly minor

offenses” in its sweep. Id. (internal quotations and citation omitted); see

also Choeum v. INS, 129 F.3d 29, 42-44 (1st Cir. 1997) (accepting INS’s

argument that 1996 amendments were fueled by expansion of the term

“aggravated felony”). 

14282 DELGADO v. MUKASEY
determine, by adjudication, that Delgado’s DUI convictions

were particularly serious crimes that barred him from eligibility for withholding of removal under 8 U.S.C.

§ 1231(b)(3)(B) and CAT withholding under 8 C.F.R.

§ 1208.16(d)(2). 

B. Asylum

[5] We now turn to whether the BIA was authorized to

determine that Delgado’s crimes were “particularly serious”

for the purposes of his asylum application.9 Just as in the context of withholding, the relevant statute provides that an alien

is ineligible for asylum if the Attorney General determines

that “the alien, having been convicted of a particularly serious

crime, constitutes a danger to the community.” 8 U.S.C.

§ 1158(b)(2)(A)(ii). For the purposes of this provision, “an

alien who has been convicted by a final judgment of an aggravated felony shall be considered to have been convicted of a

particularly serious crime.” 8 U.S.C. § 1158(b)(2)(B)(i). In

addition, “[t]he Attorney General may designate by regulation

offenses that will be considered to be a [particularly serious]

crime . . . .” 8 U.S.C. § 1158(b)(2)(B)(ii). 

[6] There seems little question that this last provision permits the Attorney General to make particular crimes categorically “particularly serious” even though they are not

aggravated felonies. The provision would be wholly redundant if the Attorney General were confined to making only

aggravated felonies “particularly serious” crimes by regulation. The different question posed by this asylum statute is

whether the Attorney General can determine by adjudication

that an individual alien’s crime was “particularly serious,” or

9The BIA’s precedential decision in In re N-A-M- did not address

§ 1158(b)(2)(B)(I) because the asylum application in that case was

untimely. We therefore have no precedential decision of the BIA to be

accorded Chevron deference on the precise asylum question presented

here. 

DELGADO v. MUKASEY 14283
whether he must first by regulation provide that the particular

crime is to be so characterized. 

Our discussion of the withholding statute is instructive. Just

as with withholding, the agency initially made the determination whether an alien’s crime was particularly serious strictly

by adjudication, applying the Frentescu factors. See

Frentescu, 18 I. & N. Dec. at 247. Congress intervened in the

1990 Act only to ensure that certain crimes (aggravated felonies) would be categorically determined to be “particularly

serious,” regardless of the circumstances of their commission.10

Congress then added its permission for the Attorney General

in asylum cases to “designate by regulation offenses that will

be considered to be [particularly serious crimes].” Id. It is

most reasonable to interpret this provision as similarly concerned with the categorical designation of additional crimes

as “particularly serious.” Indeed, it would be difficult to designate by regulation crimes that “will be considered” to be

particularly serious unless the designation is categorical for

those crimes. The provision simply does not speak to the ability of the Attorney General to determine in an individual case

that the circumstances of an alien’s commission of a crime

made that crime particularly serious, even though the same

offense committed by other persons in other circumstances

would not necessarily be particularly serious. The statute does

not require the Attorney General to anticipate his adjudication

by a regulation covering each particular crime. See Ali, 468

F.3d at 469. 

[7] We therefore conclude that the BIA did not err in proceeding to determine by adjudication, in the absence of regulation, whether Delgado had committed a “particularly

serious” crime that rendered him ineligible for asylum. 

10As we described in the previous section, Congress relaxed its categorical bar somewhat with regard to withholding of removal. It did not do so

with regard to asylum. 

14284 DELGADO v. MUKASEY
C. The merits of the BIA’s decision

The next question for decision is whether we may review

the merits of the BIA’s determination that Delgado’s DUI

convictions were “particularly serious crimes.” We conclude

that we may not.11

[8] We are statutorily precluded from reviewing decisions

of the Attorney General “the authority for which is specified

under this subchapter to be in the discretion of the Attorney

General . . . , other than the granting of relief under section

1158(a) of this title [relating to asylum].”

12 8 U.S.C.

§ 1252(a)(2)(B)(ii). In Matsuk v. INS, 247 F.3d 999 (9th Cir.

2001), we were presented with a determination by the BIA

that an aggravated felony resulting in a sentence of less than

five years imprisonment was a “particularly serious” crime.

We held that the BIA’s ruling was an unreviewable discretionary decision within the meaning of the statutory bar. See

id. at 1002. In later explaining this ruling, we stated: 

[T]he decision at issue in Matsuk — whether to classify an alien’s past offense as a ‘particularly serious

crime’ under § 1231(b)(3)(B) — is a decision that is

entirely lacking in statutory guidelines. Under the

11Other circuits have split on this issue. The Seventh Circuit holds that

it is without jurisdiction to review the merits of the determination of an

alien’s crime to have been “particularly serious,” see Ali, 468 F.3d at 468;

Tunis v. Gonzales, 447 F.3d 547, 549 (7th Cir. 2006), but the Third Circuit

took a contrary position in Alaka, 456 F.3d at 94-101, as did the Second

Circuit in Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir. 2008). 

12The preservation of our authority to review discretionary decisions

relating to asylum is confined to decisions under § 1158(a), which does

not include the bar for “particularly serious” crimes. We have described

this provision authorizing review of an otherwise-unreviewable discretionary decision as relating to “the ultimate authority whether to grant asylum.” See Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th

Cir. 2003). Thus, not every ruling arising in an asylum case is subject to

review. See, e.g., Lanza v. Ashcroft, 389 F.3d 917, 924 (9th Cir. 2004). 

DELGADO v. MUKASEY 14285
language of the statute, this decision is left entirely

to the discretion of the Attorney General, with no

governing statutory standards. 

Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th

Cir. 2003). The language that Matsuk and Spencer found to

“specify” the authority to be discretionary in the Attorney

General, within the meaning of § 1252(a)(2)(B)(ii), was the

statutory provision denying withholding “if the Attorney General decides that . . . an alien has been convicted of a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B); see also

Spencer, 345 F.3d at 689-90. Virtually identical statutory language relates to asylum. Asylum is barred “if the Attorney

General determines that . . . the alien, ha[s] been convicted . . .

of a particularly serious crime.”

13 8 U.S.C.

§ 1158(b)(2)(A)(ii). The statutory language, therefore, suggests that the ultimate decision whether a crime is “particularly serious” is a discretionary decision not subject to our

review with regard both to withholding of removal and of asylum. 

[9] After the decisions in Matsuk and Spencer, Congress

enacted the REAL ID Act of 2005, which provides that nothing in the provision limiting review of the Attorney General’s

discretionary decisions “shall be construed as precluding

review of constitutional claims or questions of law raised

upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Our

decisions subsequent to the REAL ID Act make clear, however, that the ultimate determination by the Attorney General

that a crime is “particularly serious” is still an unreviewable

discretionary decision. We so stated in Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir. 2005). Then, in Afridi v.

Gonzales, 442 F.3d 1212 (9th Cir. 2006), we were presented

with a case where the IJ had failed to engage in a case13In Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), discussed later

in this opinion, we emphasized the statutory language “if the Attorney

General decides that” as granting unreviewable discretion. Id. at 655. 

14286 DELGADO v. MUKASEY
specific application of the Frentescu factors. Id. at 1219. We

determined that this failure raised a point of law, and we

remanded for further proceedings. Id. at 1219-21. In doing so,

however, we recognized the limits of the question of law that

we were deciding: “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.” Id. at 1218. A fair reading of

Afridi is that the ultimate determination of the “particularly

serious” nature of a crime is not subject to our review. 

[10] Most recently, we decided in Ramadan v. Gonzales,

479 F.3d 646 (9th Cir. 2007), that in preserving our authority

to review questions of law, the REAL ID Act permitted us to

review mixed questions of law and fact. Id. at 654. Ramadan

made clear, however, that the REAL ID Act did not “restore

[our] jurisdiction over discretionary determinations.” Id. And

it gave as an example of a statutorily-specified discretionary

determination the “Attorney General’s determination . . . that

an aggravated felony is a particularly serious crime,” citing

Matsuk. Id. at 655. It seems clear under our precedent, therefore, that the authority to review questions of law or mixed

questions of law and fact under the REAL ID Act did not

include a power to review a determination of the Attorney

General that a crime was “particularly serious.” 

