United States Court of Appeals 

For the First Circuit 

No. 14-2318 

LIZBETH PATRICIA VELERIO-RAMIREZ, 

Petitioner, 

v. 

LORETTA E. LYNCH,*

Attorney General of the United States, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

Mary P. Holper, Director, Boston College Legal Services LAB, 

Immigration Clinic, for petitioner. 

Jem Colleen Sponzo, with whom Francis W. Fraser, Senior 

Litigation Counsel, Office of Immigration Litigation, United 

States Department of Justice, Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General, Civil Division, and John W. Blakeley, 

Assistant Director, Office of Immigration Litigation, were on 

brief, for respondent. 

Manny D. Vargas, Trina Realmuto, and Khaled Alrabe, on brief 

for the National Immigration Project of the National Lawyers Guild 

and the Immigrant Defense Project, amici curiae in support of 

petitioner. 

 * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

Loretta E. Lynch has been substituted for former Attorney General 

Eric H. Holder, Jr., as the respondent. 
Philip L. Torrey, on brief for Harvard Immigration and Refugee 

Clinical Program, Harvard Law School, amicus curiae in support of 

petitioner. 

December 11, 2015 

 
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LYNCH, Circuit Judge. Inconsistent characterization of 

the governing law by the immigration authorities and insufficient 

analysis by the Board of Immigration Appeals ("BIA") lead us, in 

an abundance of caution, to remand this petition to the BIA. 

Lizbeth Patricia Velerio-Ramirez1 ("Valerio"), a native 

and citizen of Costa Rica, petitions for review of an order of the 

BIA denying her application for withholding of removal. Her 

petition contends that the BIA erred in upholding the immigration 

judge's ("IJ") determination that her conviction for aggravated 

identity theft was a "particularly serious crime" rendering her 

ineligible for withholding of removal under 8 U.S.C. § 1231(b). 

However, Valerio is not in fact in removal proceedings 

subject to 8 U.S.C. § 1231. The Immigration and Naturalization 

Service ("INS") placed Valerio in deportation -- not removal -- 

proceedings in 1991. By the time the Department of Homeland 

Security2 ("DHS") took action in Valerio's case in 2011, however, 

Congress had replaced deportation with removal, a process governed 

by a different set of statutes, and DHS mistakenly regarded Valerio 

as being in removal proceedings. DHS leveled removability charges 

 1 The petitioner has informed the court that her maiden 

name "Valerio-Ramirez" was misspelled in the record as "VelerioRamirez." We refer to her as "Valerio" going forward. 

2 In 2003, "the functions of the INS were reorganized and 

transferred to the Department of Homeland Security ('DHS')." 

Santana v. Holder, 566 F.3d 237, 239 n.1 (1st Cir. 2009). 
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against her, and the IJ's decision applied removal law in denying 

her application for relief. 

In its 2014 denial of Valerio's appeal of the IJ's 

decision, the BIA identified the error and stated that Valerio was 

in deportation proceedings governed by 8 U.S.C. § 1253. It also 

said that the law governing the two proceedings was the same. But 

the statutory language is not the same, a fact not acknowledged by 

the agency. The version of former 8 U.S.C. § 1253(h) governing 

Valerio's claim for withholding of deportation contains an 

additional provision, § 1253(h)(3), which was added by 

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") 

§ 413(f) and was nullified only a few months later in 1996 when 

Congress replaced deportation with removal. The language of 

§ 1253(h)(3) is not present in the withholding of removal statute, 

8 U.S.C. § 1231(b)(3), or earlier versions of 8 U.S.C § 1253(h). 

Here, the BIA's review of Valerio's application not only 

omitted any reference to § 1253(h)(3) but also failed to 

acknowledge its existence or discuss how it applies. Given these 

circumstances, and the additional fact that the BIA has not spoken 

on how § 1253(h)(3) applies to non-aggravated felons such as 

Valerio, we do not reach the merits of Valerio's petition out of 

deference to the agency. It is not our place to interpret in the 

first instance a statute which the BIA has been charged with 
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interpreting.3 We reject the government's position that the 

petitioner has precluded remand because she failed to exhaust the 

issue of applicable law; the BIA itself raised the issue, and that 

suffices. We also reject the government's argument that remand is 

inappropriate because this court in Choeum v. INS, 129 F.3d 29 

(1st Cir. 1997) already decided what there is to decide. It is 

for the BIA to consider Choeum on remand. Accordingly, we now 

remand Valerio's case to the BIA to interpret and apply the correct 

law: former 8 U.S.C. § 1253(h) as amended by AEDPA § 413(f). 

