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Bastardo-Vale v. Attorney General United States of America

United States Court of Appeals, Third Circuit

August 12, 2019

CARLOS EDUARDO BASTARDO-VALE, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

          Argued on May 24, 2018 before Merits Panel

          Argued En Banc on May 15, 2019

          On Petition for Review of an Order of The Board of Immigration Appeals (Agency No. A206-907-703) Immigration Judge: Quynh Vu Bain

          Rosa Barreca Cherylle C. Corpuz [ARGUED] Morais Law Counsel for Petitioner.

          Benjamin M. Moss [ARGUED] Judith R. O'Sullivan United States Department of Justice Counsel for Respondent.

          Joseph C. Hohenstein [ARGUED] Landau Hess Simon & Choi Counsel for Amicus Curiae American Immigration Lawyers Association.

          Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, and MATEY, Circuit Judges.

          OPINION

          SHWARTZ, CIRCUIT JUDGE

         Today we decide whether the phrase "particularly serious crime" as used in both the asylum and withholding of removal statutes, 8 U.S.C. §§ 1158(b)(2), 1231(b)(3), includes, but is not limited to, aggravated felonies. We hold that it does. The phrase "particularly serious crime" means the same thing in both statutes, and the language of those statutes shows that aggravated felonies are a subset of particularly serious crimes.

         In reaching this conclusion, we overrule Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006), where we defined the phrase "particularly serious crime" in the context of withholding of removal to include only aggravated felonies. Because we revisit this precedent and agree with the Board of Immigration Appeals' ("BIA") decision that Petitioner Carlos Eduardo Bastardo-Vale committed a particularly serious crime that barred him from obtaining asylum and withholding of removal relief, we will deny the petition for review.

         I

         Bastardo-Vale petitions for review of the BIA decision that his conviction for second-degree unlawful imprisonment under Delaware law constitutes a "particularly serious crime," rendering him ineligible for both asylum and withholding of removal relief. 8 U.S.C. §§ 1158(b)(2), 1231(b)(3). His state conviction arose from a forcible sexual encounter with a college freshman ("victim"). At the time of the incident, Bastardo-Vale, a native and citizen of Venezuela who entered the United States on a nonimmigrant student visa, was a graduate resident assistant at Goldey-Beacom College.

         In the early morning of November 10, 2013, Bastardo-Vale returned to his apartment. There, by the victim's account, Bastardo-Vale invited her to his apartment where he forcibly pulled her into his room and began raping her, or by Bastardo-Vale's account, they began to have consensual sex. According to the police report, the victim told Bastardo-Vale to "'stop' numerous times but he refused." A.R. 2187. She "freed herself by using her knee to strike [Bastardo-Vale] in the rib cage and push him off of her body." Id. The victim and Bastardo-Vale both left the apartment. About forty-five minutes later, Bastardo-Vale encountered security guards elsewhere on campus, who told him that they were looking for him because he had been accused of rape and instructed him to "stay." A.R. 260. Bastardo-Vale ignored their direction, returned to his apartment to retrieve a used condom, and tossed it into a dumpster. He claimed that he discarded the evidence because, as a graduate resident assistant, he risked losing his scholarship by having sexual relations with a freshman.

         Bastardo-Vale pleaded no contest to second-degree unlawful imprisonment in violation of Del. Code Ann. tit. 11, § 781 and was sentenced to the maximum term of one year's imprisonment, which was suspended for eleven months of time served.

         The Department of Homeland Security ("DHS") then charged Bastardo-Vale with removability under 8 U.S.C. § 1227(a)(2)(A)(i), for being convicted of a crime involving moral turpitude, and under 8 U.S.C. § 1227(a)(1)(C)(i), for failing to comply with the conditions of his nonimmigrant status. The Immigration Judge ("IJ") found Bastardo-Vale was removable because he had stopped attending college and thus failed to comply with the "conditions of his admission to nonimmigrant student status." A.R. 197. Bastardo-Vale applied for asylum, withholding of removal, and Convention Against Torture ("CAT") relief based primarily on his claim that he was harmed in his country of origin on account of an imputed political opinion stemming from his mother's political activities. DHS argued that Bastardo-Vale was not entitled to asylum and withholding of removal because he had been convicted of a particularly serious crime and was a "danger to the community of the United States." 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(3)(B)(ii). The IJ rejected that argument and instead of applying Alaka, which limited the phrase "particularly serious crime" to aggravated felonies, it relied on In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007), aff'd per curiam, 587 F.3d 1052 (10th Cir. 2009). Applying N-A-M-, the IJ determined that Bastardo-Vale's conviction was not for a particularly serious crime because (1) it "was based on a plea agreement pursuant to which [he] pled no contest," A.R. 203; (2) there was no evidence suggesting he used "physical force to confine the victim in his apartment," A.R. 204, and (3) he "received a sentence of one year, all of which was suspended for time served . . . [which] suggest[s] that the criminal court did not consider him a danger to the community," A.R. 204. The IJ noted that Bastardo-Vale's attempt to dispose of evidence was "very troubling" but insufficient to make his crime a particularly serious offense. A.R. 204. The IJ therefore found that he was eligible for asylum and had no need to consider his request for withholding of removal or CAT relief. DHS appealed the IJ's finding that Bastardo-Vale's conviction was not for a particularly serious crime.

