- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 04-10-2013
- Case #: 11-72081
- Judge(s)/Court Below: Circuit Judge Bea for the Court; Circuit Judge Hurwitz and District Judge Sessions
- Full Text Opinion
Roberto Blandino-Medina (“Blandino”), after deportation, sought the review of two decisions made by the Board of Immigration Appeals (“BIA”). In 2008, Blandino was convicted and served a sentence for the felony of “lewd and lascivious conduct with a child under the age of fourteen in violation of Section 288(a).” In 2009, the Department of Homeland Security sought to have Blandino removed from the country. Blandino applied for asylum under the Convention Against Torture (“CAT”) because of his fear that he would be interrogated and tortured if sent back to Nicaragua. The BIA denied his plea for asylum under CAT and upheld the Immigration Judge’s determination that his conviction under Cal. Penal Code § 288(a) was a “‘particularly serious crime’ per se.” Blandino appealed both of these decisions. The Ninth Circuit held that the BIA panel was incorrect in holding that Blandino’s conviction was per se “particularly serious.” The panel determined that the Immigration and Nationality Act (“INA”) establishes a two-category approach: one category of “per se” serious crimes; and a second category that requires the BIA to do a case-by-case analysis of crimes not listed in the first category. The panel further held that a case-by-case analysis for crimes in the second category must be done in accordance with the factors established in Matter of Frentescu. The panel remanded the claim to the BIA, with instructions for them to conduct their analysis in accordance with the Frentescu factors. Additionally, the panel held that the BIA was correct to deny Blandino’s petition for asylum under CAT, on the basis that he had failed to prove that there was a “clear probability” that if he were returned to Nicaragua he would be tortured. GRANTED in part, DENIED in part, and REMANDED.