I. 

At age 22, Valerio left Costa Rica and entered the United 

States with her then-boyfriend Carlos Gomez.4 Soon after entering 

the United States in March 1991, Valerio was apprehended and placed 

in deportation proceedings for entering without inspection. Those 

 3 That the BIA merely corrects an error of law committed 

by an IJ does not itself lead to remand. We remand here in light 

of the significant additional fact that the BIA has not previously 

addressed how § 1253(h)(3) applies to non-aggravated felons. Under 

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

467 U.S. 837, 842–43 (1984), "the BIA is entitled to deference in 

interpreting ambiguous provisions of the [Immigration and 

Nationality Act]." Negusie v. Holder, 555 U.S. 511, 516 (2009); 

see INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). 

4 Valerio's declaration in support of her petition for 

withholding of removal describes childhood trauma she experienced 

in Costa Rica, including sexual abuse by her father and a local 

priest. Valerio also attests to extensive physical, mental, and 

emotional abuse by her then-boyfriend Gomez, including being 

thrown on the ground and head-butted while pregnant. She pleads 

that Gomez will likely inflict serious harm to her if she returns 

to her native country. 
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proceedings were administratively closed after Valerio failed to 

appear before an IJ in April 1991. 

After settling in the United States, between 1995 and 

2007, Valerio obtained and used the social security number and 

identification documents of a real person named Rosa Hernández, in 

order to obtain employment, a driver's license, and credit cards. 

In 2007, the real Rosa Hernández contacted the police about 

possible identity theft, and Valerio was subsequently arrested and 

indicted for three counts of mail fraud, in violation of 18 U.S.C. 

§ 1341, and one count of aggravated identity theft, in violation 

of 18 U.S.C. § 1028A. Valerio was found guilty after a jury trial 

in federal court, and this court affirmed the conviction. See 

United States v. Valerio, 676 F.3d 237, 240 (1st Cir. 2012). The 

sentencing judge imposed an order of restitution in the amount of 

$176,669.77 and imprisonment of two years and one day. Valerio 

served her sentence and was afterward transferred into DHS custody. 

In 2011, DHS re-calendared Valerio's deportation 

proceeding under the original 1991 charge of deportability 

pursuant to former § 241(a)(1)(B) of the Immigration and 

Nationality Act ("INA") (entering without inspection). In her 

March 29, 2011, responsive pleading, Valerio conceded 

deportability as charged. On May 5, 2011, Valerio, apparently 

believing that she was in removal proceedings, filed an application 
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for asylum and withholding of removal.5 The record includes 

numerous letters from the government to Valerio stating that she 

is in removal proceedings, and in July 2012, DHS leveled three 

charges of removability against her.6 Although the IJ stated at a 

March 22, 2011, hearing that Valerio was in deportation proceedings 

and was applying for relief under the "old rule," the IJ's January 

7, 2013, written opinion treated Valerio as being in removal 

proceedings and applied removal law. 

In its January 7, 2013, order and opinion, the IJ 

pretermitted Valerio's application for withholding of removal on 

the basis that her crime was "particularly serious." The IJ also 

denied her motion to amend her application and ordered her removed 

to Costa Rica. After finding Valerio removable, the IJ applied 

the BIA's multi-factor test set forth in Matter of Frentescu, 18 

 5 During her merits hearing on May 1, 2012, Valerio sought 

only withholding of removal. Through a subsequent letter, she 

moved to amend her application to include a request for relief 

under the Convention Against Torture (CAT). 