         The BIA agreed with DHS, disregarded our precedent in Alaka, and held that Bastardo-Vale had "been convicted of a particularly serious crime under [the BIA's] case-by-case approach set forth in," among other cases, N-A-M-. A.R. 6. The BIA concluded that the Delaware unlawful imprisonment statute encompasses conduct involving physical force and intimidation, as well as that which "places at risk a particularly vulnerable segment of society . . . [so the] conviction falls within the potential ambit of a particularly serious crime." A.R. 6. The BIA concluded the circumstances of Bastardo-Vale's offense demonstrated its seriousness because "[t]he use of physical force to overcome another's desire to terminate a sexual encounter, whether originally consented to or not, is an inherently violent act that places a victim in fear for their safety." A.R. 6-7. The BIA held that Bastardo-Vale's conviction for a particularly serious crime barred him from receiving asylum and withholding of removal but remanded the matter to the IJ to address whether he was entitled to CAT relief.[1]

         On remand, Bastardo-Vale withdrew his CAT claim, and the IJ ordered Bastardo-Vale removed. Bastardo-Vale appealed the IJ's decision to the BIA for it to certify the ruling as final and petitioned our Court for review.[2] The BIA determined that "there [was] nothing left for [it] to decide regarding" Bastardo-Vale's asylum or withholding of removal applications, Supp. App. 10, but again remanded the matter for the IJ to determine his country of removal. The IJ subsequently ordered Bastardo-Vale removed to Venezuela.

         Bastardo-Vale seeks review of the BIA's determination that his conviction for second-degree unlawful imprisonment qualifies as a particularly serious crime and asserts that he is entitled to asylum and withholding of removal. He claims that the BIA erred in disregarding Alaka and holding that his non-aggravated offense was a "particularly serious crime" that bars him from relief.

         After oral argument before a panel of our Court, we elected sua sponte to hear the case en banc to determine whether Alaka remains good law. We now examine the phrase "particularly serious crime" under both the asylum and withholding of removal statutes as well as the rulings of our sister circuits who have concluded that the phrase "particularly serious crime" is not limited to aggravated felonies in either the asylum or withholding of removal context.

         II[3]

         A

         The IJ granted Bastardo-Vale asylum but the BIA overturned that ruling because it found that Bastardo-Vale was convicted of an offense it deemed to be a particularly serious crime, even though it was not an aggravated felony. To determine whether this is correct, we will first review the statutory framework for asylum.

         The Secretary of Homeland Security or the Attorney General may grant an asylum application if the alien shows that he is a "refugee" who is persecuted due to his race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1158(b)(1)(B)(i). Asylum, however, is unavailable to an alien, "convicted by a final judgment of a particularly serious crime," whom the Attorney General determines "constitutes a danger to the community of the United States." Id. § 1158(b)(2)(A)(ii).

         The phrase "particularly serious crime" is not defined in § 1158, but Congress included two "Special Rules" within the asylum statute addressing the subject. Id. § 1158(b)(2)(B). The Special Rules provide:

(i) Conviction of aggravated felony
For purposes of clause (ii) of subparagraph (A) [which bars an alien convicted of a particularly serious crime from asylum relief], an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.
(ii) Offenses
The Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) . . . of subparagraph (A).

Id. While the language in subsection (i) automatically designates aggravated felonies as particularly serious crimes, subsection (ii) shows that Congress did not limit the definition of particularly serious crimes to aggravated felonies. Indeed, the asylum statute authorizes the Attorney General to designate by regulation other offenses as particularly serious crimes. Id. § 1158(b)(2)(B)(ii). To say that the statute limits the types of offenses that could be considered particularly serious to aggravated felonies would render superfluous the Attorney General's power to designate offenses as particularly serious crimes by regulation. Gao v. Holder, 595 F.3d 549, 556 (4th Cir. 2010). Our reading ensures that we "give effect to every word" of the statute. Leocal v. Ashcroft, 543 U.S. 1, 12 (2004) (citation omitted).