The dissent reads Morales v. Gonzales, 478 F.3d 972 (9th

Cir. 2007), to hold that we have jurisdiction over the “particularly serious” question as it relates to asylum applications. We

do not read Morales to hold as much. To be sure, there is language in that case suggesting that the court had jurisdiction

over the “particularly serious” question because it fell under

an exception to the jurisdiction-stripping statute. Morales, 478

F.3d at 980 (“The denial of asylum is reviewable because it

is specifically exempted from § 1252(a)(2)(B)(ii)’s

jurisdiction-stripping provisions.”). The court, however, did

not review the merits of the “particularly serious” finding.

Instead, it determined whether the immigration judge relied

DELGADO v. MUKASEY 14287
on the wrong facts in concluding that the crime was particularly serious—a question of law that is reviewable. Morales,

478 F.3d at 981-83; see Afridi, 442 F.3d at 1218. 

Moreover, § 1252(a)(2)(B)(ii) excepts from the jurisdictional bar the granting of relief under § 1158(a), relating to the

authority to apply for asylum; it does not speak to § 1158(b),

which is the “particularly serious” provision. It is true that the

interrelation between §§ 1158(a) and (b) means that the success of an asylum application may depend on whether there

has been a “particularly serious” crime. That alone, however,

does not overcome the obvious problem that § 1252 excepts

only § 1158(a). Thus, neither the statutory framework nor

Morales supports the dissent’s theory that § 1252 excepts all

asylum-related decisions from its jurisdictional bar. 

Finally, in Morales we suggested that, because our past

decisions had held the Attorney General’s determination of a

“particularly serious” crime to be an unreviewable discretionary determination only with regard to aggravated felonies, it

would be an extension of our law to apply the same rule to

other crimes. See 478 F.3d at 979-80. Morales found it unnecessary to decide whether such an extension was appropriate,

but our analysis above should make it clear that, under our

precedent, the Attorney General’s unreviewable discretion

must extend to both aggravated felonies and other crimes, and

to both withholding of removal and asylum. The statutory

framework for all of these decisions is virtually identical. The

Attorney General exercises the same specified discretionary

authority, and applies the same statutory language that bars

relief, in all of these instances. There is, in our view, no analytically sound way to draw a line permitting review of some

of these determinations and excluding review of others. 

[11] We conclude, therefore that we are precluded by

§ 1252(a)(B)(ii) from reviewing the merits of the BIA’s determination that Delgado’s crimes were “particularly serious.”

That issue does not present a reviewable question of law

14288 DELGADO v. MUKASEY
within the meaning of the REAL ID Act, 8 U.S.C.

§ 1252(a)(2)(D). 

II. Relief under the Convention Against Torture

[12] We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to

review the BIA’s denial of Delgado’s claim for CAT deferral,

see Morales, 478 F.3d at 980-81, and we review that decision

for substantial evidence. Bellout v. Ashcroft, 363 F.3d 975,

979 (9th Cir. 2004). In order to be eligible for CAT deferral,

Delgado must prove that he is more likely than not to be tortured upon his return to El Salvador. Id.; 8 C.F.R.

§ 1208.17(a). 

[13] As the IJ noted, Delgado presented evidence that his

mother, and probably his father, were victims of the rampant

human rights violations that took place in El Salvador in the

late 1970s and early 1980s. However, Delgado has not provided sufficient evidence that he currently risks being harmed

if he returns to his native country. Country reports indicate

that conditions in El Salvador have improved significantly

since Delgado left the country, and that there is no longer evidence of politically motivated violence, killings, or disappearances in El Salvador. We therefore conclude that the BIA’s

decision that Delgado is not entitled to CAT deferral is supported by substantial evidence. 

Conclusion

The petition for review is DISMISSED in part and

DENIED in part. 

BERZON, Circuit Judge, dissenting: 

The majority opinion is seriously off-track with respect to

three of its four key holdings. As to the fourth, I agree that we

DELGADO v. MUKASEY 14289
are bound by Ninth Circuit precedent, but believe that precedent to be quite wrong, as well as inconsistent with the law

as it has been developing in other circuits. 

To summarize my views: 

First and most important, neither of the majority’s two

holdings concerning the “particularly serious crime” provisions of 8 U.S.C. §§ 1158(b)(2)(B) and 1231(b)(3)(B) can be

reconciled with the most basic principles of statutory interpretation. The majority concludes that the “particularly serious

crime” exclusions for asylum and withholding of removal

mean nearly the same thing, substantively and procedurally,

even though the language, structure, purpose, and context of

the two sections are all quite different. That simply cannot be.

For the reasons I discuss below, the only viable construction

of the “particularly serious crime” provision of § 1231(b)

(3)(B), the withholding version, is that only aggravated felonies can be “particularly serious crime[s].” And the only viable interpretation of the asylum “particularly serious crime”

provision, § 1158(b)(2)(B), is that the Attorney General can

make non-aggravated felonies “particularly serious crimes”

only through regulation, not on a case-by-case basis. 

Second, as to the jurisdictional issues, the majority’s conclusion that 8 U.S.C. § 1252(a)(2)(B)(ii) withdraws our jurisdiction to review the Board of Immigration Appeals’

(“BIA’s”) asylum decision is directly in conflict with Morales

v. Gonzales, 478 F.3d 972 (9th Cir. 2007). Morales held that

asylum issues generally are reviewable, even when committed

to the Attorney General’s discretion, because of an express

statutory provision pertaining only to asylum decisions. The

majority holds the opposite. Moreover, the majority does not

recognize that some of the specific claims Delgado seeks to

raise regarding the determination that his convictions constitute a “particularly serious crime” are, substantively and procedurally, “legal questions related to th[is] determination,” Id.

14290 DELGADO v. MUKASEY
at 980. Because they are, we have jurisdiction to decide them

even with regard to withholding of removal. Id. 

Third, the majority properly relies on Matsuk v. INS, 247

F.3d 999 (9th Cir. 2001), to hold that the BIA’s determination

that a crime is “particularly serious” for withholding purposes

is discretionary and so not reviewable. But Matsuk rests on

faulty premises, recently rejected by the Second and Third

Circuits in convincing opinions. In my view, Matsuk should

be reconsidered by this Court sitting en banc. 

I address each issue just outlined in turn.

I. Particularly Serious Crime Exceptions

A. Overview

Congress’s goal when it created the “particularly serious”

crime exception was, in part, to provide a basis for removal

of certain aliens convicted of criminal offenses that conforms

to our international commitments. This purpose resulted in

key differences between the “particularly serious crime” provisions applicable to withholding and those applicable to asylum. The majority’s opinion considers neither the origin of the

“particularly serious crimes” provisions nor the obvious differences between them, and so comes to the erroneous conclusion that the two provisions are both essentially identical and

essentially limitless. As a result, the majority allows to stand

the BIA’s conclusion that Delgado’s DUI convictions were

each “particularly serious crimes,” barring both asylum and

withholding relief, a conclusion that, as I shall show, clashes

with Congress’s underlying basis for adopting the “particularly serious crime” exception. 

1. The Refugee Convention and Protocol

The original source of the term “particularly serious crime”

is the 1951 Convention Relating to the Status of Refugees, 19

DELGADO v. MUKASEY 14291
U.S.T. 6259, 189 U.N.T.S. 150 (“Convention”). The Convention prohibits states from “return[ing] an alien to a country

where his ‘life or freedom would be threatened’ on account of

one of the enumerated reasons.” INS v. Cardoza-Fonseca, 480

U.S. 421, 429 (1987). An exception to this rule permits

removal of an alien who, “having been convicted . . . of a particularly serious crime, constitutes a danger to the community

of that country.” Convention, art. 33 (2). 

Both the duty not to remove an alien to a country where

such persecution is likely and the “particularly serious crime”

exception were adopted by the United States through accession to the 1967 UN Protocol relating to the Status of Refugees (“Protocol”), 19 U.S.T. 6223, 606 U.N.T.S. 267, which

includes the obligations previously enumerated in the Convention. Both the duty and the exception were incorporated,

in turn, in the Immigration and Nationality Act (“INA”) by

the Refugee Act of 1980. See Cardoza-Fonseca, 480 U.S. at

429; Matter of Frentescu, 18 I. & N. Dec. 244, 246 n.2, (BIA

1982). Thus, “[i]f one thing is clear from the legislative history of the . . . 1980 Act, it is that one of Congress’ primary

purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the

Status of Refugees.” Cardoza-Fonseca, 480 U.S. at 436. 

