F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E G U

A D A L U P E T O R

R E S

V A L D I V I A S , AKA Guadalupe Torres, P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 11-70532

Ag ency No. A079-643-573

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted Aug ust 11, 2014—San F rancisco, California

F iled September 5, 2014

B efore: B arry

G. Silverman and Richard R. Clifton, Circuit J udg es, and Derrick Kahala W atson, District J udg e. *

Opinion by

J udg e Clifton

* T h e Ho n o rab le D errick Kah ala W atso n , U.S. District Ju dg e f o r th e District o f

Haw aii, sittin g b y

d esig n atio n

.T O R R E S -V A LD I V I A S V

. H O L D E R 2

SUMMARY * *

Im m igration

The panel dism i s sed in p art and denied in part J ose Guadalupe Torres-Valdivias’s petition for re v i e w of the B oard of I mmig ration Appeals’ d e c ision deny ing his application for adjustment of status.

The panel upheld the B oa rd of I mmig ration Appeals’ decision not to apply the categ orical approach when making a discretionary

determination such as the one here reg arding whether petitioner’s sex ual b attery conviction trig g ered the standard under Matter of Jean
, 23 I

. & N. Dec. 37 3 ( A t t’y Gen. 2002) (establishing a h eig htened standard th at a liens convicted of v iolent or dang erous crimes mu s t satisfy for discretionary relief). The panel held that the determination o f whether a c rime is violent or dang erous under Matter of Jean is discretionary and therefore unreviewable u n d e r 8 U .S.C. § 1252(a)(2)(B ). The panel upheld the B I A’s ex tension of the Matter of J

ean standard to applications for adjustment under 8 U.S.C. § 1 255(i). T he panel als o h e l d that Matter of Jean applies to c ases p reviously g overned by Matter of Arai
, 13 I

. & N. Dec. 4 94 (B I A 1 970) (the B I A’s preced e n t d ecision addressing the proper standa r d in § 1255 adjustment cases), provided that the a lien was co n v i c ted of a v iolent o r dang erous crime.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T O R R E S -V A LD I V I A S V

. H O L D E R 3

COUNSEL

L amar Peckham, Santa Rosa, California, for Petitioner.

Stuart F

. Delery
, Acting A ssistant Attorney General, C i v i l Division, Mary J ane Candaux
, Assistant Director, K iley L

. Kane, Senior L itig a tion Counsel, an d G a r y J

. Newkirk (arg ued), Trial Attorney
, Office of I mmig ration L itig ation, Civil D i vision, United States Department of J ustice, W a shing ton, D.C., for Respondent.

OP INION

CL I F TON, Circuit J udg e :

Petitioner J ose Guadalupe Torres-Valdivias petitions for review o f a B oard of I mmig r ation Appeals’ (“B I A”) decision upholding a final order of removal a g ainst him. I n deciding this case, we consider the scope of the Attor n e y G eneral’s decision in Matter of Jean
, 2 3 I

. & N. Dec. 3 7 3 (Att’y Gen. 2002), which established a heig htened standard that a liens convicted of v iolent or dang erous cri m es m u st satisfy to be
g ranted discretionary

relief from removal.

Torres-Valdivias wa s placed in removal proceeding s, where he appli e d f

or and was denied a djustment of status under 8 U.S.C. § 1255(i). The B I A held that To r r e sValdivias’s sex u a l b a ttery conviction was a violent o r dang erous crime and, on that basis, applied the Matter of Jean standard to g uide the ex ercise o f its d iscretion. I n making the violent or dang erous crime determination, the B I A c o n s idered the facts underlying Torres-Valdivias’s sex ual battery offense

as testified to by Torres-Valdivias at his r emoval hearing a ndT O R R E S -V A LD I V I A S V

. H O L D E R 4

as stated in police r e p o r t s from the time of the offense. Apply ing the Matter o

f Jean standard, the B I A denied TorresValdivi a s ’ s adjustment of status application, as a matter o f discretion.