         Moreover, reading "particularly serious crime" to include only aggravated felonies would improperly render the phrase meaningless as it would just be an alternate phrase for "aggravated felony." See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." (internal quotation marks and citation omitted)). Reading the plain language of the asylum statute to provide that aggravated felonies are just one category of crimes that are deemed particularly serious would give the phrases "particularly serious crime" and "aggravated felony" independent meaning.

         Such a reading would also render meaningless the Attorney General's power to designate other crimes as serious. See Delgado v. Holder, 648 F.3d 1095, 1106 (9th Cir. 2011) (en banc) ("There is little question that this latter provision permits the Attorney General, by regulation, to make particular crimes categorically particularly serious even though they are not aggravated felonies." (emphasis omitted)); Gao, 595 F.3d at 556 ("Given that the statute makes all aggravated felonies per se particularly serious, the Attorney General's power to designate offenses as such by regulation would be 'wholly redundant' if it were limited to aggravated felonies." (citation omitted)); Nethagani v. Mukasey, 532 F.3d 150, 156 (2d Cir. 2008) ("The Attorney General (or his agents) may determine that a crime is particularly serious for purposes of the asylum statute, 8 U.S.C. § 1158(b)(2)(B)(i), even though it is not an aggravated felony."); Ali v. Achim, 468 F.3d 462, 469 (7th Cir. 2006) ("Nowhere does § 1158 purport to prohibit the Attorney General from determining in a given case that an alien's nonaggravated felony is 'particularly serious' unless he had the foresight to explicitly itemize that particular crime by regulation.").

         Congress's grant of authority to the Attorney General to promulgate regulations to identify other offenses as particularly serious crimes further demonstrates that offenses other than aggravated felonies could be designated as per se particularly serious crimes. Through rulemaking, the Attorney General gives notice to the public of offenses, in addition to aggravated felonies, that may be designated as per se "particularly serious crimes" and receives comments. This authorization, however, is permissive and does not preclude the Attorney General from evaluating, on a case-by-case basis, whether the facts and circumstances of a conviction also support concluding that an individual alien committed a particularly serious crime. Immigration officials have proceeded via case-by-case adjudication since the early 1980s. See Delgado, 648 F.3d at 1106 (citing In re Frentescu, 18 I. & N. Dec. 244, 247 (1982)). We presume that Congress was aware of this procedure in 1996 when it granted the Attorney General the authority to identify by regulation categories of crimes that may be deemed per se particularly serious crimes. See id. ("Although Congress has amended the asylum statute's particularly serious crime bar over time, none of its actions have called into question the BIA's authority to designate offenses as particularly serious crimes through case-by-case adjudication."); see also Lorillard v. Pons, 434 U.S. 575, 580 (1978) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change."). Thus, the grant of regulatory authority to designate classes of offenses as particularly serious crimes did not displace the Attorney General's authority to also make case- specific determinations concerning whether an alien's offense should be deemed "particularly serious."[4] See Delgado, 648 F.3d at 1106 (holding that § 1158(b)(2)(B) "does not require the Attorney General to anticipate every adjudication by promulgating a regulation covering each particular crime"); Gao, 595 F.3d at 556 (rejecting the view that "regulation is the exclusive means by which the Attorney General can determine that a non-aggravated felony is a particularly serious crime" because, among other things, "requiring an agency to proceed by rulemaking alone could stultify the administrative process by rendering it inflexible and incapable of dealing with many of the specialized problems which arise" (internal citation and quotation marks omitted)); Ali, 468 F.3d at 469 (noting that "[a]n interpretation that requires the Attorney General and his agents to sift through each state's code and prospectively identify by regulation every single crime that would qualify as 'particularly serious' would impose an onerous burden," and that "[n]othing in the statute's text suggests a requirement that the Attorney General must engage in such an anticipatory task").[5]

         For these reasons, we hold that under the asylum statute, (1) aggravated felonies are a subset of offenses that constitute particularly serious crimes; (2) the Attorney General has the authority to designate other offenses as per se particularly serious; and (3) the Attorney General retains the authority, through a case-by-case evaluation of the facts surrounding an individual alien's specific offense, to deem that alien to have committed a particularly serious crime.

