CLIFTON, Circuit Judge:
Petitioner Jose Guadalupe Torres-Valdivias petitions for review of a Board of Immigration Appeals' ("BIA") decision upholding a final order of removal against him. In deciding this case, we consider the scope of the Attorney General's decision in Matter of Jean, 23 I. & N. Dec. 373 (Att'y Gen.2002), which established a heightened standard that aliens convicted of violent or dangerous crimes must satisfy to be granted discretionary relief from removal.
Torres-Valdivias was placed in removal proceedings, where he applied for and was denied adjustment of status under 8 U.S.C. § 1255(i). The BIA held that Torres-Valdivias's sexual battery conviction was a violent or dangerous crime and, on that basis, applied the Matter of Jean standard to guide the exercise of its discretion. In making the violent or dangerous crime determination, the BIA considered the facts underlying Torres-Valdivias's sexual battery offense as testified to by Torres-Valdivias at his removal hearing and as stated in police reports from the time of the offense. Applying the Matter of Jean standard, the BIA denied Torres-Valdivias's adjustment of status application, as a matter of discretion.
We uphold the BIA's decision not to apply the categorical approach in the context of its discretionary decisions, such as the one at issue here. We also conclude that, where the correct legal standard is applied, the ultimate determination of whether a crime was violent or dangerous under Matter of Jean is discretionary and therefore unreviewable under 8 U.S.C. § 1252(a)(2)(B). Finally, we uphold the BIA's extension of the Matter of Jean standard to adjustment of status applications under 8 U.S.C. § 1255. Accordingly, we dismiss in part and deny in part Torres-Valdivias's petition for review.
Petitioner Jose Guadalupe Torres-Valdivias, a native and citizen of Mexico, has resided in the United States since coming in illegally in 1989. He married a U.S. citizen, through whom he was granted conditional permanent resident status in 2003. That status was revoked in 2006, however, as a result of a 2001 conviction for sexual battery in violation of California Penal Code § 243.4(a). Upon revocation of his status, Torres-Valdivias was charged with being an alien illegally present in the United States and therefore removable under 8 U.S.C. § 1182(a)(6)(A)(i).
In removal proceedings in front of an Immigration Judge ("IJ"), Torres-Valdivias applied for adjustment of status under 8 U.S.C. § 1255(i). In adjudicating this application, the IJ considered the facts underlying Torres-Valdivias's sexual battery conviction, including the facts as stated in his testimony at the removal hearing and as described in the police reports from the
The IJ concluded that Torres-Valdivias's crime of sexual battery "was quite clearly violent or dangerous" and applied the heightened standard for granting discretionary relief from removal to violent or dangerous criminals established in Matter of Jean. Under this heightened standard, the IJ concluded, as a matter of discretion, that Torres-Valdivias's adjustment of status application should be denied and therefore ordered him removed.
Torres-Valdivias appealed to the BIA. On appeal, a three-member panel of the BIA agreed with the IJ's application of the heightened Matter of Jean standard to an adjustment of status application but remanded for the IJ to further analyze whether Torres-Valdivias's offense was a violent or dangerous crime warranting application of that standard.
On remand, the IJ incorporated his prior decision by reference and provided more detailed facts and further legal analysis.
Torres-Valdivias timely petitioned this court for review of the final order of removal entered against him.
The Immigration and Nationality Act ("INA") bars this court from exercising
Torres-Valdivias's petition for review raises various issues framed as questions of law, namely: (1) whether the BIA erred in not applying the categorical approach in determining whether Torres-Valdivias's crime was violent or dangerous for purposes of applying Matter of Jean; (2) whether the BIA committed an error of law when it determined that Torres-Valdivias's crime was violent or dangerous; and (3) whether Matter of Jean is applicable in the context of an adjustment of status application under 8 U.S.C. § 1255(i).
The heightened standard of Matter of Jean applies by its own terms only to aliens convicted of violent or dangerous crimes. 23 I. & N. Dec. at 383; see also Matter of K-A-, 23 I. & N. Dec. 661, 666 (BIA 2004). Torres-Valdivias argues that the BIA erred by failing to apply the categorical approach in determining whether his conviction for sexual battery triggered the heightened Matter of Jean standard.