W e uphold the B I A’s decision not to apply the categ orical approach in the contex t o f its discretionary decisions, such a s the one at issue here. We also conclude th a t , w here the

co rr e c t leg al standard is applied, the u ltimate determination of whether a crime was violent or d ang erous under M atter of Jean is discretionary and therefore u nreviewable under 8 U

. S.C. § 1252(a)(2)(B )

. F inally
, we uphold the B I A’s

ex tension of the Matter of Jean s tandard to adjustment o f
status applications under 8 U.S.C. § 1255. A c c o rd i ng ly
, we dismiss i n part and d eny in part Torres-Valdivias’s petition for review.

I. Background

Petitioner J ose Guadalupe Torres-Valdivias, a native a nd citiz en of Mex ico, h as resided in the Un i t e d States since

co m i n g in illeg ally in 1989. He married a U

. S. citiz en, throug h w hom he was g ranted conditional permanent resident
status in 2003. That status was revoked in 2006, however, a s

a result of a 2001 conviction for sex u al battery in violation o f Cali f o r n ia Penal Code § 243.4(a). Upon revocation of his status, T orres-Valdivias was charg ed w ith being an alien illeg ally present in the U nited States and therefore r emovable under 8 U.S.C. § 1182(a)(6)(A)(i).

I n removal proceeding s in front of an I mmig ration J udg e (“I J ”), Torres-Valdivias applied for adjustment of s tatus under 8 U.S.C. § 1255(i). I n adjudicating this application, the I J considered the facts underlying Torres-Valdivias’s sex ualT O R R E S -V A LD I V I A S V

. H O L D E R 5

battery conviction, including the facts a s stated in his testimony at the removal hearing a n d as desc r ibed in the police r e p o rts from the time of the offense. T h e facts f ound by the I J are not in dispute:

[ Torres-Valdivias] first said that when h e was 14 o r 1 5, and the victim, h is stepsister, was 10

or 1 1
, h e touched her on her breasts a nd

v a gi na over her c lothing once. He repeated this activity one more time, about a y e ar later. He insisted h e did nothing e lse. L ater, a fter being confronted with the police reports in the
case, he admitted that he touched her v a gina while the victim was not wearing clothes. He subsequently admitted to forcin g his fing er into her vag ina, and also g etting on top of her and s imulating sex ual intercourse. [ TorresV a ldivias] denied putting his penis into h i s stepsister’s vag ina and denied eng a g ing in oral sex with her.

The I J concluded that Torres-Valdivias’s crime o f s ex ual battery “was quite clearly v iolent or dang erous” and a pplied the heig htened standard for g ranting d iscretionary relief from

r e moval to violent o r dang erous criminals e stablished in Matter of Jean

. Under this heig htened stan d a rd, the I J concluded, as a matter of discretion, that Torres-Valdivias ’s adjustment of status applicat ion should be denied a nd therefore ordered him removed.

Torres-Valdivias appealed to the B I A. On appeal, a threemember panel of the B I A ag reed with the I J ’s application of the heig htened Matter of Jean standard to an adjustment o f
status app l i c ation but remanded for the I J to further analy z eT O R R E S -V A LD I V I A S V

. H O L D E R 6

whether Torres-Valdivias’s offense was a v io l e n t o r dang erous crime warranting application of that standard.

On r e m a n d, the I J incorporated his prior decision b y

r e f e rence and provided more detailed facts and further le ga l analy sis. 1 T he I J again concluded that Torres-Valdivias’s crime of sex ual battery constituted a violent or da n gerous crime a nd denied, as a matter of discretion, his application for

1 T h e IJ ’ s f

u ll d iscu ssio n

o f th e f acts o n rem an d w as as f

o llo w s:

A r e v iew o f th e d o cu

m en ts in th e f

ile rev eals th e f o llo w in g ab o u t th e circu m stan ces o f th e crim e. T h e

v ictim in t h is case is [T o rres- V ald i v ias’ s] step s ister. Sh e to ld th e p o lice t

h at [T o rres- Vald iv ias] h ad en g ag ed in n o n

- co n sen su al sex u al in terco u rse w ith h e r at least f iv e t im es, b eg in n in g w

h en sh e w as ab o u t f

iv e y ears of
ag e an d en din g w

h en sh e w as f

ou rteen

. A t th e tim e of th e l a s t assau lt [T orres- V ald i v ias] w as ab o u t n in eteen y ears o ld

. T h e v ictim t o ld th e p o lice th at [ T o r resVald iv ias] “ w o u ld t ak e h er clo th e s o ff, as w ell as h is

o w n , an d th en sex u ally assau lt h er. Sh e said th e su sp ect

w o u l d p lace h is erect p en is i nt o h er v ag in a, k iss h er

m o u th

- to

- m o u

th an d p lace h is m o u th o n to h er v ag in a.”

[T o rres- Vald iv ias] to ld th e p o lice th a t h e h ad p u t h is f i n g er in t h e v ictim ’ s v ag in a w

h en sh e w as n in e an d
ag ain w h en sh e w as 1 2

. He sai d h e fe lt an d k issed h er b reasts at least th ree o r f

o u r tim es w

h en th e v ictim w as 1 3 o r 1 4 y ears o ld

. He said h e g o t o n to p o f th e v ictim

an d sim u lated sex u al i n t erco u rse sev eral tim es w h en sh e w as ab o u t 9 y ears o ld . He d en i ed h av in g co m p l ete

sex u al in terco u rse w i th th e v ictim an d d en ied f o rcin g

an y sex u al acts o n th e v ictim

. [T orres- Vald iv ias’ s] testim o n y at h i s rem o v al h earin g w as in m an y resp ects t h e s am e as h is p o l ice statem en t

. Ho w ev er, h e d i d ack n o w led g e at th e h earin g th at h e h ad “ f o rce[d ] h is f in g er in to h er v ag in a” “ [a] little b it.”T O R R E S -V A LD I V I A S V

. H O L D E R 7

adjustment of status. The I J ag ain o rdered Torres-Valdivias removed and c e r t i fied the case back to the B I A. The B I A adopted and a ffirmed the I J ’s decision unde r M a t ter of Burbano , 20 I . & N. Dec. 872 (B I A 1994).

T o rres-Valdivias timely petitioned this court for review of the final order of removal entered ag a inst him.

II. Jurisdiction and Standard of Review

The I mmig rat i o n a nd Nationality Act (“I NA”) bars this
court f rom ex ercising jurisdiction over v arious discretionary decisions of the immi gration authorities, including “any judg ment reg arding the g ranting o f relief under” 8 U .S.C. § 1255. 8 U.S.C. § 1 2 5 2 (a)(2)(B )(i). The B I A’s ultimate discretionary d e c i s i o n to deny Torres-Valdivias adjustment o f
status u nder 8 U.S.C. § 1255(i) is theref o r e unreviewable. Pursuant to 8 U.S.C. § 1 252(a)(2)(D), h o w e v er, this court retains jurisdiction o ver constitutional questi o n s a nd questions o f law. W e review questions of law de novo. Annachamy v. Holder , 733 F .3d 254, 258 (9th Cir. 2013).

III. Discussion

Torres-Valdivias’s petition for review raises various issues framed as questions of law, n amely : (1) whether the B I A erred in not app l y ing the categ orical approach in determining whether Torres-Valdivias’s crime was violent o r dang erous for purposes of apply ing Matter o f Jean ; ( 2 ) whether the B I A committed an error of law w h e n i t determined that Torres-Valdivias’s crime was vi o l ent o r dang erous; a

nd (3) whether Matter of

Jean is a pplicable in the
contex t of an adjustment of status a p p lication under 8 U .S.C.T O R R E S -V A LD I V I A S V

. H O L D E R 8

§ 1255(i). 2 With respect to the f irst and third issues, we ag r ee with Torres-Valdivias that they present questions o f law but disag ree with h im on the merits

. W i t h respect to the second issue, however, we conclude that it presents a challeng e to a d i s cretionary decision of the B I A a n d that we therefore l a c k jurisdiction to review it.