Consistent with this purpose, the Supreme Court has interpreted terms used in these 1980 refugee amendments to the

INA in light of their meaning under the Convention and Protocol. See id. at 439 nn.22 & 24 (citing UN High Commission

for Refugees, Handbook on Procedures and Criteria for

Determining Refugee Status, Ch. II B(2)(a) §§ 37-42 (1979)

(“Handbook”), and 1 A. Grahl-Madsen, The Status of Refugees in International Law 180 (1966)) (interpreting term “refugee” as used in § 243(h) of the INA by 1980 Act, through

reference to analysis of its meaning under the Protocol)). The

meaning of “particularly serious crime” under the Convention

and Protocol is thus critically important in interpreting the

same term in the INA. 

14292 DELGADO v. MUKASEY
Taking that approach, how serious is a “particularly serious

crime”? The Convention and Protocol do not provide a definition, but they do offer a basis for comparison with other

offenses. In Matter of Frentescu, the BIA pointed out that

because the Convention also established an exception to withholding of removal for “serious nonpolitical crimes” an alien

has committed outside the country where he has taken refuge,

“it should be clear that a ‘particularly serious crime’ . . . is

more serious than a ‘serious nonpolitical crime.’ ” Id. at 247

(emphasis added); see also 8 U.S.C. § 1231(b)(3)(B)(iii);

Convention art. 33(1)(F) (establishing that an “alien [who]

committed a serious nonpolitical crime outside the United

States before the alien arrived in the United States” is not eligible for withholding of removal) (emphasis added). In other

words, an offense that is less serious than a “serious nonpolitical crime” cannot be a “particularly serious crime.” The

Handbook, which “provides significant guidance in construing the Protocol,” Cardoza-Fonseca, 480 U.S. at 439 n.22,

describes a “serious non-political crime” as “a capital crime

or very grave punishable act.” Handbook, ¶ 155 (1992 ed.).

To qualify as a “particularly serious crime” under the Convention and Protocol, then, an offense must be more serious

than just any “very grave punishable act.”

1

While such an interpretation of “particularly serious crime”

may seem overly narrow, it is consistent with the basic premises of the Convention. Conviction for a “particularly serious

crime” permits removal of an alien to a country where it is

probable that he will be deprived of “life or freedom” on

1Confirming this understanding of the exception’s scope are the specific

examples of “particularly serious crime” offered by a leading commentator on the Convention. See Grahl-Madsen, Commentary on the Refugee

Convention, 1951, art. 33 cmt. 10 (1997). The examples given are

instances of murder with aggravating circumstances, for which conviction,

in our own legal system, would typically be punishable by death or a life

sentence. See id. (offering as examples of particularly serious crimes

“blowing up . . . a passenger airplane in order to collect life insurance, or

wanton killing in a public place.”). 

DELGADO v. MUKASEY 14293
account of protected grounds. Convention art. 33(1), (2). The

reason removal under these circumstances is justified is that

the alien has committed a crime so serious that, even if he

remained in his country of refuge, its state would be justified

in imposing grave punishment upon him.

In this case, the BIA determined that Delgado was ineligible for asylum and withholding of removal because his three

DUI convictions constituted a “particularly serious crime”

under both §§ 1231(b)(3)(B) and 1158(b)(2)(B), relating to

withholding of removal and asylum respectively. Among

these offenses was a conviction for driving under the influence causing death or bodily injury, which resulted from an

accident where Delgado and his passenger (and possibly,

though the record is unclear, the occupants of the other vehicle) were seriously injured. While I in no way minimize the

seriousness of Delgado’s offenses, I do not see how a DUI —

which, as the majority recognizes, is not an “aggravated felony” for purposes of our own immigration law, see Maj. Op.

at 14275 — can be a “particularly serious crime” in the sense

that Congress understood the term when it incorporated it into

the INA — at least with respect to withholding of removal,

which, as I explain shortly, is the bedrock protection afforded

aliens in danger of persecution in their home countries on a

protected ground. 

2. Asylum and Withholding of Removal

A conviction for a “particularly serious crime” makes an

alien ineligible for asylum, as well as for withholding of

removal. § 1158(b)(2)(B) (asylum); § 1231(b)(3)(B) (withholding). However, “Congress has drawn a critical distinction

in its use of the term ‘particularly serious crime’ ” in

§ 1158(b)(2)(B) as compared with the use of the same term in

§ 1231(b)(3)(B), In re L-S-, 22 I. & N. Dec. 645, 652 (BIA

1999), and for good reason. 

Regarding eligibility for withholding of removal,

§ 1231(b)(3)(B) states that, 

14294 DELGADO v. MUKASEY
[A]n 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. 

In the case of eligibility for asylum, § 1158(b)(2)(B) establishes that,

[A]n alien who has been convicted of an aggravated

felony shall be considered to have been convicted of

a particularly serious crime. 

. . . The Attorney General may designate by regulation offenses that will be considered to be a [particularly serious] crime . . . 

The obvious differences in the statutory text of these two

subsections suggest three distinctions in meaning. 

First, the category of per se “particularly serious crime[s]”

is broader in the asylum context than it is in the case of withholding of removal. Section 1158(b)(2)(B) makes all aggravated felonies per se “particularly serious crime[s]” for

asylum purposes, while § 1231(b)(3)(B), pertaining to withholding of removal, only makes aggravated felonies “for

which the alien has been sentenced to an aggregated term of

at least five years imprisonment” a per se category of “particularly serious crime[s].” 

Second, with regard to asylum, the statutory structure and

language suggest no express limitation as to which crimes

may be designated as “particularly serious.” Rather, all aggravated felonies are per se “particularly serious,” and other

DELGADO v. MUKASEY 14295
crimes may be so designated. In contrast, the withholding of

removal provision confers on the Attorney General the

authority to determine that an offense is a “particularly serious crime” notwithstanding the length of the sentence

imposed, but does not confer any express authority to designate non-aggravated felonies as “particularly serious.” 

Third, the two subsections define differently how offenses

outside of these per se categories may be determined to constitute particularly serious crimes. The asylum provision states

that “the Attorney General may designate by regulation

offenses that will be considered particularly serious crimes.”

(emphasis added). By contrast, the withholding provision

gives the Attorney General the general authority to “determine” whether a crime is particularly serious, indicating that

any otherwise permissible method of determination is

allowed. 

The majority concludes that these obvious distinctions are

without much practical difference. On the majority’s view, the

only difference between the two “particularly serious crime”

exceptions is that for asylum purposes all aggravated felonies

are per se particularly serious crimes, while for withholding

purposes only aggravated felonies for which the sentence was

longer than five years are automatically particularly serious.

As to the Attorney General’s ultimate authority — to designate any crime as particularly serious — and methodology —

to designate crimes as particularly serious by regulation or on

a case-by-case basis — the majority sees the two statutes as

identical. Why Congress bothered to word the otherwise parallel sections so differently in this regard when it meant the

same thing we are not told. 

Taking together the guidance provided by Congress’s

intention to abide by the Protocol and Convention and the

very different statutory language Congress used with regard

to asylum and withholding of removal, I would begin my

interpretation of the statute by recognizing — as the majority

14296 DELGADO v. MUKASEY
does not — that Congress wrote two different “particularly

serious crime” provisions because it meant two different

things. Critically, asylum and withholding of removal differ

under the INA in ways other than the differences in their “particularly serious crime” provisions, and do so in ways connected to the Protocol and the Convention. These other

differences go a long way toward explaining why the “particularly serious crime” exception is considerably broader substantively but more restrictive procedurally for asylum than

for withholding of removal. 

For an alien to be granted withholding of removal under the

INA, he must show that it is “more likely than not” that he

will be persecuted in the country to which he otherwise would

be removed. INS v. Stevic, 467 U.S. 407, 424 (1984); 8 U.S.C.

§ 1231(b)(3)(A) (prohibiting removal of an alien whose “life

or freedom would be threatened in that country [to which the

alien otherwise would be removed] because of [a protected

ground]”). Withholding of removal thus represents the minimum level of relief required by the Convention and Protocol.

