Perez-Palafox v. Holder

When determining whether a crime is a “serious crime” for removability, the Board of Immigration Appeals can rely on the Matter of Frentescu test to determine seriousness without going beyond the record.

Javier Perez-Palafox appeals the denial of a grant of withholding of removal. Perez-Palafox entered the United States when he was six years old and became a lawful permanent resident (LPR) in 1990 at age twenty-two. In that same year Perez-Palafox was found guilty of Possession for Sale of a Controlled Substance, Cal. H&S Code § 11351, a felony. In 2001, the Immigration and Naturalization Service (“INS”) sent Perez-Palafox a Notice to Appear, alleging that his felony conviction made him removable under 8 U.S.C. § 1227(a)(2)(A)(iii), to which he was tried in abstencia and found removable. Perez-Palafox successfully appealed the decision and an Immigration Judge (“IJ”) found that Perez-Palafox had suffered a debilitating head-injury in 2000 and the government dropped their case, thus granting a withholding of removal. In 2006, Perez-Palafox pled guilty to Sale/Transportation of a Controlled Substance, Cal. H&S Code § 11379(a) and was sentenced to three years in prison. The government then petitioned to reopen their removal case against Perez-Palafox. The IJ initially found that Perez-Palafox's conviction was not a “serious crime,” and it therefore would not impact the grant of withholding from removal. After two appeals and remands, the Board of Immigration Appeals (“BIA”) vacated the judgment of the IJ, and ordered Perez-Palafox's removal to Mexico. The Ninth Circuit reviewed the decision by the BIA for questions of law as opposed to findings of fact. The BIA must use facts determined by the IJ. Perez-Palafox argued that the BIA impermissibly used facts beyond the record, including a police report. The panel held that the BIA did not engage in impermissible fact-finding, and correctly used factors from Matter of Frentescu in determining whether Perez-Palafox's 2006 conviction constituted a “serious crime” and thus removable. PETITION DENIED.