A. Applicability of the Categorical Approach

The heig htened standard of Matter of Jean applies by its

own terms only to aliens convicted of violent or dang erous crim e s

. 2 3 I

. & N. Dec. a t 383; see a lso Matter of K–A–
, 23 I

. & N. Dec. 661, 666 (B I A 2004)

. T orres-Valdivias arg ues that the B I A erred b y failing to apply the categ orical approach in determining whether his c o n v iction for sex ual battery trig g ered the heig

htened Matter of Jean standard.

W e disag ree. Adjustment of status under 8 U.S.C. § 1255 is a d iscretionary form of relief. See, e.g. , 8 U

. S.C. § 1255(i)(2) (“[ T] he Attorney General m a y adjust the status of the al i e n to that of an alien lawfully admitted for permanent residence

. . . .” (emphasis added)). I n the c ontex t of the B I A’s discretionary d ecisions, w e have noted that “it is proper [ for the B I A] to look to probative evidence outside the record of conviction in inquiring as to the circumstances surrounding t h e commission of [ a] crime in order to determine whether a favorab l e e x ercise o f discretion is

2 T o rres- V ald iv ias also arg u es th at h e w as d en i ed d u e p ro cess w h en th e B IA assig n ed h is ap peal f o r d ecisio n b y a sin g le m em b er. Co n trary to th is
arg u m en t, h ow ev er, h i s ap peal w as in fa ct assig n ed to a th ree- m em ber
p an el o f th e B IA
, co m

p osed o f B IA m em

b ers Ed w ard R. Gran t, Mo lly Ken d all- Clark
, an d Neil P

. Miller. T h is arg u m en t is th eref

o re w ith o u t

m erit.T O R R E S -V A LD I V I A S V

. H O L D E R 9

warranted.” Tokatly v. Ashcroft
, 371 F .3d 613, 621 (9th Cir. 2004) (second alteration in orig inal) (quoting Matter of Mendez-Moralez
, 21 I

. & N. Dec. 296, 303 n.1 (B I A 1996)). I ndeed, in Matter of J

ean itself, the Attorney General looked
at the facts underlying J ean’s c onviction, including t h ose found in a medical ex aminer’s report—and therefore outside the r ecords of conviction—to conclude that she was a violent or dang erous individual who should not be g ranted the form of d iscretionary relief she had applied for. See 23 I

. & N. Dec. at 375, 383.

I t is not surprising that both our pre c e d en t and the Attorney General’s decision in Matter o f Jean counsel ag ainst the applicat i o n of the categ orical approach in this contex t. The categ orical approach, as laid o u t in Taylor v. United States
, 495 U. S

. 5 7 5 (1990), requires a court to look only at the statutory definition of a p rior o ffense of conviction a nd ig nore any facts not found in judicially noticeable records o f conviction. This approach a pplies where “Cong r ess intended that [ a certain statutory ] provision be t r i ggered by crimes having certain specified elements

. . . . ” Id

. a t 588. I n the immig ration c ontex t, this approach therefore g enerally applies in determining whether an a l i en is removable in the first instance or whether he is statutorily barred from v arious forms o f relief. See, e.g. , Tokatly
, 371 F .3d at 621 (noting that the categ orical approach applies “ in order to determine whether an alien’s p rior c onviction constitutes a basis for removal under the I

NA”); Castrijon-Garcia v. H older
, 704 F

. 3d 1 205, 1212 (9th Cir. 2 013) ( apply ing the categ orical approach to determine whether an o ffense constituted a crime involving moral turpitude, which would render t h e alien inelig ible for cancell a t i on of r emoval). Contrasted with questions o f statutory removability and elig ibility for relief, for which Cong ress intended specific crimes to trig g erT O R R E S -V A LD I V I A S V

. H O L D E R 10

removal or statutory bars to relief, th e question here is very different. I n lig ht o f the discretionary lang uag e used in 8 U.S.C. § 1255( i )
, Cong ress plainly intended f or the Attorney G eneral (and, by e x tension, his deleg ate the B I A) to

ex e r cise his discretion in adjudicating applications f o r adjustment of status under any standards that the At torney General (or the B I A itself) deems appropriate to establish.