Compare § 1231(b)(3)(A), to Convention, art. 33 (1) (stating

that no Contracting State may “return (‘refouler’) a refugee

. . . to the frontiers of territories where his life or freedom

would be threatened on account of [a protected ground]”).

Accordingly, such relief is mandatory if an alien is eligible.

See 8 U.S.C. § 1231(b)(3)(A)(“[T]he 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 . . .” (emphasis added)); Stevic, 467 U.S. at 421

n.15. 

By contrast, to be eligible for asylum an alien is not

required to show that it is “more likely than not,” id. at 424,

that he will be persecuted in the country to which he would

be removed. Instead, he need only show that he has been persecuted on account of a protected ground in the past, or that

he has a “well-founded fear” of persecution in the future. See

8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). To establish such

DELGADO v. MUKASEY 14297
a well-founded fear, an applicant need only show a one in ten

chance of persecution. See Cardoza-Fonseca, 480 U.S. at

431. At the same time, the granting of asylum to eligible

aliens is discretionary, not mandatory. See 8 U.S.C. § 1158

(b)(1)(A) (“(T)he Attorney General may grant asylum . . .”

(emphasis added)). The reason that this discretionary benefit

is consistent with this country’s obligations under the Convention and Protocol, and therefore with Congress’ intention

to “bring United States refugee law into conformance with the

. . . Protocol,” Cardoza-Fonseca, 480 U.S. at 436, is that the

standards for eligibility for asylum are more relaxed than the

Convention and Protocol require. As a result, as Congress

understood, asylum need not conform in all respects with the

international commitments, as long as withholding relief does

so conform. 

These substantive differences between asylum and withholding of removal under the INA have important implications for how the “particularly serious crime” exception

applies to each form of relief from removal. Withholding of

removal is the form of relief essential to Congress’s goal of

“conformance with the . . . Protocol.” Id. at 436. That goal can

only be achieved if a “particularly serious crime” for which

an alien is denied eligibility for withholding of removal under

the statute also qualifies as such under the Protocol itself. Not

so with asylum, because asylum relief, as a whole, is not

structured to conform to the Protocol. 

This critical substantive distinction between asylum and

withholding of removal suggests some answers to the key

question that the majority, puzzlingly, does not even ask:

Why did Congress in IIRIRA adopt such distinctly different

statutory language to define the same term — “particularly

serious crime” — in § 1231(b)(3)(B), relating to withholding

of removal, and in § 1158 (b)(2)(B), relating to asylum? The

evident reasons are two. 

First, with respect to the asylum exception, Congress did

not need to give the Attorney General the authority to “deter14298 DELGADO v. MUKASEY
mine” on a case-specific basis which offenses constitute “particularly serious crime[s].” Even for aliens eligible for

asylum, the Attorney General can exercise discretion not to

grant asylum because of the alien’s criminal record, whether

the alien has committed a “particularly serious crime” or not.

The only reason to specify “particularly serious crimes” for

asylum eligibility purposes, consequently, is to provide for

uniformity with regard to categories of crimes. By contrast,

aliens who qualify for withholding of removal are mandatorily entitled to such relief, see Stevic, 467 U.S. at 421 n.15,

so there could be no case-by-case individualized “determin[ation]” based on criminal history without specific statutory

authorization. 

Second, the difference between the eligibility and discretion

standards applicable to asylum and withholding of removal

also helps explain why Congress made all aggravated felonies, not only those with sentences of five years or more, per

se “particularly serious crime[s]” for asylum purposes and

also why Congress did not restrict “particularly serious

crimes” to aggravated felonies for that purpose. Limitations

on asylum relief do not risk violation of the Protocol, so long

as withholding of removal relief conforming to the Protocol

remains available. See, generally, L-S-, 22 I. & N. Dec. at 652

(stating that “the reason for [Congress’] . . . different

approach” in § 1158 (b)(2)(B) and § 1231(b)(3)(B) is that

“Congress understood that in enacting revised section

[§ 1231](b)(3), it was carrying forth the statutory implementation . . . of our international treaty obligations”). Consequently, there was reason for Congress to take particular care

with regard to withholding of removal, to assure that aliens

who otherwise meet the statutory requirement for relief are

denied this relief only for offenses that are likely to meet the

“particularly serious crime” exception in the Protocol. 

The majority turns a blind eye to all of these considerations

— the meaning of the “particularly serious crime” locution in

the original internal documents, the differences between asyDELGADO v. MUKASEY 14299
lum and withholding relief, and the obvious distinctions

between the asylum and withholding “particularly serious

crimes” exceptions. Not surprisingly, given its out-of-context

approach, the majority’s ultimate conclusions on the “particularly serious crime” issues are wrong as well. 

B. 8 U.S.C. § 1231(b)(3)(B) — Withholding of Removal

The majority concludes that § 1231(b)(3)(B) authorizes the

Attorney General to designate any non-aggravated felony as

a “particularly serious crime” for purposes of eligibility for

withholding of removal.2 Even on its own narrow terms, the

majority’s reasoning in so concluding is inconsistent with a

plain reading of the text, with established canons of statutory

interpretation, and with the history of the provision.

1. Statutory Language

Initially, as the Third Circuit held in Alaka v. Atty. Gen. of

2The majority views this issue as one of first impression in our circuit.

In so concluding, the majority misreads our decision in Morales as having

“assumed . . . [that] the Attorney General could deem a non-aggravated

felony ‘particularly serious.’ ” Maj. Op. at 14279 n.5. In fact, Morales recognized that such an interpretation is not in accord with our previous

cases; instead, it “broadens the discretion we have previously determined

that § 1231(b)(3)(B)(ii) gives the Attorney General.” 478 F.3d at 979-80

(citing Afridi v. Gonzales, 442 F.3d 1212, 1217 (9th Cir. 2006);

Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir. 2005); Singh v. Ashcroft, 351 F.3d 435, 439 (9th Cir. 2003); Matsuk, 247 F.3d at 1002)).

Morales went on to make clear that the question whether the Attorney

General’s discretion is broader than we had previously held it was would

“not be determined in this case.” Id.

Quite arguably, the question is not one that can be properly decided by

a three-judge panel, given the earlier cases construing § 1231(b)(3)(B) as

not encompassing the broad discretion the BIA now claims. See In re

Complaint of Ross Island Sand & Gravel, 226 F.3d 1015, 1018 (9th Cir.

2000) (“[A]bsent a rehearing en banc, we are without authority to overrule

[circuit precedent]”). I nonetheless in this dissent meet the majority on its

own ground, rather than resting on stare decisis. 

14300 DELGADO v. MUKASEY
the United States, 456 F.3d 88 (3d Cir. 2006), a plain words,

common sense reading of § 1231(b)(3)(B) indicates that Congress did not authorize the Attorney General to designate nonaggravated felonies as particularly serious crimes. See id. at

104. After specifying that any aggravated felony resulting in

a sentence of five years or more “shall be considered . . . a

particularly serious crime,” § 1231(b)(3)(B) provides that “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.” Quite obviously, the authority conferred — to “determin[e] that, notwithstanding the length of sentence imposed,

an alien has been convicted of a particularly serious crime” —

refers to the limitation imposed in “the previous sentence” —

whether the offense carried an “aggregate term of imprisonment of at least five years.” Id. (emphasis added). 

This Court has at least three times previously recognized

that this is the natural reading of the statutory text. See Villegas v. Mukasey, 523 F.3d 984, 987 (9th Cir. 2008) (“Crimes

resulting in imprisonment for at least five years are ‘particularly serious’ per se, while the Attorney General can determine that any aggravated felony, regardless of the sentence

imposed is particularly serious.”); Afridi, 442 F.3d at 1217

(stating that § 1231(b)(3)(B)(ii) provides the Attorney General with “discretion to determine whether an aggravated felony conviction resulting in a sentence of less then five years

is a particularly serious crime”); Singh v. Ashcroft, 351 F.3d

435, 439 (9th Cir. 2003) (“An aggravated felony that results

in at least a five-year sentence is considered a particularly

serious crime. Moreover, under Section 1231(b)(3)(B)(ii) the

Attorney General may determine that any aggravated felony,

even one that results in a sentence of less than five years,

qualifies as particularly serious.”). That this court has repeatedly regarded that understanding of the provision as the

facially apparent one confirms that it is the ordinary meaning

that a reader takes from it. I submit that the reason these cases

DELGADO v. MUKASEY 14301
did not saying anything more on the matter is that there is

nothing more to say, once one reads the statute. 

