Ninth Circuit Denies Withholding of Removal to Drug Trafficker, Declines to Revisit Chevron-Era Precedent

The Ninth Circuit has denied a petition for review filed by a Gambian lawful permanent resident convicted of conspiracy to distribute methamphetamine, holding that his conviction was a particularly serious crime barring withholding of removal. The petitioner separately feared persecution in The Gambia based on a fatwa allegedly issued against him after a radio interview in which he described unorthodox religious views.

The Court held that the strong presumption from Matter of Y-L- that drug trafficking aggravated felonies are particularly serious crimes also triggers the regulatory presumption that the person is a danger to the community, without requiring a separate dangerousness finding. The Court declined to overrule its own precedent deferring to that presumption under the now-abrogated Chevron framework, explaining that Loper Bright's overruling of Chevron does not itself unsettle prior decisions that relied on it, under the doctrine of statutory stare decisis.

The full text of Sarr v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/07/07/24-5264.pdf

Fourth Circuit Remands for Proper Application of Particularly Serious Crime Test Despite Incredible Testimony

The Fourth Circuit has granted in part a petition for review filed by a Salvadoran asylum applicant whose claims of persecution by a transnational cartel were found not credible by the immigration judge. The applicant was also found statutorily barred from asylum and withholding of removal based on a Virginia conviction for assault and battery against a family member, which the judge deemed a particularly serious crime.

The Court upheld the adverse credibility determination and the denial of CAT relief, agreeing that the applicant's account of his encounters with the cartel was properly found implausible and uncorroborated. However, the Court held that the immigration judge failed to apply the required two-step test for the particularly serious crime bar, evaluating the elements of the offense only after describing its underlying facts rather than before. The Court remanded for the agency to properly apply its own precedent.

The full text of Guevara Martinez v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/251429.P.pdf

BIA Finds Pennsylvania Drug Trafficking Conviction Is a Particularly Serious Crime

The Board of Immigration Appeals has held that a Pennsylvania conviction for possession with intent to deliver a controlled substance was a particularly serious crime. The respondent, a transgender woman from Jamaica, had previously been granted asylum, and DHS appealed.

The Board found that the offense involved serious drug trafficking conduct, including a significant sentence and circumstances showing a large packaged quantity of marijuana and attempted concealment from police. The Board also denied CAT protection, finding that past harm was inflicted by private actors and that the respondent had not shown likely government acquiescence in future torture. The Board sustained DHS’s appeal and ordered removal to Jamaica.

The full text of Matter of G-L-C- can be found here: https://www.justice.gov/eoir/media/1449211/dl?inline

BIA Finds Health Care Fraud Conviction Is a Particularly Serious Crime

The Board of Immigration Appeals has determined that a federal health care fraud conviction under 18 USC 1347 is a particularly serious crime. The respondent, a lawful permanent resident from Nigeria, had been convicted of health care fraud involving millions of dollars in loss and sought asylum, withholding, and CAT protection.

The Board concluded that health care fraud inherently involves deceitful conduct and can qualify as a particularly serious crime, even though it is a property offense. The Board noted that aggravated felonies are a category of crimes that are more likely to fall within the ambit of a particularly serious crime. The amount of loss, restitution, and the respondent’s role in the offense supported the particularly serious crime finding. The Board also upheld the denial of CAT protection, finding that the respondent had not shown that kidnapping or torture in Nigeria was more likely than not.

The full text of Matter of J-O-A- can be found here: https://www.justice.gov/eoir/media/1444231/dl?inline

BIA Finds that there is no Presumption that a Misdemeanor is not a Particularly Serious Crime

The Board of Immigration Appeals has determined that there is no presumption that a single misdemeanor does not qualify as a particularly serious crime, but rather, the analysis in Matter of N-A-M- governs the determination.

The full text of Matter of E-A-S-O- can be found here:

https://www.justice.gov/eoir/media/1426071/dl?inline

Third Circuit Remands Fear-Related Claims

The Third Circuit has remanded a Nigerian man’s fear-related claims, finding the agency failed to properly analyze the elements of conviction before concluding it was a particularly serious crime and finding that the agency failed to employ the proper CAT analysis.