I n sum, the B I A’s decision not to apply the cat eg orical approach to g uide th e e x ercise of its discretion is consistent with our case law as well as with the Attorney General’s a nd the B I A’s precedential d ecisions. According ly
, we uphold the B I A’s refusal to apply the categ orical approach in this case.

B. Violent or Dangerous Crime Determination

Torres-Valdivias nex t contends that the B I A committed

an error o f law in f

inding that his sex ual battery offense constituted a violent or dang e rous crime t rig g ering the heig htened standard o f Matter o f Jean

. Althoug h framed in an attempt to p resent a question of law
, w e c o nclude that this
arg ument challeng es the B I A’s discretionary decision to view his crime as a violent or dang erous o n e. W e therefore lack jurisdiction to decide the merits of this arg ument.

At its core, this a

rgu ment r elies on disting uishing
, on its facts, Torres-Valdivias’s crime f rom the crime involved in Matter of Jean

. W hereas Torre s

- Valdivias accepts that manslaug hter, the c rime involved in Matter of Jean
, constitutes a violent or d ang erous c rime, he denies that sex ual battery rises to the same level. A f act-intensive determination in w hich the equities must be weig hed i n r e a ching a conclusion is a prototy

pical ex ample of a discretionary decision. Torres-Valdivi a s’s claim therefore “fall[ s] w ellT O R R E S -V A LD I V I A S V

. H O L D E R 11

w i t h in the B I A’s discretionary authority and [ is] not subj e ct to our review.” Mejia v

. Gonzales
, 499 F .3d 991, 999 (9th Cir. 2007) (citing 8 U.S.C. § 1252 (a)(2)(B )(i)).

C. Scope of Matter of J ean

The most substantial question raised by Torres-Valdivias is whether Matter of Jea n ap p l i e s in the contex t of an adjustment of status application under 8 U.S.C. § 1255(i). Torres-Valdivias arg ues that it is not Matter of J e a n that applies in t h i s c ontex t, but rather Matter of Arai
, 1 3 I

. & N

. Dec. 494 (B I A 1970). W e disag ree, and we uphold the B I A ’s d ecision to apply Matter of Jean to cases that wo u l d previously h ave been g overned by M a t t e r of Arai
, provided the alien has been convicted o f a violent or dang erous crime.

1. Matter of Jean and Matter of Arai

Matter of Jean involved a r e f ug ee’s applications for adjustment of status under 8 U.S.C. § 1 159(a) and for asy lum under 8 U.S.C. § 1158. 23 I

. & N. Dec. at 375–76. However, J ean was statutorily inelig ible for adjustment of status due to

a manslaug hter conviction, which q ual i f i e d as a crime involving moral turpitude rendering J ean inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I ). I d. As a pre d i c ate to her adju s tment of status application, she was therefore also apply ing for a waiver of inadmissibility under 8 U .S.C. § 1 1 5 9(c)—the so-called § 209(c) waiver, named for the corresponding I

NA section. Id. at 376. The B I A, b alancing the equities in t h e e x ercise of its discretion, g ranted her the waiver and adjustment of status. Id. at 378. The A t t o r n ey General then stepped in to r e v e rse the B I A. Id. at 389. I n doing so, the Attorney General articulated the appli c ableT O R R E S -V A LD I V I A S V

. H O L D E R 12

standard for g uiding the B I A’s ex ercise o f discretion a s follows:

I t wo u l d n ot be a p rudent ex ercise of the discretion afforded to me by [ § 1159(c)] to g rant favora

b l e adjustments o f status to violent or dang e rous in dividuals ex cept in

ex traordinar

y circumstances, such as those involving national security or foreig n policy considerations, or cases in whic h an a lien

c l e arly demonstrates that the denial of statu s adjustment would result in ex ceptional a nd

ex tremely unusual hardship.

