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appealpleafelonyprobationasylumguilty plea
appealpleafelonyprobationasylumguilty plea

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Blandino-Medina v. Holder

Facts

Blandino is a Nicaraguan citizen, born in 1982. Several members of Blandino's family were affiliated with the Somoza regime, and after the Sandinistas took power, his family was persecuted. Blandino's father fled to the United States in 1986 and was later granted political asylum. In 1987, Blandino came to California to live with his father. When Blandino was ten years old, his father sent him back to Nicaragua. Shortly after returning, Blandino encountered problems with the Sandinista National Liberation Front (FSLN). Blandino was forced to build barricades and beaten for not complying with the FSLN's instructions. When he was fifteen years old, Blandino was detained by the police for three days and questioned about his parents. On December 19, 1998, Blandino entered the United States without permission and was apprehended by Border Patrol agents. The Immigration and Nationalization Service (INS) sought to remove him for entering the country illegally. Blandino applied for Temporary Protected Status (TPS), and in 1999 the INS granted that application and closed removal proceedings. Since 1999, Blandino has been convicted of three crimes. The third conviction is central to this appeal: a 2008 guilty plea to the felony of lewd and lascivious conduct with a child under the age of fourteen in violation of Section 288(a), for which Blandino was sentenced to one year in county jail, five years of felony probation, and registration as a sex offender.

Blandino is a Nicaraguan citizen, born in 1982. Several members of Blandino's family were affiliated with the Somoza regime, and after the Sandinistas took power, his family was persecuted. Blandino's father fled to the United States in 1986 and was later granted political asylum. In 1987, Blandino came to California to live with his father. When Blandino was ten years old, his father sent him back to Nicaragua. Shortly after returning, Blandino encountered problems with the Sandinista National Liberation Front (FSLN). Blandino was forced to build barricades and beaten for not complying with the FSLN's instructions. When he was fifteen years old, Blandino was detained by the police for three days and questioned about his parents. On December 19, 1998, Blandino entered the United States without permission and was apprehended by Border Patrol agents. The Immigration and Nationalization Service (INS) sought to remove him for entering the country illegally. Blandino applied for Temporary Protected Status (TPS), and in 1999 the INS granted that application and closed removal proceedings. Since 1999, Blandino has been convicted of three crimes. The third conviction is central to this appeal: a 2008 guilty plea to the felony of lewd and lascivious conduct with a child under the age of fourteen in violation of Section 288(a), for which Blandino was sentenced to one year in county jail, five years of felony probation, and registration as a sex offender.

Issue

Whether the BIA applied the proper legal standard in determining whether Blandino's crime was 'particularly serious' and whether the petition presented a live case or controversy.

Whether the BIA applied the proper legal standard in determining whether Blandino's crime was 'particularly serious' and whether the petition presented a live case or controversy.

Rule

The panel held that 8 U.S.C. 1231(b)(3)(B)(iv) unambiguously creates only one category of per se particularly serious crimes for purposes of withholding of removal, aggravated felonies for which the alien was sentenced to at least five years' imprisonment, and precludes the agency from creating additional categories of facially particular serious crimes.

The panel held that 8 U.S.C. 1231(b)(3)(B)(iv) unambiguously creates only one category of per se particularly serious crimes for purposes of withholding of removal, aggravated felonies for which the alien was sentenced to at least five years' imprisonment, and precludes the agency from creating additional categories of facially particular serious crimes.

Analysis

The court applied the traditional tools of statutory construction and concluded that 8 U.S.C. 1231(b)(3)(A) was not ambiguous. The overall structure of the Immigration and Nationality Act compelled the conclusion that 1231(b)(3)(B)(iv) establishes but one category of 'per se' particularly serious crimes, and requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress. The court found that the BIA erred in concluding that Blandino's conviction for lewd and lascivious acts with a child under the age of 14 was per se particularly serious.

The court applied the traditional tools of statutory construction and concluded that 8 U.S.C. 1231(b)(3)(A) was not ambiguous. The overall structure of the Immigration and Nationality Act compelled the conclusion that 1231(b)(3)(B)(iv) establishes but one category of 'per se' particularly serious crimes, and requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress. The court found that the BIA erred in concluding that Blandino's conviction for lewd and lascivious acts with a child under the age of 14 was per se particularly serious.

Conclusion

The petition for review of the determination that the alien committed a particularly serious crime was granted. The case was remanded with instructions to engage in a case-specific analysis in accordance with Matter of Frentescu to determine whether the alien's conviction was a particularly serious crime, rendering him statutorily ineligible for withholding of removal. The petition for review of the denial of the CAT claim was denied.

The petition for review of the determination that the alien committed a particularly serious crime was granted. The case was remanded with instructions to engage in a case-specific analysis in accordance with Matter of Frentescu to determine whether the alien's conviction was a particularly serious crime, rendering him statutorily ineligible for withholding of removal. The petition for review of the denial of the CAT claim was denied.

Who won?

The petitioner, Blandino, prevailed in part as the court granted the petition for review regarding the particularly serious crime determination, remanding the case for further analysis.

The petitioner, Blandino, prevailed in part as the court granted the petition for review regarding the particularly serious crime determination, remanding the case for further analysis.

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