CA9 on Particularly Serious Crime: Mendoza-Garcia v. Garland

Mendoza-Garcia v. Garland

"The BIA reviews de novo the IJ’s determination of “questions of law, discretion, and judgment,” 8 C.F.R. § 1003.1(d)(3)(ii), including whether an alien’s prior offense is a “particularly serious crime.” It is unclear whether the BIA undertook that de novo review here, because it applied a “presumption” that Petitioner’s conviction was a particularly serious crime and required him to “rebut” this presumption. But for those offenses that are not defined by the statute itself as “per se a particularly serious crime,” the BIA’s precedent establishes “a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious.” Bare, 975 F.3d at 961. Moreover, we have rejected the view that there is any subset of such cases that is exempt from this multi-factor analysis “based solely on the elements of the offense.” Blandino-Medina, 712 F.3d at 1348. The BIA’s application of a rebuttable presumption is difficult to square with these precedents, and the Government concedes in its brief that the BIA’s application of such a presumption “appears erroneous.” The BIA committed an error of law, and abused its discretion, in failing to apply the correct legal standards in assessing whether Petitioner’s offense was a “particularly serious crime.” We therefore remand to the BIA to consider Petitioner’s application for withholding of removal under the correct standards."

[Hats off to Nancy Alexander, Kari E. Hong, Boston College Law School, Newton, Massachusetts; Elisa Steglich, Attorney; Simon Lu and Jill Applegate, Supervised Law Student; University of Texas School of Law, Austin, Texas; for Amicus Curiae American Immigration Lawyers Association!]