6 Although the government at one point leveled a charge of 

removability for conviction of an aggravated felony under INA 

§ 237(a)(2)(A)(iii), see 8 U.S.C. § 1227(a)(2)(A)(iii), it later 

withdrew the charge and does not now contend that Valerio is an 

aggravated felon. The government's brief states, Valerio "was not 

found to be an aggravated felon," and the government has not 

elsewhere objected to that characterization. Furthermore, after 

the government withdrew the aggravated felony conviction charge, 

neither the IJ nor the BIA's written opinion found Valerio to be 

an aggravated felon. We accept the characterization that she is 

a non-aggravated felon.
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I. & N. Dec. 244 (BIA 1982), to determine that Valerio's conviction 

for aggravated identity theft was a "particularly serious crime," 

barring her from obtaining withholding of removal under 8 U.S.C. 

§ 1231(b)(3). Finding Valerio barred from withholding by that 

conviction, the IJ did not address the mail fraud conviction and 

did not reach the merits of Valerio's application. 

On appeal, the BIA upheld the IJ's determination that 

Valerio had been convicted of a "particularly serious crime" 

barring withholding but vacated the IJ's order as to the three 

removability charges. The beginning of the BIA's opinion, in a 

footnote, states that the IJ mischaracterized the applicable law 

in referring to withholding of removal, as Valerio was "in 

deportation proceedings and [was] applying for withholding of 

deportation pursuant to section 243 of the Act, 8 U.S.C. § 1253." 

The BIA stated, nonetheless, that "[t]he particularly serious 

crime analysis is the same under both provisions." Turning to 

Valerio's withholding application, the BIA applied the Frentescu 

test, and found, as had the IJ, that Valerio's conviction for 

aggravated identity theft was a "particularly serious crime," 

noting that her crime involved a real victim and that identity 

theft "is a serious problem in our society." The BIA ordered 

Valerio deported to Costa Rica. This petition followed. 
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II. 

Valerio's petition for review challenges the BIA's 

application of the "particularly serious crime" exception to her 

conviction for aggravated identity theft. However, we do not reach 

the merits of that petition. Her case is governed by the 

withholding of deportation statute, former 8 U.S.C. § 1253(h), as 

amended by AEDPA § 413(f). In rejecting her position, the BIA 

omitted analysis of a portion of the governing statute. While it 

is well-settled that we defer to the BIA's interpretation of the 

immigration laws where reasonable, the BIA's decision failed to 

acknowledge whether or how, if at all, AEDPA § 413(f) changes the 

"particularly serious crime" determination for a non-aggravated 

felon like Valerio. We think it prudent to remand to the agency 

for consideration of the issue. We explain below. 

A. The "Particularly Serious Crime" Exception 

Congress has long prohibited the Attorney General from 

deporting a person to a country if she "determines that [an] 

alien's life or freedom would be threatened in such country on 

account of race, religion, nationality, membership in a particular 

social group, or political opinion," 8 U.S.C. § 1253(h)(1) (1980); 

id. (1990); id. (1996). See Alphonsus v. Holder, 705 F.3d 1031, 

1037-41 (9th Cir. 2013) (discussing the statute's history). An 

exception to that rule provides that withholding of deportation 

"shall not apply to any alien if the Attorney General determines 
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that . . . (B) the alien, having been convicted by a final judgment 

of a particularly serious crime, constitutes a danger to the 

community of the United States," 8 U.S.C. § 1253(h)(2) (1980). 

In 1982, the BIA in Matter of Frentescu set forth a 

multi-factor test to determine whether a crime is "particularly 

serious." See 18 I. & N. Dec. at 247 ("In judging the seriousness 

of a crime, we look 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.").7

In 1990, Congress amended § 1253(h)(2) by categorically 

designating all aggravated felonies as "particularly serious" 

crimes. See Immigration Act of 1990, Pub. L. No. 101–649, § 515, 

104 Stat. 4978, 5053 (formerly codified at 8 U.S.C. 1253(h)(2)). 

Then in April 1996, Congress passed AEDPA, which expanded the list 

 7 The BIA has also interpreted the exception to require 

only one determination, that is, an alien found to be convicted of 

a "particularly serious crime" is necessarily found to be a "danger 

to the community." See Matter of Carballe, 19 I. & N. Dec. 357, 

359–60 (BIA 1986). All circuits that have addressed the issue, 

including our own, have upheld this interpretation. See 

Kankamalage v. INS, 335 F.3d 858, 861 n.2 (9th Cir. 2003); Hamama 

v. INS, 78 F.3d 233, 240 (6th Cir. 1996); Ahmetovic v. INS, 62 

F.3d 48, 53 (2d Cir. 1995); Al–Salehi v. INS, 47 F.3d 390, 391 

(10th Cir. 1995); Kofa v. INS, 60 F.3d 1084, 1088 (4th Cir. 1995) 