We disagree. Adjustment of status under 8 U.S.C. § 1255 is a discretionary form of relief. See, e.g., 8 U.S.C. § 1255(i)(2) ("[T]he Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence...." (emphasis added)). In the context of the BIA's discretionary decisions, we have noted that "it is proper [for the BIA] to look to probative evidence outside the record of conviction in inquiring as to the circumstances surrounding the commission of [a] crime in order to determine whether a favorable exercise of discretion is warranted." Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir.2004) (second alteration in original) (quoting Matter of Mendez-Moralez, 21 I. & N. Dec. 296, 303 n. 1 (BIA 1996)). Indeed, in Matter of Jean itself, the Attorney General looked at the facts underlying Jean's conviction, including those found in a medical examiner's report — and therefore outside the records of conviction — to conclude that she was a violent or dangerous individual who should not be granted the form of discretionary relief she had applied for. See 23 I. & N. Dec. at 375, 383.
It is not surprising that both our precedent and the Attorney General's decision in Matter of Jean counsel against the
In sum, the BIA's decision not to apply the categorical approach to guide the exercise of its discretion is consistent with our case law as well as with the Attorney General's and the BIA's precedential decisions. Accordingly, we uphold the BIA's refusal to apply the categorical approach in this case.
Torres-Valdivias next contends that the BIA committed an error of law in finding that his sexual battery offense constituted a violent or dangerous crime triggering the heightened standard of Matter of Jean. Although framed in an attempt to present a question of law, we conclude that this argument challenges the BIA's discretionary decision to view his crime as a violent or dangerous one. We therefore lack jurisdiction to decide the merits of this argument.
At its core, this argument relies on distinguishing, on its facts, Torres-Valdivias's crime from the crime involved in Matter of Jean. Whereas Torres-Valdivias accepts that manslaughter, the crime involved in Matter of Jean, constitutes a violent or dangerous crime, he denies that sexual battery rises to the same level. A fact-intensive determination in which the equities must be weighed in reaching a conclusion is a prototypical example of a discretionary decision. Torres-Valdivias's claim therefore "fall[s] well within the BIA's discretionary authority and [is] not subject to our review." Mejia v. Gonzales, 499 F.3d 991, 999 (9th Cir.2007) (citing 8 U.S.C. § 1252(a)(2)(B)(i)).
The most substantial question raised by Torres-Valdivias is whether Matter of Jean applies in the context of an adjustment of status application under 8 U.S.C. § 1255(i). Torres-Valdivias argues that it is not Matter of Jean that applies in this context, but rather Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970). We disagree, and we uphold the BIA's decision to apply
Matter of Jean involved a refugee's applications for adjustment of status under 8 U.S.C. § 1159(a) and for asylum under 8 U.S.C. § 1158. 23 I. & N. Dec. at 375-76. However, Jean was statutorily ineligible for adjustment of status due to a manslaughter conviction, which qualified as a crime involving moral turpitude rendering Jean inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Id. As a predicate to her adjustment of status application, she was therefore also applying for a waiver of inadmissibility under 8 U.S.C. § 1159(c) — the so-called § 209(c) waiver, named for the corresponding INA section. Id. at 376. The BIA, balancing the equities in the exercise of its discretion, granted her the waiver and adjustment of status. Id. at 378. The Attorney General then stepped in to reverse the BIA. Id. at 389. In doing so, the Attorney General articulated the applicable standard for guiding the BIA's exercise of discretion as follows:
Id. at 383. In addition, the Attorney General applied the same standard in denying, as a matter of discretion, Jean's application for asylum under § 1158. Id. at 385 ("For the same reasons articulated in the earlier discussion of the respondent's application for adjustment of status, I am highly disinclined to exercise my discretion — except, again, in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of relief would result in exceptional and extremely unusual hardship — on behalf of dangerous or violent felons seeking asylum.").
This standard may differ from the Matter of Arai standard that Torres-Valdivias argues the BIA should have applied. Matter of Arai, unlike Matter of Jean, involved the same kind of application involved in this case — namely, an application for adjustment of status under 8 U.S.C. § 1255. In that context, the BIA articulated the following standard:
Matter of Arai, 13 I. & N. Dec. at 496. We proceed by assuming arguendo that the standards articulated in these two cases are sufficiently different so as to potentially make a difference in Torres-Valdivias's case.