Id. at 383. I n a ddition, the A ttorney General applied the same standard in deny ing
, as a m a tter of discretion, J ean’s application f

or asy lum under § 1158. Id

. at 385 (“F or the

same reasons articulated in the earli e r d i s cussion of the respondent’s a

pplication for adjustment of status, I am hig hly disinclined to ex ercise my d iscretion—ex cept, a ga in, in

ex traordinary circumstances, such a s those involving n ational security or foreig n policy considerations, or cases in which an alien clearly demonstrates that the denial of relief would result in ex ce ptional a

nd ex tremely unusual hardship—on behalf of dang erous or violent felons seeking asy lum.”).

This standard may d iffer f rom the Matter of

Arai standard that Torres-Valdivias a

r g ues the B I A should hav e a p plied. Matter of Arai
, unlike Matter o

f Jean
, involved the same kind of application involved in this case—namely , an application for adjustment of status u nder 8 U.S.C. § 1255. I n that
contex t, the B I A articulated the following standard:T O R R E S -V A LD I V I A S V

. H O L D E R 13

W h ere adverse factors are pre s e n t in a g iven application, it may b e necessary for the applicant to offset these b y a showing o f unusual or ev en o u t s t a n d i n g equities. G en erally
, favorable factors such as famil y ties, h ardship, leng th o f residenc e i n the United States, etc. , wi l l be considered a s countervailing factors mer i ting favorable

ex e rcis e of administrative discretion. I n the absence of adve rse factors, adjustment will

o r d i n a rily be g ranted, still as a matter o f discretion.

Matter of A r a i
, 13 I

. & N. Dec. a t 496. W e proceed b y assuming arguendo that the standards articulated in these two

ca s e s a r e sufficiently different so as to potentially make a difference in Torres-Valdivias’s case.

2. Matter o

f Jean and Adjustment of Status Applications

Torres-Valdivias arg ues that Matter of Jean does not apply to h im b ecause, u nlike J ean, Torres-Valdivias is not an inadmissible alien a n d therefore remains statutorily elig ible for adjustment of status under 8 U.S.C. § 1255(i). As this case

comes to us, the parties ag ree that h is conviction for sex ual battery receives the benefit of the petty o ffense ex c e p t i on to inadmissibility
, 8 U.S.C. § 1182(a)(2)(A)(ii)(I I ). As such, Torres-Valdivias remained statutorily e lig ible for adjustment of status without needing to apply for a waiver o f inadmissibility

. Torres-Valdivias thus arg ues that Matter of Jean
, w hich e stablishe d a standard in a case involving a § 209(c) waiver of inadmissibility , is inapplicable here.T O R R E S -V A LD I V I A S V

. H O L D E R 14

W e disag ree. Torres-Valdivias fails to acknowledg e that Matter of Je a n a p p l i ed its standard not only in deciding the § 209(c) waiver question, but a lso in deny ing asy lum un d e r § 1158 as a matter of discretion. The scope of Matter of Jean is therefore not a s narrow as Torres-Valdivias arg ues, as it plainly applies bey ond the contex t of waivers o f inadmissibility

. Of note, the A ttorney General has promulg a ted the Matter o f Jean standard in the broader
contex t of § 212(h) waivers of inadmi s s i b ility —which, unlike § 209(c) waivers, are not limite d t o r e fug ees. See W a iver o f Criminal Grounds of I n admissibility for I mmig rants, 67 F ed. Reg