The majority, however, regards our earlier cases as not having adequately addressed the possibility that non-aggravated

felonies are “particularly serious crimes,” and goes on to

adopt the reasoning of the Seventh Circuit’s decision in Ali v.

Achim, 468 F.3d 462 (7th Cir. 2006), cert. granted, 128 S. Ct.

29, cert. dismissed, 128 S. Ct. 828 (2007). Ali’s interpretation,

later adopted by the BIA in In re N-A-M-, 24 I. & N. Dec. 336

(BIA 2007), relies on what the statute doesn’t say, rather than

on what it does, asserting that because “§ 1231 does not state

a general rule that only aggravated felonies can be considered

‘particularly serious’ crimes,” § 1231(b)(3)(B) “creates no

presumption that the Attorney General may not exercise discretion on a case-by-case basis to decide that other

nonaggravated-felony crimes are also ‘particularly serious.’ ”

468 F.3d at 470. Ali — and the majority’s — reading of

§1231(b)(3)(B) runs counter to basic principles of statutory

construction. 

First, the Ali/N-A-M- interpretation renders the sentence

that begins “the previous sentence” entirely superfluous. If

Congress’s (unstated) understanding was that the Attorney

General could designate any offense as a particularly serious

crime, then why would Congress need to say anything to

negate the contrary implication of the “previous sentence”?

And once Congress did choose to clarify that some discretion

remained to the Attorney General, why would it limit that

clarification to extending this authority “notwithstanding the

length of a sentence,” if it meant to allow unlimited discretion? We simply don’t read statutes as throwing around loose,

meaningless language for no discernible reason. See United

States v. Novak, 476 F.3d 1041, 1048 (9th Cir. 2007) (stating

that courts should “avoid whenever possible statutory interpretations that result in superfluous language”). Yet, that is

what the majority, relying on Ali and N-A-M-, proposes. 

14302 DELGADO v. MUKASEY
The majority’s interpretation of §1231(b)(3)(B) also conflicts with another basic interpretive rule, “expressio unius est

exclusio alterius,” which specifies that the inclusion of one

item ordinarily excludes similar items that could have been,

but were not, mentioned. See Barnhart v. Peabody Coal Co.,

537 U.S. 149, 168 (2003). Section 1231(b)(3)(B) specifically

permits the Attorney General to designate aggravated felonies

resulting in prison terms of less than five years as “particularly serious crime[s].” “[W]hen the items expressed are

members of an associated group . . . the inference [is] that

items not mentioned were excluded by deliberate choice.” Id.

(internal quotation marks omitted). Whether we define the

“associated group” here as “crimes,” “felonies” or “aggravated felonies,” the sole members of the group named in

§ 1231(b)(3)(B) are convictions for aggravated felonies:

those carrying sentences of more than five years, and those

carrying sentences of less than five years. The fact that nonaggravated felonies were not mentioned at all necessarily suggests that Congress did not intend to include them as “particularly serious crime[s]” for purposes of withholding of

removal. 

Ali suggests that the canon does not apply in this case

because “§ 1231 does not state a general rule that only aggravated felonies can be considered ‘particularly serious.’ ” 468

F.3d at 470. But this rejoinder turns the canon of construction

backwards. The canon looks to what a statute includes

(“expressio unius”), to determine what it does not (“exclusio

alterius”), not vice versa. 

Moreover, and critically, the majority’s interpretation fails

to give effect to the distinctions in statutory language between

§ 1231(b)(3)(B) and § 1158(b)(2)(B). The latter states, in

§ 1158(b)(2)(B)(i), that any “[c]onviction of an aggravated

felony,” is a particularly serious crime, but then adds, in

§ 1158(b)(2)(B)(ii), that “[t]he Attorney General may designate by regulation offenses that will be considered” a particularly serious crime, without any mention of “the length of the

DELGADO v. MUKASEY 14303
sentence imposed.” The majority nonetheless reads the

authority accorded the Attorney General under the two quite

different “particularly serious crime” provisions as identically

broad. “[W]here Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.” Tang

v. Reno, 77 F.3d 1194, 1197 (9th Cir. 1996). 

To make matters worse, the majority’s interpretation of

§ 1231(b)(3)(B)(ii) is also inconsistent with the rest of the

subsection. As I explained earlier, the subsection also provides that an “alien [who] committed a serious nonpolitical

crime outside the United States before the alien arrived in the

United States” is ineligible for withholding of removal.

§ 1231(b)(3)(B)(iii) (emphasis added). “[W]hat constitutes a

‘serious nonpolitical crime’ is not susceptible of rigid definition.” INS v. Aguirre-Aguirre, 526 U.S. 415, 429 (U.S. 1999)

(quoting Deportation Proceedings for Doherty, 13 Op. Off.

Legal Counsel 1, 23 (1989)). Still, the offenses that the BIA

has considered “serious nonpolitical crimes,” typically fall

well within the current definition of aggravated felony. Compare, e.g., id. at 420-21 (battery, and destruction of public and

private property); Kenyeres v. Ashcroft, 538 U.S. 1301, 1306

(2003) (money-laundering for organized crime); to 8 U.S.C.

§ 1101(a)(43)(D) (defining “aggravated felony” as including

money laundering); § 1101(a)(43)(F) (defining “aggravated

felony” as including crimes of violence against persons or

physical property). Yet, “a ‘particularly serious crime’ . . . is

more serious than a ‘serious nonpolitical crime,’ ” Frentescu,

18 I. & N. Dec. at 247 (emphasis added). So, unless the statute is hopelessly internally inconsistent, offenses less serious

than aggravated felonies cannot be “particularly serious

crime[s]”. See Padash v. INS, 358 F.3d 1161, 1170-71 (9th

Cir. 2004) (“We must make every effort not to interpret the

provision at issue in a manner that renders other provisions of

the same statute inconsistent . . . .” (internal quotation marks

and brackets omitted)). 

14304 DELGADO v. MUKASEY
The short of the matter is that the majority’s reading of

§ 1231(b)(3)(B)(ii), like the BIA’s reading in N-A-M-, clashes

with one principle of statutory interpretation after another.

Applying those principles, there is nothing ambiguous about

the withholding exception for “particularly serious crimes.”

And because the application of a myriad of “the traditional

tools of statutory interpretation” to § 1231(b)(3)(B) shows

that “the intent of Congress” — that non-aggravated felonies

cannot qualify as “particularly serious crimes” for purposes of

withholding of removal — is clear from the face of the statute, Sloan v. West, 140 F.3d 1255, 1261 (9th Cir. 1998), we

need not, contrary’s to the majority’s assertion, extend Chevron deference to the BIA’s position in N-A-M- on this issue.

See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n.9

(1984); see also Bell v. Reno, 218 F.3d 86, 94 (2d Cir. 2000)

(“An agency’s interpretation of a statutory provision is not

reasonable when it ignores an established rule of statutory

construction set forth by the Supreme Court.”). 

The BIA’s opinion in N-A-M- does not warrant Chevron

deference for the additional reason that the Board itself did

not consider the opinion to reflect its reasonable interpretation

of an ambiguous statute. Rather, the Board concluded that its

position was compelled by a “plain reading of the Act.” See

N-A-M-, 24 I. & N. at 338. Because the Board was not

attempting to fill a gap left by Congress, it was not acting pursuant to an agency’s general authority to resolve statutory

ambiguities, and its decision is therefore not entitled to deference. See Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier

Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006)

(“[D]eference to an agency’s interpretation of a statute is not

appropriate when the agency wrongly believes that interpretation is compelled by Congress.”) (internal quotations marks

and citations omitted).

2. Legislative History

On my understanding of the withholding exception for

“particularly serious crime[s],” the analysis should stop with

DELGADO v. MUKASEY 14305
the words of the statute, read common-sensically, in context,

and in light of established principles of statutory interpretation. See Cardoza-Fonseca, 480 U.S. at 452-53 (Scalia, J.,

concurring) (“Where the language of [a] law[ ] is clear, we are

not free to replace it with an unenacted legislative intent;” nor

is an “exhaustive analys[is]” of a statute’s legislative history

appropriate “where the language of the enactment at issue is

clear.”); see also United States v. Ron Pair Enters., Inc., 489

U.S. 235, 240-41 (“[A]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to

inquire beyond the plain language of the statute.”). The

majority and N-A-M- nonetheless insist on reading the statute

through the prism of its history, rather than on its face — and

doing so, get the message of that history dead wrong. 