(en banc); Garcia v. INS, 7 F.3d 1320, 1322 (7th Cir. 1993); 

Mosquera-Perez v. INS, 3 F.3d 553, 559 (1st Cir. 1993); Martins v. 

INS, 972 F.2d 657, 661 (5th Cir. 1992) (per curiam); Crespo-Gomez 

v. Richard, 780 F.2d 932, 935 (11th Cir. 1986). 
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of aggravated felonies. See AEDPA, Pub. L. No. 104–132, § 440(e), 

110 Stat. 1214, 1277–78 (1996) (codified at 8 U.S.C. 

§ 1101(a)(43)). At the same time, § 413(f) of that legislation 

created an override provision to the "particularly serious crime" 

bar, which was codified at 8 U.S.C. § 1253(h)(3). In relevant 

part, 8 U.S.C. § 1253(h)(3) read: 

(3) Notwithstanding any other provision of 

law, paragraph (1) [requiring withholding of 

deportation] shall apply to any alien if the 

Attorney General determines, in the discretion 

of the Attorney General, that -- 

. . . 

(B) the application of paragraph (1) to such 

alien is necessary to ensure compliance with 

the 1967 United Nations Protocol Relating to 

the Status of Refugees. 

AEDPA § 413(f), 110 Stat. at 1269 (formerly codified at 8 U.S.C. 

§ 1253(h)(3)). 

The BIA continued to apply the "particularly serious 

crime" bar without a separate "danger to the community" 

determination. See In Re Q-T-M-T-, 21 I. & N. Dec. 639, 656 (BIA 

1996). However, in light of AEDPA § 413(f), the BIA began treating 

only aliens convicted of aggravated felonies with sentences of 

five years or more as per se convicted of "particularly serious" 

crimes and began subjecting aliens convicted of aggravated 

felonies with shorter sentences to a rebuttable presumption of 

conviction of a "particularly serious crime," adjudged by whether 
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"any unusual aspect of the alien's particular aggravated felony 

conviction . . . convincingly evidences that his or her crime 

cannot rationally be deemed 'particularly serious' in light of our 

treaty obligations under the Protocol." Id. at 654 (citing the 

Frentescu test in explaining how to apply 8 U.S.C. § 1253(h)(3) to 

aggravated felony convictions). 

AEDPA § 413(f) was short-lived. In September 1996, 

through the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 ("IIRIRA"), Congress replaced 

deportation with removal proceedings, see Pub. L. No. 104–208, 

§§ 301–309, 110 Stat. 3009-546, 3009-575 to 3009-627, and in the 

new withholding of removal provision, omitted the language 

previously added by AEDPA § 413(f), see § 305(a)(3), 110 Stat. at 

3009-602 (codified at 8 U.S.C. § 1231(b)). IIRIRA also eliminated 

the categorical designation of all aggravated felonies as 

"particularly serious" crimes. Id. Thereafter, the BIA returned 

to applying the Frentescu test to determine whether a conviction 

for an aggravated felony with a sentence shorter than five years 

or for a non-aggravated felony is "particularly serious." See 

Alphonsus, 705 F.3d at 1041. 

