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Valerio-Ramirez v. Sessions

United States Court of Appeals, First Circuit

February 15, 2018



          Mary P. Holper and Boston College Legal Services LAB Immigration Clinic for petitioner.

          John Willshire Carrera and Philip L. Torrey on brief for Harvard Immigration and Refugee Clinical Program and Immigrant Defense Project, amici curiae.

          Margaret Kuehne Taylor, Senior Litigation Counsel, Office of Immigration Litigation, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Derek C. Julius, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

          Before Lynch, Circuit Judge, Souter, [*] Associate Justice, and Selya, Circuit Judge.

          LYNCH, Circuit Judge.

         This case involves what constitutes a "particularly serious crime, " the commission of which renders a petitioner ineligible for withholding of deportation or removal.

         The case is before this court for the second time. An Immigration Judge ("IJ") determined that Lizbeth Valerio-Ramirez's ("Valerio") conviction for aggravated identity theft was a "particularly serious crime" that rendered her ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). The Board of Immigration Appeals ("BIA") affirmed, but noted in passing that Valerio was subject to deportation, under 8 U.S.C. § 1253(h), not removal. On petition for review, this court vacated the BIA's decision and remanded to the BIA to clarify the applicable legal standard. Velerio-Ramirez v. Lynch, 808 F.3d 111 (1st Cir. 2015). On remand, the BIA concluded that in deportation and removal proceedings alike, its longstanding framework under Matter of Frentescu supplies the standard for determining whether a non-aggravated felony qualifies as a "particularly serious crime." See 18 I. & N. Dec. 244, 247 (B.I.A. 1982). Reiterating its prior reasoning, the BIA again found Valerio ineligible for withholding.

         We find no error as to the applicable legal framework adopted by the BIA. We also find that we have jurisdiction to review the merits of the BIA's determination that Valerio's crime is "particularly serious." Having carefully reviewed the record, we conclude that the BIA did not abuse its discretion. Accordingly, we deny Valerio's petitions for review.

         I. Background

         In March 1991, Valerio, a native and citizen of Costa Rica, entered the United States without inspection. She was apprehended and placed in deportation proceedings, which were administratively closed when she failed to appear at her initial hearing.

         Soon thereafter, Valerio's then-boyfriend Carlos Gomez purchased her a birth certificate and social security card in the name of Ms. Rosa Hernandez, a U.S. citizen who lived in Puerto Rico. From 1995 to 2007, Valerio used Hernandez's identity to secure employment, open numerous lines of credit, and purchase two cars and a home. Valerio also used Hernandez's identity to defraud the government of over $176, 000 in housing assistance, food stamps, and other welfare benefits. In 2006, the real Rosa Hernandez learned while trying to purchase a car that someone had opened lines of credit under her name. A year later, Valerio was apprehended, and in 2010, after a jury trial in federal court, she was found guilty of one count of aggravated identity theft under 18 U.S.C. § 1028A and three counts of mail fraud under 18 U.S.C. § 1341. She was sentenced to two years' imprisonment, the mandatory minimum. See 18 U.S.C. § 1028A(a)(1).

         In 2011, after Valerio had served her sentence, the Department of Homeland Security ("DHS") reopened her deportation proceedings. By then, Congress had replaced "deportation, " subject to § 1253, with "removal, " subject to § 1231. DHS mistakenly treated Valerio as being in removal proceedings, and Valerio in turn applied for both asylum and withholding of removal.[1]

         In 2013, the IJ found Valerio removable and ineligible for withholding of removal. The IJ determined that Valerio's conviction for aggravated identity theft was a "particularly serious crime" that barred her from obtaining withholding of removal under § 1231(b)(3)(B)(ii). In making this determination, the IJ applied the multi-factor test articulated in Matter of Frentescu, which instructs courts to "look to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community."18 I. & N. Dec. at 247. We detail the IJ's application of the Frentescu factors later.

         In 2014, the BIA upheld the IJ's decision. In a footnote, the BIA pointed out sua sponte that the IJ had erroneously applied the removal statute (§ 1231) instead of the deportation statute (§ 1253). However, it deemed the error harmless because "[t]he particularly serious crime analysis is the same under both provisions." The BIA opined that the IJ soundly applied the Frentescu criteria in examining Valerio's crime, and went on to address specific arguments that Valerio raised in her appeal. As to Valerio's sentence, the BIA found that it reflected Valerio's "personal situation" rather than an assessment by the sentencing judge that her actions were of lesser seriousness; to the contrary, it found, the circumstances in this case demonstrated the unusually serious nature of Valerio's scheme. As to Valerio's argument that her conviction was for a "nonviolent, victimless crime, " the BIA explained that although violence was indeed not at issue here, there were real victims: the subject of the identity theft, whose social security number and identity were stolen, and the government, which was defrauded of at least $176, 000. Considering the harm Valerio caused to Hernandez and society as a whole, and commenting that "[i]dentity theft is a serious problem in our society, " the BIA "d[id] not accept [Valerio's] claim that she poses no threat to society or to other individuals."

         As said, in 2015, on Valerio's petition for review, a panel of this court remanded the case to the BIA "in an abundance of caution." Velerio-Ramirez, 808 F.3d at 112. The reasons for the remand are stated in that opinion. In 2016, after remand, and without taking additional briefing, the BIA succinctly reaffirmed its prior decision, finding "no change [was] warranted in [its] previous analysis." The BIA explained that § 1253(h)(3), added by § 413(f) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, 1269 (1996), "was enacted to offset the expanded definition of aggravated felony [also enacted by the AEDPA] by giving the Attorney General discretionary authority to override the categorical bar that designated every aggravated felony as a particularly serious crime"; § 1253(h)(3) "did not make any significant changes in [the BIA's] interpretation of when a crime that is not an aggravated felony constitutes a particularly serious crime." Post-AEDPA, the BIA's jurisprudence evolved to address "which aggravated felonies are ...

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