         B

         We next examine the phrase "particularly serious crime" in the withholding of removal statute to determine whether it also includes, but is not limited to, aggravated felonies. The "particularly serious crime" bar in that statute provides:

Subparagraph (A) [providing for withholding of removal] does not apply to an alien deportable under section 1227(a)(4)(D) of this title or if the Attorney General decides that- . . .
(ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States;
. . . For the purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.

8 U.S.C. § 1231(b)(3)(B).

         In Alaka, we interpreted the phrase "particularly serious crime" as used in the withholding statute to be limited to aggravated felonies. 456 F.3d at 104-05. The Alaka court examined only the withholding statute, and no party presented the Alaka court with the identical phrase from the asylum statute. Thus, the Alaka court was not required to consider whether the use of the phrase in the asylum statute should influence its interpretation of the identical phrase in the withholding statute. Unlike our colleagues in Alaka, we must interpret the phrase as used in both statutes because Bastardo-Vale seeks both asylum and withholding of removal relief. We must therefore proceed in this case mindful that "[i]n all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning." Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S.Ct. 1507, 1512 (2019) (citation omitted); Smith v. City of Jackson, 544 U.S. 228, 233 (2005) ("[W]hen Congress uses the same language in two statutes having similar purposes . . . it is appropriate to presume that Congress intended that text to have the same meaning in both statutes."). As a result, we will reexamine our earlier interpretation of the phrase "particularly serious crime" as it is used in the withholding of removal statute.

         As we already stated, the phrase "particularly serious crime" as used in the asylum statute includes but is not limited to aggravated felonies. Examining the identical phrase in the withholding of removal statute, we reach the same conclusion. The withholding of removal statute specifically lists a subset of aggravated felonies deemed per se "particularly serious crimes." The statute provides that "an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime." 8 U.S.C. § 1231(b)(3)(B). Through this language, Congress designated a category of aggravated felonies based upon the punishment imposed to be a particularly serious crime. In the very next sentence, Congress expressly stated that its directive concerning aliens convicted of aggravated felonies and sentenced to five or more years' imprisonment did 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 language embodies Congress's explicit statement that the Attorney General had the continuing authority to determine whether a crime is particularly serious. This demonstrates that Congress did not disturb the Attorney General's prior practice of deciding, on a case-by-case basis, whether an alien's crime was particularly serious. See N-A-M v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (observing that the "long history of case-by-case determination" of particularly serious crimes "counsels against . . . a bright-line rule" for determining which crimes are particularly serious (citations omitted)). Indeed, the language of § 1231(b)(3)(B) is permissive, not restrictive, in that it does not explicitly dictate that the only offenses that constitute particularly serious crimes are aggravated felonies. See Delgado, 648 F.3d at 1104; Gao, 595 F.3d at 555; N-A-M, 587 F.3d at 1056.

         Moreover, Congress used both "aggravated felony" and "particularly serious crimes" in the statute and, as stated earlier, we are obligated to give each word meaning. See N-A-M, 587 F.3d at 1056 (holding that "Congress's use of two different terms-'particularly serious' crime and 'aggravated' felony-is additionally indicative of substantively different meanings"). To say that only aggravated felonies are "particularly serious crimes" would render the words "particularly serious crime" surplusage. Put differently, if Congress did not intend for crimes other than aggravated felonies to disqualify aliens from withholding of removal, then it would have simply said that (1) an alien convicted of an aggravated felony and sentenced to at least five years of imprisonment is barred from relief and that (2) the Attorney General may, in his discretion, bar those who are convicted of an aggravated felony and who received sentences of less than five years from relief. Congress's inclusion of the words "particularly serious crime" in addition to the words "aggravated felony" conveys that the bar may apply to those who are convicted of crimes other than aggravated felonies too when the Attorney General determines the offense is a particularly serious crime.

         In sum, the language of the withholding of removal statute shows that aggravated felonies are a subset of particularly serious crimes and that Congress has deemed one subset of aggravated felonies, namely those for which the alien was sentenced to at least five years, particularly serious per se. Our sister circuits have also embraced the view that the phrase "particularly serious crime" as used in the withholding of removal statute includes but is not limited to aggravated felonies. See Delgado, 648 F.3d at 1102-04; Gao, 595 F.3d at 554-55; N-A-M, 587 F.3d at 1056; Nethagani, 532 F.3d at 156-57; see also Valerio-Ramirez v. Sessions, 882 F.3d 289, 296 (1st Cir. 2018) (adopting a case-by-case approach for determining "whether a non-aggravated felony qualifies as a particularly serious crime rendering an alien ineligible for withholding of deportation" (internal quotation marks omitted)). Thus, ...


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