Because INS placed Valerio in deportation proceedings in 

1991, and final action was not taken in her case until well after 

1996, Valerio's deportation proceedings are governed by former 

8 U.S.C. § 1253(h), as amended by AEDPA § 413(f). See 
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AEDPA § 413(g), 110 Stat. at 1269–70 (1996) (stating that § 413(f) 

"shall apply to applications filed before, on, or after such date 

if final action has not been taken on them before such date").8

B. Application of Former 8 U.S.C. § 1253(h), as Amended by AEDPA 

§ 413(f) 

The government argues we must dismiss the bulk of the 

petition by suggesting that Valerio did not raise before the BIA 

the issue of whether AEDPA § 413(f) alters the "particularly 

serious crime" determination in her case, and so arguments about 

applicable law, which are raised by Valerio and amici curiae,9 are 

unexhausted. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 

2004). However, we do not have to address whether Valerio herself 

raised an appropriate challenge to the BIA's application of law, 

as the BIA itself raised the issue sua sponte. See MazariegosPaiz v. Holder, 734 F.3d 57, 60 (1st Cir. 2013) ("[T]he 

administrative exhaustion requirement is satisfied as to 

particular issues when the agency, either on its own initiative or 

at the behest of some other party to the proceedings, has addressed 

 8 The provisions at issue in IIRIRA took effect on April 

1, 1997, and do not apply to "deportation proceedings commenced 

before April 1, 1997, and in which a final order of deportation 

issued after October 30, 1996," Prado v. Reno, 198 F.3d 286, 288 

n.2 (1st Cir. 1999). 

9 Two briefs in support of the petitioner have been 

submitted in this case, one by the National Immigration Project of 

the National Lawyers Guild and the Immigrant Defense Project, and 

another by the Harvard Immigration and Refugee Clinical Program of 

Harvard Law School. We acknowledge their assistance. 
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those claims on the merits, regardless of whether the petitioner 

himself raised them."); see also Meng Hua Wan v. Holder, 776 F.3d 

52, 56 (1st Cir. 2015). The BIA addressed applicable law directly 

in a footnote at the beginning of its opinion, remarking on the 

IJ's erroneous use of removal law, stating that Valerio's 

application is governed by deportation law, and making the 

additional unbriefed determination that "[t]he particularly 

serious crime analysis is the same under both provisions." We see 

no exhaustion objection that would preclude review. 

Here, Valerio's opening brief clearly raised the issue 

of applicable law and included discussion of AEDPA § 413(f), the 

fact that her case is governed by former 8 U.S.C. § 1253(h), and 

the import of international law to the application of the statute. 

We see no reason to conclude that she abandoned these arguments, 

on which amici have advanced variations.10

Still, when the BIA has not spoken on an issue that a 

statute has placed in its hands, remand is appropriate to give the 

 10 The government also contends that we cannot consider the 

arguments concerning the proper statutory interpretation of AEDPA 

§ 413(f) because they were advanced in the first instance by two 

amicus briefs involved in the case. While it is true that "amici 

may not present legal theories not argued by the parties," they 

may present "variations on the arguments presented by" a party. 

Albathani v. INS, 318 F.3d 365, 375 n.6 (1st Cir. 2003). Amici 

are permitted to "assist the court in achieving a just resolution 

of issues raised by the parties." Lane v. First Nat'l Bank of 

Boston, 871 F.2d 166, 175 (1st Cir. 1989). They have done so here. 
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BIA an opportunity to address the issue in the first instance. 

See Negusie v. Holder, 555 U.S. 511, 516 (2009). 

The government also argues that this court has already 

upheld the BIA's interpretation of former 8 U.S.C. § 1253(h), as 

amended by AEDPA § 413(f), so there is no reason to remand. See 

Choeum, 129 F.3d at 35. It is true that the BIA should on remand 

consider the effect of Choeum, but that does not obviate the need 

for remand. Choeum concerned an aggravated felon. This case does 

not. We leave it to the BIA to determine whether that difference 

is relevant and to articulate the "particularly serious crime" 

determination for a non-aggravated felon like Valerio. A single, 

unsupported assertion in a footnote, lacking rationale or 

precedent, stating that "removal and deportation proceedings are 

treated the same" is simply not enough, especially in light of the 

harsh consequences of deportation. See INS v. Cardoza-Fonseca, 

480 U.S. 421, 449 (1987). 

Accordingly, we remand to the BIA to interpret in the 

first instance and apply former 8 U.S.C. § 1253(h), as amended by 

AEDPA § 413(f), to a non-aggravated felon. 

III. 

For the reasons stated above, we grant the petition to 

the extent of remanding this matter to the BIA for further 

proceedings not inconsistent with this opinion.