The full text of Amos v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/222095p.pdf

Ninth Circuit Permits Reliance on I-213 in PSC Determination

The Ninth Circuit has reaffirmed the presumed validity of a Form I-213, even when it is used to determine that an individual was convicted of a particularly serious crime. In so doing, the court distinguished its decision in Alcaraz-Enriquez by noting that the petitioner did not challenge the accuracy of the Form I-213.

The full text of Hernandez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/31/20-72138.pdf

BIA Finds that FL Deferred Adjudication Constitutes "Conviction by Final Judgment"

The Board of Immigration Appeals has determined that a Florida deferred adjudication - which involved a defendant who pled nolo contendere and received a probationary sentence - not only qualifies as a conviction for immigration purposes, but also qualifies as a “conviction by final judgment” for particularly serious crime purposes.

The full text of Matter of D-L-S- can be found here:

https://www.justice.gov/eoir/page/file/1512791/download

AG Says that Agency Can Consider Mental Health Conditions in Particularly Serious Crime Determination

The Attorney General has determined that the agency may consider an applicant’s mental health conditions when determining if the applicant has been convicted of a particularly serious crime. “In some circumstances, a respondent’s mental health condition may indicate that the respondent does not pose a danger to the community— for instance, where the respondent ‘suffered from intimate partner violence, was convicted of assaulting his or her abuser, and reliable evidence showed that the individual’s diagnosed post-traumatic stress disorder had played a substantial motivating role in the assault.’ Of course, an individual may pose a danger to the community notwithstanding a mental health condition, and in those cases, the ‘particularly serious crime’ bar to asylum and withholding of removal may apply. But the potential relevance of mental health evidence to the dangerousness inquiry suffices to establish that such evidence should not categorically be disregarded, as G-G-S- held.”

The full text of Matter of B-Z-R- can be found here:

https://www.justice.gov/eoir/page/file/1504486/download

BIA Finds that Asylee Must Have Asylum at Time of AOS Application

The Board of Immigration Appeals has determined that a non-citizen is not eligible for an asylee adjustment of status if his asylum status has been terminated prior to filing the adjustment application. The Board also affirmed that the applicant’s convictions for bank fraud and identity theft were particularly serious crimes that rendered him ineligible for withholding of removal.

The full text of Matter of T-C-A- can be found here:

https://www.justice.gov/eoir/page/file/1476746/download

First Circuit Remands Particularly Serious Crime Finding

The First Circuit has remanded a case in which the Immigration Judge concluded that the petitioner was ineligible for withholding of removal due to a drug trafficking conviction without analyzing whether the presumption arising in Matter of Y-L- had been rebutted. In addition, the petitioner argued that the Y-L- is effectively treated as a conclusion that all drug trafficking convictions are particularly serious crimes, as opposed to a rebuttable presumption. The court noted that the government had not presented a single case in which the agency found someone had rebutted the presumption, and thus, indicated the government could supplement the record on remand with any cases in which the agency found the presumption had been rebutted.

The full text of Decarvalho v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1711P-01A.pdf

Ninth Circuit Limits Applicability of Mental Illness in Particularly Serious Crime Determination

The Ninth Circuit has determined that the agency must only reference a petitioner’s mental illness during a particularly serious crime analysis if the petitioner presents evidence attributing the crime to mental illness. The court also determined that the agency was not required to terminate proceedings for a mentally ill petitioner who physically attacked his qualified representative and who refused to cooperate in any document collection efforts made by his representative.

The full text of Benedicto v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/09/18-73237.pdf

Eighth Circuit Finds that Mental Health is not Relevant in Drug Trafficking PSC Analysis unless Presumption of PSC is Overcome

The Eighth Circuit has determined that the agency need not consider an applicant’s mental health in its particularly serious crime analysis when invoking the presumption in Matter of Y-L- that drug trafficking crimes are particularly serious crimes, unless the applicant first overcomes that presumption.

The full text of Gilbertson v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/08/202355P.pdf

Eighth Circuit Construes Non-Per Se PSC Definition

The Eighth Circuit has determined that a crime which is not a per se particularly serious crime must be of the type that shows that the applicant is a danger to the community and must be “excessive in quality or extent to some unusual degree.”