As the majority accurately recounts, the “particularly serious crimes” concept first appeared in the INA in 1980, in a

provision denying withholding of removal to an alien who,

“having been convicted by a final judgment of a particularly

serious crime, constitutes a danger to the community of the

United States.” Pub. L. No. 96-212, § 200, 94 Stat. 102

(1980). The majority does not recognize, however, that the

original “particularly serious crime” concept was adopted

from the Refugee Convention and Protocol’s non-refoulement

provision, not created out of whole cloth by Congress. As

such, the concept was intended, as its words suggest, as a

quite narrow exception to the responsibility not to send aliens

back to countries where they are likely to be persecuted on

protected grounds, for crimes not only “serious,” but “particularly serious.” 

The changes to § 243(a) here relevant all furthered Congress’s intent to assure compliance with the Refugee Convention and Protocol. First, in the Immigration Act of 1990

(“1990 Act”), soon after the first appearance of the “aggravated felony” concept in the INA in 1988, See Pub. L. 100-

690, § 7342, 102 Stat. 4181 (1988), Congress created a categorical bar to withholding of removal for aliens convicted of

14306 DELGADO v. MUKASEY
aggravated felonies by designating all such offenses per se

“particularly serious crimes.” See Pub. L. No. 101-649, 104

Stat. 4978, 5053. At the time, the crimes designated as “aggravated felonies” were indeed quite serious, so designating

them as per se “particularly serious” was a way of assuring

uniformity and efficiency. See Pub. L. No. 100-690, § 7342,

102 Stat. 4181, 4469-4470 (1988 version of the INA)

(“aggravated felony” defined as: “murder; any drug trafficking crime, . . . or any illicit trafficking in any firearms or

destructive devices”); also Pub. L. No. 101-649, § 501, 104

Stat. 4978, 5048 (Immigration Act of 1990) (money laundering and crimes of violence for which the term of imprisonment is at least five years added to list of “aggravated

felon[ies]”).

Next, in 1996, Congress enacted the Antiterrorism and

Effective Death Penalty Act (AEDPA), which “expanded the

definition of aggravated felony” to include a much greater

range of offenses, thus broadening the “particularly serious

crime” exception’s reach. See Choeum v. INS, 129 F.3d 29, 42

(1st Cir. 1997). Because AEDPA’s expanded definition of

aggravated felony “include[d] crimes that might be considered less serious than those the Protocol intended to cover in

its exclusion clause,” Congress became concerned that application of the categorical bar would result in removals that did

not conform to the Protocol. Id. As Senator Kennedy

explained,

[T]o declare an aggravated felon anyone convicted

of an offense involving imprisonment of one year,

. . . means that people with fairly minor offenses

would be ineligible to seek withholding of deportation, [which] in many instances may violate the Refugee Convention. 

Mark-up on S. 1664 before the Senate Committee on the Judiciary, 104th Cong., 2d Sess. 60-61 (1996). To address this

concern, Congress included in AEDPA a provision allowing

DELGADO v. MUKASEY 14307
the Attorney General to override the 1990 Act’s categorical

designation of “aggravated felonies” as “particularly serious

crimes” if withholding of removal was “necessary to ensure

compliance with the 1967 United Nations Protocol Relating

to the Status of Refugees.” 8 U.S.C. § 1253(h) (current version at § 1231(b) (1996)); Choeum, 129 F.3d at 43 (1st Cir.

1997). 

The final step in the evolution of the withholding of

removal “particularly serious crime” exception was the enactment, later in 1996, of IIRIRA, which gave us the current statutory text of the INA and yet again expanded significantly the

“aggravated felony” concept. See Pub. L. No. 104-208, Div.

C, § 321, 110 Stat. 3009-546, 3009-627-3009-628. In particular, for several offenses Congress reduced the minimum penalty necessary for a conviction to qualify as an aggravated

felony from five years to one, see § 321 (a)(3), (10), (11).

This vast broadening of the “aggravated felony” category of

crimes had obvious implications for the usefulness of that category as a stand-in for the “particularly serious crime” withholding exception. It was in that context that Congress, in

IIRIRA, removed the 1990 Act’s broad categorical bar for all

aggravated felonies as well as AEDPA’s override provision,

substituting for both (1) the narrower categorical bar for

aggravated felonies “for which the alien has been sentenced

to an aggregate term of imprisonment of at least 5 years,” and

(2) the provision for “the Attorney General . . . [to] determin[e] that, notwithstanding the length of sentence imposed,

[the] alien has been convicted of a particularly serious crime.”

The current statutory text thus is most sensibly understood as

still another attempt to implement the “particularly serious

crime” exception in a manner that conforms with the Protocol,

this time accounting for IIRIRA’s further broadening of the

aggravated felony category by both limiting the per se category to a subset of aggravated felonies and limiting “particularly serious crimes” to only aggravated felonies. 

14308 DELGADO v. MUKASEY
Nothing in this history suggests a Congressional intent in

1996 to allow the Attorney General to designate as “particularly serious crimes” offenses so minor that Congress did not

regard them as within the now broad category of “aggravated

felonies” used for other INA and immigration law purposes.3

Put another way, nothing in the sequence of enactments ending in the current version of § 1231(b)(3)(B) indicates that

Congress intended to allow an alien to be removed to a country where he probably will be persecuted on account of his

race, religion, nationality, membership in a particular social

group, or political opinion, because he committed a crime too

minor to be designated an “aggravated felony” under the INA

— too minor, for example, to disqualify him from other forms

of relief or to require that he be detained pending removal

proceedings. Instead, the current version of the statute recognizes that even among the crimes designated as “aggravated

felonies,” many — perhaps most — now would not meet the

“particularly serious” exception of the Protocol and Convention, and so leaves the Attorney General the task of sorting

out, on a case-by-case basis, which of the expanded class of

“aggravated felonies” are “particularly serious.” 

In sum, the statutory text of § 1231(b)(3)(B), interpreted in

context and in light of established canons of statutory construction, can only be read — and we have always read it —

as providing the Attorney General the authority to determine

that aggravated felonies with sentences of less than a year, but

not other crimes, are “particularly serious” for the purposes of

eligibility for withholding of removal. Nothing in the legislative history indicates otherwise. I therefore cannot agree with

the majority’s conclusion that the Attorney General has free

3Among other things, the “aggravated felon[ ]” designation requires

mandatory detention, 8 U.S.C. § 1226(c)(1)(B), permits expedited removal

proceedings, 8 U.S.C. § 1228, and may disqualify the alien from benefits

such as cancellation of removal for permanent residents, 8 U.S.C.

§ 1229b(a), temporary protected status, 8 U.S.C. § 1254a(c)(2), and preand post-hearing voluntary departure, 8 U.S.C. §§ 1229c(a)(1) & (b)(1). 

DELGADO v. MUKASEY 14309
rein to call any crime “particularly serious” and so send an

alien to a country where he is likely to be persecuted. 

C. 8 U.S.C. § 1158 (b)(2)(B)(ii) — Asylum

Nor can I agree with the majority’s reading of the quite different asylum provision concerning “particularly serious

crimes.” Adopting, once again, the reasoning of the Seventh

Circuit in Ali, the majority concludes that the IJ was authorized to decide on a case-specific basis that Delgado’s nonaggravated felony convictions also qualified as particularly

serious crimes, rendering him ineligible for asylum under

§ 1158 (b)(2)(B). See 468 F.3d at 469 (stating that § 1158

(b)(2)(B) does not require the Attorney General to anticipate

his adjudication by regulation covering every single crime.).4

And this interpretation is, once again, in conflict with the

plain words, common sense reading of the statute. 

Congress explicitly stated that the authority granted in 8

U.S.C. § 1158 (b)(2)(B)(ii) to “designate . . . offenses that will

be considered to be a [particularly serious crime]” is an

authority that may be exercised “by regulation.” The majority

maintains that the “by regulation” language pertains only to

categorical exceptions, and that the BIA can also proceed by

case-by-case adjudication. 