Torres-Valdivias argues that Matter of Jean does not apply to him because, unlike Jean, Torres-Valdivias is not an inadmissible alien and therefore remains statutorily eligible for adjustment of status under 8
We disagree. Torres-Valdivias fails to acknowledge that Matter of Jean applied its standard not only in deciding the § 209(c) waiver question, but also in denying asylum under § 1158 as a matter of discretion. The scope of Matter of Jean is therefore not as narrow as Torres-Valdivias argues, as it plainly applies beyond the context of waivers of inadmissibility. Of note, the Attorney General has promulgated the Matter of Jean standard in the broader context of § 212(h) waivers of inadmissibility — which, unlike § 209(c) waivers, are not limited to refugees. See Waiver of Criminal Grounds of Inadmissibility for Immigrants, 67 Fed.Reg. 78,675 (Dec. 26, 2002) (codified at 8 C.F.R. § 1212.7(d)).
Given the broad language employed by the Attorney General in Matter of Jean and its focus on his discretion, we uphold the BIA's broad reading of Matter of Jean. In Matter of Jean, the Attorney General effectively overruled the BIA's practice of granting discretionary forms of relief to aliens having been convicted of violent or dangerous crimes. Whether an alien applying for relief from removal has shaken a baby to death as in Matter of Jean or has committed sexual battery of a ten-year-old as in this case, the Attorney General has determined that these are reprehensible aliens to whom relief should be denied in all but the most extraordinary circumstances. Matter of Jean by its own terms is not limited to the waiver of inadmissibility context, as it also applied its standard to denying Jean's application for asylum as a matter of discretion. This broad reading of Matter of Jean is further supported by the BIA's published decision in Matter of K-A-, 23 I. & N. Dec. 661 (BIA 2004), which noted that "[t]he Attorney General has communicated in unequivocal terms that he is not inclined to exercise his discretion favorably with respect to aliens who have been convicted of dangerous or violent crimes except in the most exceptional circumstances." Id. at 666 (citing Matter of Jean, 23 I. & N. Dec. at 383).
We are somewhat concerned that the BIA in this case applied, for apparently the first time, the heightened Matter of Jean standard in a case that would previously have been governed by Matter of Arai without issuing a published decision and without acknowledging Matter of Arai.
Because the BIA here did not publish its decision and the outcome here is not directly controlled by Matter of Jean or by 8 C.F.R. § 1212.7(d), which address different INA provisions, we may not grant the
The precedent decision directly on point — that is, the precedent decision addressing the standard applicable in the § 1255 adjustment of status context — is, as Torres-Valdivias argues, Matter of Arai. See Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir.1994) ("This [Matter of Arai ] approach is employed in considering applications for adjustment of status...."). "Though the agency's discretion is unfettered at the outset, if it announces and follows ... a general policy by which its exercise of discretion will be governed, an irrational departure from that policy ... could constitute action that must be overturned as `arbitrary, capricious, [or] an abuse of discretion.'" INS v. Yueh-Shaio Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) (second alteration in original) (quoting 5 U.S.C. § 706(2)(A)). The arbitrary or capricious standard is rather easy for an agency to satisfy, and requires little more than a reasoned explanation.
We conclude that the BIA's decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner. Despite the BIA's failure to acknowledge Matter of Arai notwithstanding Torres-Valdivias's citations to it in his briefing to the BIA, the BIA explained why Matter of Jean is the controlling precedent. In addition, the BIA also adopted and affirmed the IJ's decision; in turn, the IJ acknowledged that Matter of Jean "substantially altered [the Matter of Arai ] approach in cases" where a violent or dangerous offense is involved. The combination of the IJ and BIA's decisions sufficiently justifies any change in the applicable standard.
We uphold the BIA's decision not to apply the categorical approach in guiding its discretion to determine whether a crime is violent or dangerous for purposes of Matter of Jean. The BIA's ultimate decision that a crime is in fact violent or dangerous is a discretionary decision, which this court lacks jurisdiction to review. Finally, the BIA did not err in extending the Matter of Jean standard to the context of adjustment of status applications under 8 U.S.C. § 1255.