The full text of Mumad v. Attorney General can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/08/202140P.pdf

Tenth Circuit Concludes UT Terroristic Threats Conviction is CIMT; Affirms Matter of G-G-S-

The Tenth Circuit has determined that a Utah terroristic threats conviction is a crime involving moral turpitude. “We hold that recklessly threatening substantial property damage with the intent of interrupting public access to a portion of a building is a CIMT.” The court also affirmed Matter of G-G-S- and determined that the agency need not consider a petitioner’s mental health when determining whether the petitioner has been convicted of a particularly serious crime.

The full text of the extremely sad case of Birhanu v. Wilkinson can be found here:

https://www.ca10.uscourts.gov/opinions/19/19-9599.pdf

Eighth Circuit Rules that Mental Health Conditions Must be Considered in Particularly Serious Crime Analysis

The Eighth Circuit has joined the Ninth Circuit in finding that a petitioner’s mental health struggles must be considered by the agency when determining if a petitioner has been convicted of a particularly serious crime. “However, we fail to understand how a petitioner’s mental health can never be relevant to the circumstances and underlying facts”of the conviction, especially, as the BIA noted, in light of the impact mental illness can have on an individual’s behavior. As such, we find that the BIA’s categorical bar of consideration of mental health evidence, as contemplated in Matter of G-G-S-, is an arbitrary and capricious construction of 8 U.S.C. § 1231, and we reject such a categorical evidentiary bar in the particularly serious crime analysis.”

The full text of Shazi v. Wilkinson can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/02/192842P.pdf

Third Circuit Remands for Application of Particularly Serious Crime Standard; Opportunity to Submit Corroborating Evidence

The Third Circuit has remanded a case in which the agency determined a fraud conviction resulting in losses to the victims in excess of $1,000,000 was a particularly serious crime without considering whether the elements of the offense bring the conviction within the ambit of a particularly serious crime. The court also determined that the Immigration Judge had not specified what corroborating evidence she believed was missing, nor given the applicant a chance to obtain that evidence. This error also required remand.

The full text of Luziga v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/172444p.pdf

Third Circuit Finds that Particularly Serious Crime Bar to Asylum and Withholding Includes Non-Aggravated Felonies

In a departure from prior precedent, the Third Circuit has determined that the particularly serious crime bar, as applied in both the asylum and withholding of removal contexts, includes non-aggravated felonies. The court concluded that in the asylum context, (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. Similarly, the withholding context, aggravated felonies are a subset of particularly serious crimes and 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.

The full text of Bastardo-Vale v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/172017p.pdf

Ninth Circuit Rules that Sentencing Enhancements can be Considered in Particularly Serious Crime Analysis

The Ninth Circuit has determined that a sentencing enhancement can be considered when determining whether a petitioner has been convicted of a per se particularly serious crime (i.e., whether it is an aggravated felony for which a sentence of at least five years was imposed).

The full text of Mairena v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/15-72833.pdf

Ninth Circuit Rejects Vagueness Challenge to Particularly Serious Crime Bar

The Ninth Circuit has revisited its jurisprudence regarding whether the particularly serious crime bar is unconstitutionally vague. The court recognized that the Supreme Court’s most recent case law on vagueness rules out the legal standard that‘a statute is void for vagueness only if it is vague in all its applications. Nevertheless, even with this updated case law in mind, the court found the statute not to be unconstitutionally vague.

“We know with certainty that a minor traffic infraction is not particularly serious and that a heinous, violent crime is particularly serious. But for the crimes in between, the statute provides little guidance. Instead, the statute provides an uncertain standard to be applied to a wide range of fact-specific scenarios. In that sense, the standard is uncertain. But that kind of uncertainty does not mean that a statute is unconstitutionally vague. Many statutes provide uncertain standards and, so long as those standards are applied to real world facts, the statutes are almost certainly constitutional.”

“Critically, the particularly serious crime inquiry in 8 U.S.C. § 1231(b)(3)(B)(ii) applies only to real-world facts. Unlike many standards in the immigration context, the particularly serious crime inquiry requires the BIA to assess what the alien actually did.”

The full text of Guerrero v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/09/15-72080.pdf