- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 08-19-2011
- Case #: 03-74442
- Judge(s)/Court Below: Circuit Judge Fisher for the Court; Chief Judge Kozinski; Circuit Judges Canby, O’Scannlain, McKeown, Bybee, Callahan, Bea, Milan D. Smith, Jr., N. Randy Smith; Partial Concurrence by Circuit Judge Reinhardt.
- Full Text Opinion
Delgado, an El Salvadorian, came to the U.S. on visa in 1980 after his parents were murdered for political reasons. Delgado had been present in the U.S. since 1980 and was convicted on three DUIs. Immigration and Naturalization Service (INS) initiated removal proceedings after Delgado served his second sentence. Delgado was convicted of his third DUI while still on parole. During the subsequent immigration hearing, Delgado appeared pro se in which he inter alia conceded removability, sought asylum, and withholding of removal. The Immigration Judge denied Delgado’s holding “he had been convicted of a particularly serious crime”. The Board of Immigration Appeals (BIA) affirmed stating Delgado’s convictions rose to the level of being “particularly serious”. Delgado appealed. The Ninth Circuit held that the Court retains jurisdiction to review whether a crime was “particularly serious”, overruling Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001). The Court also found that for withholding of removal, particularly serious crimes are not limited to aggravated felonies and for asylum particularly serious crimes are not limited to those defined by the Attorney General. The Court held that withholding of removal and asylum do not apply to aliens convicted of particularly serious crimes. The Court found that BIA’s interpretation that DUIs are a “particularly serious crime” was reasonable under Chevron deference. Finally, the Court held that the BIA’s holding was not instructive on which DUI was “particularly serious”. Petition GRANTED in part and DENIED in part and CASE REMANDED.