The first problem with this reading of the statute is that it

is not what the statute says. The “by regulation” sentence is

general; it is not limited to categorical distinctions. And the

4As to this issue, neither the BIA’s decision in this case, nor its underlying opinion reviewed in Ali are published opinions. No published BIA

opinion discusses whether § 1158 (b)(2)(B) permits the determination of

whether an offense is a “particularly serious crime” on a case-by-case

basis, rather than “by regulation.” We therefore do not owe the BIA Chevron deference on this point. See Garcia-Quintero v. Gonzales, 455 F.3d

1006, 1012-14 (holding that unpublished BIA decisions are not entitled to

Chevron deference). 

14310 DELGADO v. MUKASEY
statute does not provide for any other way of determining that

offenses are “particularly serious” for asylum purposes. 

Moreover, the majority’s implication from silence does not

explain why Congress included the “by regulation” sentence.

Indeed, under the majority’s interpretation, the sentence is —

once more — entirely surplusage. “Absent express congressional direction to the contrary, agencies are free to choose

. . . between rule making and adjudication.” Davis v. EPA,

348 F.3d 772, 785 (9th Cir. 2003) (parentheses and citations

omitted). The INA provides the Attorney General broad

power to “establish such regulations . . . as he deems necessary for carrying out his authority under the provisions of this

chapter.” 8 U.S.C. § 1103(a) (current § 1103(g)(2); United

States v. Chen, 2 F.3d 330, 333 (9th Cir. 1993)). So there was

no need to include the “by regulation” sentence in

§ 1158(b)(2)(B) to authorize the BIA to issue regulations designating categories of offenses as “particularly serious crime-

[s].” That authority existed already. 

Similar language concerning the promulgation of regulations as to particular issues has been understood to require

regulations as the mode of agency decisionmaking as to that

issue. See Davis, 348 F.3d at 785 (citing 42 U.S.C.

§ 7545(a)’s directive that “[t]he Administrator may by regulation designate any fuel . . . [for registration pursuant to

§ 7545(b)])” as proof that “Congress knew how to impose

rulemaking requirements under the Clear Air Act when it

wanted to do so”) (emphasis added)). Moreover, Congress

could have specified that the Attorney General was authorized

to make “particularly serious crime” determinations via adjudication, via regulation, or via both methods. As it chose to

only specify “by regulation,” § 1158 (b)(2)(B), the necessary

— and non-superfluous — implication is that it chose to

exclude the other options. See Barnhart, 537 U.S. at 168. 

This implication is strengthened by the consideration that

no similar “by regulation” sentence appears in the withholdDELGADO v. MUKASEY 14311
ing of removal section governing “particularly serious

crimes,” a difference that should be accorded some significance. See City of Chicago v. Envtl. Def. Fund, 511 U.S. 328,

338 (1994) (“It is generally presumed that Congress acts

intentionally and purposely when it includes particular language in one section of a statute but omits it in another”)

(internal quotation marks omitted) (citing Keene Corp. v.

United States, 508 U.S. 200, 208 (1993)). Given the general,

broad statutory authorization Congress gave the Attorney

General to issue regulations, we could not reasonably surmise

that the Attorney General is precluded from issuing regulations to implement the withholding of removal “particularly

serious crime” provisions by specifying categories of offenses

as particularly serious. The only sensible implication from

this difference between the two “particularly serious crime”

provisions, consequently, is that the Attorney General can, but

need not, proceed by regulation rather than case-by-case adjudication with respect to withholding, but must proceed by regulation with regard to the exception to eligibility for asylum.

This understanding of the textual differences makes perfect

sense in light of other differences between asylum and withholding of removal. The Attorney General retains discretion

to decide on a case-by-case basis whether to grant asylum to

eligible applicants. Cardoza-Fonseca, 480 U.S. at 429, n.6.

As an individualized determination occurs down-the-line in

the asylum process, there was no reason to provide for such

a case-by-case process at the eligibility stage. In contrast,

withholding of removal is mandatory for eligible applicants,

so any individualized determination must occur at the eligibility stage. There is also less need for case-by-case determination with regard to asylum, because a denial of asylum to an

otherwise eligible alien does not directly raise the risk of noncompliance with the Refugee Convention. Cf. L-S-, 22 I. & N.

Dec. at 652. Recognizing these differing concerns at issue in

the two contexts results in an interpretation of the procedural

requirements of § 1158(b)(2)(B) more faithful to Congress’

purposes than the one-size-fits-all approach adopted by the

14312 DELGADO v. MUKASEY
majority. Cf. L-S-, 22 I. & N. Dec. at 652 (interpreting

1158(b)(2)(B), and § 1231(b)(2)(B) in same way “annul[s] the

deliberate distinction made by Congress in the IIRIRA.”). 

Further, on my reading, Congress has already designated

for withholding purposes the universe of offenses that can be

designated as “particularly serious crimes” — aggravated felonies, as defined in the INA. See 8 U.S.C. § 1101(a)(43). As

the authority accorded the Attorney General with regard to

asylum is not so circumscribed, Congress could well have

preferred a formal process, subject to public comment and to

uniform application. 

Finally, making such designations “by regulation” would

not require the Attorney General to “sift through each state’s

[penal] code” to “identify through regulation every single

‘particularly serious’ [crime].” Ali, 468 F.3d at 469, cited in

the majority opinion at 14284. As the majority recognizes, the

Attorney General could issue regulations designating specific

categories of non-aggravated felonies as particularly serious

crimes, just as Congress already has done by statute for aggravated felonies. See, e.g., 8 U.S.C. § 1101(a)(43) (designating

certain categories of crimes as aggravated felonies). Alternatively, just as the BIA already does through adjudication in

the case of aggravated felonies, the Attorney General could

specify, through rule-making, those factors which would render a non-aggravated felony conviction a particularly serious

crime for this purpose. See Miguel-Miguel v. Gonzales, 500

F.3d 941, 949 (9th Cir. 2007) (holding that the Attorney General has the authority to “create a strong presumption that

drug trafficking offenses are particularly serious crimes”). 

In sum, Congress chose to require designation of nonaggravated felonies as “particularly serious crimes” for asylum purposes by formal promulgation of regulations, while

allowing case-by-case designation of “particularly serious

crimes” for withholding purposes, but only from among

aggravated felonies. Any other reading of the two statutes

DELGADO v. MUKASEY 14313
once again makes sameness out of difference and supposes

that Congress indulged in redundancy and indirection. 

II. Jurisdiction

The majority accepts that we may decide the issues I have

already discussed, presumably because they are purely legal

issues. See 8 U.S.C. § 1252(a)(2)(D). But the majority concludes that we lack jurisdiction to review the merits of the

BIA’s ultimate determination that Delgado’s DUI convictions

were “particularly serious crimes” under §§ 1158(b)(2)(A)(ii)

and 1231(b)(3)(B). This conclusion is premised on the view

that this determination falls under § 1252(a)(2)(B)(ii)’s preclusion of judicial review of “decision[s] . . . the authority for

which is specified under this subsection to be in the discretion

of the Attorney General.” 

In Matsuk v. INS, we did hold that the authority granted by

8 U.S.C. § 1231(b)(3)(B) to deny withholding of removal of

an alien “if the Attorney General decides that . . . [the] alien

has been convicted of a particularly serious crime” is discretionary within the meaning of § 1252(a)(2)(B)(ii), and therefore that the BIA’s denial of withholding on this basis is not

reviewable by this Court. See 247 F.3d at 1002; Spencer

Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th Cir.

2003). Because § 1158(b)(2)(A)(ii) also grants the Attorney

General the authority to deny asylum “if . . . the [applicant]

alien, ha[s] been convicted by final judgment of a particularly

serious crime,” the majority concludes that it is unreviewable

under § 1252(a)(2)(B)(ii) as well. 

A. § 1252(a)(2)(B)(ii) — Asylum

The majority’s conclusion with regard to Delgado’s asylum

application is directly contrary to our case law. Section

1252(a)(2)(B)(ii) specifically exempts from its jurisdictionstripping provision “the granting of relief under section 208(a)

[8 U.S.C. § 1158(a)]” — the subsection of the statute which

14314 DELGADO v. MUKASEY
authorizes aliens to apply for asylum. Morales v. Gonzales

held that “because decisions whether to grant asylum are

exempted from §1252(a)(2)(B)(ii)’s jurisdiction-stripping

mandate, we have jurisdiction to review the . . . denial of [the

petitioner’s] asylum application,” 478 F.3d at 979, even

where the reason for denial was that “the IJ determined” that

“her conviction[ ] . . . was [for] a particularly serious crime.”