. 78,675 (Dec. 26, 2002) ( cod i fied at 8 C.F .R. § 1212.7(d)). 3

Given the broad lang u ag e employ e d by the Attorney General in M

atter of Jean and its focus o n his discretion, we uphold the B I A’s broad reading of Matter of Jean

. I n Matter of Jean
, the A ttorney General effectively overruled the B I A ’s practice of g ranting discretionary forms of rel i e f to a liens having bee n convicted of v iolent o r dang erous crimes. W h ether an alien apply ing f or relief from removal has shaken

a baby to death as in M

atter of Jean o r has c ommitted sex ual battery of a ten-y ear-old as in this case, the Attorney General has determined that these are r epr e h ensible aliens to whom relief should be denied in a ll but the most ex traordinary circumstances. Matter o

f Jean by its own terms is not limited
to the waiver of inadmissibility contex t, as it also applied its

3 T o rres- V ald iv ias’ s arg u m en t t h at t h e ap p licatio n o f Ma tter o f Jea n read s 8 C .F.R. § 1 2 1 2.7 (d ) in to t h e p etty o f

f en s es ex cep t io n to i n ad m issib ility
, 8 U.S.C. § 1 18 2 (a)(2 )(A )(ii)(II), is w ith o u t m er i t

. Th e BI A d id n ot ap p ly Ma tter o

f Jea n to f

in d T o rres-V a l d iv ias in ad m issib le

n o tw ith stan d in g th e statu t o ry p etty o f f en se ex cep tio n ; in stead
, it ap p lied Ma tter o f Jea n to g u i d e th e ex ercise o f its u ltim ate d iscretio n as to w h eth er to g ran t T o rres- V ald iv ias ad j u stm en t o f

statu s u n d er 8 U.S.C. § 1 2 5 5(i).T O R R E S -V A LD I V I A S V

. H O L D E R 15

standard to deny ing J ean’s application for asy lum as a matter of discretion. This broad reading of M atter of Jean is f

urther supported by the B I A ’s published decision in Matter of K–A–
, 23 I

. & N. D ec. 661 (BI A 2 0 0 4 ), which n o ted that “[ t] he Att o rney General has communicated in unequivocal terms that h e is not inclined to ex ercise his discretion f a vorably with respect to aliens who have been convicted of dang erous

or v io l e n t crimes ex cept in the most ex ceptional circumstances.” I

d. at 666 (citing Matter of J ean , 2 3 I

. & N. Dec. at 383).

3. Chang e in Standard from Matter of Arai to Matter of Jean

W e a r e somewhat concerned that the B I A in this case applied, for a p p a r e ntly the first time, the heig htened Matter of Jean standard in a case that w ould pre v i o u s l y have been
g overned by Matter of Arai without issui n g a p ublished decision and without acknowledg ing Matter of Arai

.

B e cause the B I A here d id n ot p ublish its decision and the
outcome here is not d irectly con t r o l led b y Matter of Jean o r by 8 C

. F.R. § 1212.7(d), which address different I N A provisions, we may not g rant the B I A the Chevron 4 deference that we have prev i o u s l y held justifies 8 C.F .R. § 1212.7(d). See Castrijon-Garcia v

. Holder
, 704 F .3d 1205, 1210 (9th Cir. 2013) (“ Chevron deference is afforded to an unpublished de ci s ion only when it is ‘directly controlled by a published d e cision interpreting the same statute.’”) (quoting Uppal v. Holder
, 6 05 F .3d 712, 714 (9 t h C ir. 2010)); Mejia v

.

4 Ch evro n , U.S .A., In c. v. Na tu ra l Res. Def. C o u n cil, In c. , 4 6 7 U.S. 8 3 7 (1 9 8 4).T O R R E S -V A LD I V I A S V

. H O L D E R 16

Gonzales
, 499 F .3d 991, 995–97 (9th Cir. 2 007) (apply ing Chevron deference and upholding 8 C.F .R. § 1212.7(d)).