Id. at 975.5 While asylum-related determinations do not fall

under this exemption when the INA specifically states otherwise, see Lanza v. Ashcroft, 389 F.3d 917, 924 (9th Cir.

2004), Morales held that the precise determination Delgado

challenges here — whether he is precluded from asylum eligibility because he committed a particularly serious crime —

does come under the exemption. 478 F.3d at 979 (“because

decisions whether to grant asylum are exempted from

§ 1252(a)(2)(B)(ii)’s jurisdiction-stripping mandate, we have

jurisdiction to review the IJ’s denial of Morales’ asylum

application.”). Morales then went on to hold differently on the

jurisdictional question “with regard to withholding of removal,” on the ground that “if the decision to deny Morales that

form of relief was based on the Attorney General’s discretion

exercised pursuant to a statute granting him discretion to

make that decision, we would lack jurisdiction to review the

denial.” 478 F.3d at 979; see also id. at 975 (“we have jurisdiction to review the IJ’s denial of Morales’ application for

asylum, pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), and to

review the IJ’s denial of Morales’ application for withholding

of removal to the extent that Morales raises questions of law,

including mixed questions of law and fact, or constitutional

claims.”). 

5Morales also questioned whether the “IJ’s determination that Morales

was statutorily ineligible for asylum” for having committed a particularly

serious crime qualifies as a discretionary decision under

§ 1252(a)(2)(B)(ii). 478 F.3d at 979 n.1. The majority should have

answered the question left open in Morales before assuming that the “particularly serious crime” designation for asylum purposes is discretionary.

DELGADO v. MUKASEY 14315
Under Morales, then, §1252(a)(2)(B)(ii) poses no bar to our

review of the IJ’s determination that Delgado’s DUI conviction constituted a “particularly serious crime” under

§ 1158(b)(2)(A)(ii), although it does bar review of the parallel

question with regard to withholding. The majority simply disregards our case law — and yet again treats differences as

similarities — in ruling otherwise. 

B. § 1231(b)(3)(B) — Withholding of Removal

I do agree with the majority that our decision in Matsuk is

controlling as to the reviewability of the IJ’s ultimate determination that his DUI convictions constituted a “particularly

serious crime” under § 1231(b)(3)(B). As noted, Matsuk concluded that this determination is discretionary and so unreviewable under § 1252(a)(2)(B)(ii), and has been understood

as so holding by this Court. See Matsuk, 247 F.3d at 1002;

Morales, 478 F.3d at 979. 

Matsuk’s conclusion on this specific point has, however,

recently been rejected by two circuits, in opinions I find persuasive. See Alaka v. Atty General of the United States, 456

F.3d 88 (3rd Cir. 2006); Nethagani v. Mukasey, 532 F.3d 150

(2d Cir. 2008). Both the Second and Third Circuits concluded

that the fact that § 1231(b)(3)(B) gives the Attorney General

authority to “ ‘decide’ or ‘determine’ ” that an offense is a

particularly serious crime is “not, standing alone, sufficient to

‘specify’ discretion.” Alaka, 456 F.3d at 96-97. As the Third

Circuit observed in Alaka, “Congress knows how to ‘specify’

discretion and has done so repeatedly in other provisions of

the INA.” Id. at 97 and n.17 (citing “thirty-two . . . provisions

in the very subchapter of the INA referenced by 8 U.S.C.

§ 1252(a)(2)(B)(ii) that make explicit the grant of ‘discretion’

to the Attorney General or the Secretary of Homeland Security”). It did not do so in § 1231(b)(3)(B). See id.; see also

Nethagani, 532 F.3d at 154-55. 

Moreover, Matsuk is in tension with our own case law.

Matsuk stated that, 

14316 DELGADO v. MUKASEY
The decision to deny withholding to Matsuk was

based upon the Attorney General’s discretion, pursuant to Section 1231(b)(3)(B)(ii), to determine

whether an aggravated felony conviction resulting in

a sentence of less than 5 years is a particularly serious crime. Thus Section 1252(a)(2)(B)(ii) divests

this court of jurisdiction to review this issue. 

247 F.3d at 1002 (footnote and quotation marks omitted).

Matsuk did not, however, explain why this is so. Instead, it

simply cited the BIA’s decision in Matter of S-S-, 22 I. & N.

Dec. 458 (BIA 1999), which states that § 1231(b)(3)(B) “affords the Attorney General discretion to exercise her judgment as to whether the conviction is for a particularly serious

crime when an alien has been sentenced to less than 5 years

for the very same offense.” 22 I. & N. Dec. at 464 (cited in

Matsuk, 247 F.3d at 1002 n. 13). 

As this Court recognized in Spencer Enterprises, however,

§ 1252(a)(2)(B)(ii) does not deprive us generally of jurisdiction to review “discretionary decisions” of the Attorney General under the INA. 345 F.3d at 689. Instead,

§ 1252(a)(2)(B)(ii) only restricts us from reviewing those

decisions “the authority for which is specified under the INA

to be discretionary.” Id. (emphasis in original). Under the test

this Court adopted in Spencer Enterprises, it would appear

that the determination of “particularly serious crime[s] under

§ 1231(b)(3)(B) is not a decision “the authority for which is

specified under the INA to be discretionary.”

§ 1252(a)(2)(B)(ii); 345 F.3d. at 689. 

Spencer Enterprises, however, was decided after Matsuk

and characterized “the decision at issue in Matsuk — whether

to classify an alien’s past offense as a ‘particularly serious

crime’ under § 1231(b)(3)(B) — as one that “did fall under

this second category, because it is “a decision that is entirely

lacking in statutory guidelines.”

6

Id. at 690. Given Matsuk,

6

Spencer Enterprises’ actual holdings, however, concerned the applicability of §1252(a)(2)(B)(ii). to a different provision of the INA,

§ 1153(b)(5). See 345 F.3d at 691. 

DELGADO v. MUKASEY 14317
Spencer Enterprises, and Morales, I have no choice but to

accept the majority’s conclusion that we lack plenary jurisdiction to review the Attorney General’s “particularly serious

crime” designations with regard to withholding. But for these

cases, I would hold, as have the Second and Third Circuits,

that a statutory provision that simply gives the Attorney General authority to “determine” something is not one that is

“specified under the INA to be discretionary.”

§ 1252(a)(2)(B)(ii). 

C. The REAL ID Act

Finally, at least some of the issues Delgado seeks to raise

on the merits regarding the IJ’s designation of his offenses as

a particularly serious crime are not ones that fall within the

jurisdiction-stripping provisions of §1252(a)(2)(B)(ii). Congress, in the REAL ID Act, has made clear that

§ 1252(a)(2)(B)(ii) does not “preclude[ ] [our] review of . . .

questions of law raised upon a petition for review.”

§ 1252(a)(2)(D). In Morales, this Court considered, in light of

the REAL ID Act, how broadly to construe Matsuk’s holding

regarding the BIA’s unreviewable discretion to determine that

a specific offense is a particularly serious crime. See Morales,

478 F.3d at 979, citing Matsuk, 247 F.3d at 1002. We stated

that “this court has jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(2)(D) . . . to consider legal questions related to the

determination of whether a crime is particularly serious.” 478

F.3d at 980 (parentheses and citation omitted). 

In his petition for review, Delgado questions (1) whether,

as a matter of law, DUI convictions can constitute a “particularly serious crime” under either § 1158(b)(2)(A)(ii) or

§ 1231(b)(3)(B), and (2) whether either of these statutes

should be applied retroactively to his convictions. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (issues of

statutory construction are per se questions of law). It may

well be that Delgado cannot prevail on either of these issues.

14318 DELGADO v. MUKASEY
Section 1252(a)(2)(B)(ii), however, does not deprive us of

jurisdiction to make this determination.

Conclusion

Because I conclude that we possess jurisdiction to review

the BIA’s determination that Delgado’s DUI convictions constituted a “particularly serious crime” under § 1158(b)(2)(B)

and, moreover, that the BIA itself lacked discretionary authority to make such a determination on a case-specific basis, I

would remand to the BIA for consideration of the merits of

his asylum application. Moreover, because I conclude that the

IJ and BIA erred as a matter of law in determining that Delgado’s convictions rendered him ineligible for withholding of

removal under § 1231(b)(3)(B), I would remand for consideration of the merits of this claim as well. 

DELGADO v. MUKASEY 14319