The precedent decision di r ectly o n point—that is, the precedent d ecision addressing the standard applicable in t he § 1255 adjustment of status contex t—is, as Torres-Valdivias
arg ues, Matter of

Arai

. See Rashtabadi v. INS
, 23 F .3d 1562, 1570 ( 9th Cir. 1994) (“This [ Matter of Arai ] approach is employ e d in considering a p plications for adjustment of status

. . . .”). “Thoug h the ag ency ’s discretion is u n fe t tered at the outset, if it announces and follows

. . . a g ener a l policy b y which its e x ercise of discretion will be g overned, an irrational departure from that policy

. . . co u l d constitute action that
must be overturned as ‘arbitrary
, capricious, [ or] an abuse o f discretion.’” INS v. Y

ueh-Shaio Y

ang , 519 U.S. 26, 32 (1996) (second alteration in orig inal) (quoting 5 U.S.C. § 706(2)(A)). The arbitrary or capricious standard is r a t h er easy for an ag ency to satisfy
, and requires little more t h a n a reasoned

ex p lanation. 5 “To be sure, the requirement that a n ag ency provide reasoned ex planation for its action would ordinarily demand that it display a

w areness that it is chang ing position. An ag ency may not, for ex ample, depart from a prior p olicy sub silentio or simply disr e ga r d rules that are still on the books.” FCC v. Fox Television Stations, Inc.
, 556 U.S. 502, 515 (2009).

5 In d eed
, th e Su

p rem e Co u rt h as i n d icated th at th is s tan d ard d if f ers little f ro m t h e d e f eren ce acco rd ed u n d er Ch evro n , w h ich is s im

p ly an in q u iry in to “ w h eth er an ag en cy i n terp retat i o n i s ‘ arb itrary o r cap ricio u s in

su b stan ce.’ ” Ju d

ula ng v. Ho ld

er , 1 3 2 S. Ct. 4 7 6
, 4 8 3 n .7 (2 0 1 1 ) (q u o tin g Ma yo Fo un d

. fo r Med

. Ed u c. & Resea rch v. Un ited S ta tes , 1 3 1 S. C t. 7 0 4
, 7 1 1 (2 01 1 )).T O R R E S -V A LD I V I A S V

. H O L D E R 17

W e conclude that the B I A’s decisions in this case a re sufficient to satisfy its oblig a tion not to act in an arbitrary or capricious manner. Despite the B I A’s failure to acknowledg e Matter of Arai notwithstandi ng Torres-Valdivias’s citations
to it in his briefing to the B I A, the B I A ex plained why Matter of Jean is the controlling precedent. I n addition, the B I A also adopted a

nd affirmed the I J ’s d ecisio n; in turn, the I J acknowledg ed that Matter of Jean “substantially altered [ the Matter o f Arai ] a p p r o a c h in cases” w here a violent o r dang erous offense is involved. The combination of the I J a nd B I A’s d ecisions s u fficiently justifies any chang e in the applicable standard.

IV. Conclusion

W e uphold the B I A’s decision not to apply the categ orical approach in g uiding its discretion t o determine whether a crime is violent or dang erous for purposes of M atter of Jean

. The B I A’s ultimate decision that a crime is in fact violent o r dang erous is a discretionary decision, which this court lacks j u r i s diction to review. F inally
, the B I A did not err i n

ex t e n d i n g the Matter of Jean standard to the contex t o f adjustment of status applications under 8 U.S.C. § 1255.

I n accordance with our holding s, we dismiss the petition for review for lack of jurisdiction insofar as it challeng es the B I A’s discretionary determination that Torres-Valdivias’s

sex ual battery offense is a vi o l e n t o r dang erous crime. W e further deny the petition for review insofar a s i t challeng e s the B I A’s f

ailure to apply the categ orical approach and its application of the heig htened Matter of Jean standard.

P ETITION F OR R EVIEW D ISMISSED in part and DENIED in part.