Torres-Valdivias v. Holder

When reviewing the criminal history of an alien in an application for an adjustment of status, the Board of Immigration Appeals has the discretion to consider the facts of a prior crime, or to follow a categorical standard, which only uses the statutory definition of the crime and not any surrounding facts.

Guadalupe Torres-Valdivias came to the United States illegally in 1989. Torres-Valdivias was granted conditional permanent resident status in 2003 after he married a United States citizen. His citizenship was revoked in 2006 and Torres-Valdivias was subject to removal due to a conviction in 2001 of sexual battery. The Board of Immigration Appeals (“BIA”) used the standard laid out in Matter of Jean, which applies a higher standard of review when granting relief to aliens “convicted of violent or dangerous crimes.” Instead of using the Matter of Jean standard, the BIA could have used a categorical standard, which would only use the statutory definition of the crime and not any surrounding facts regarding the crime. The Ninth Circuit held that Congress intentionally gave the BIA the discretion to consider facts, in addition to the statutory definition, to determine if the prior crime was violent or dangerous. Therefore, the BIA’s discretion was not reviewable and Torres-Valdivias was subject to removal. The panel agreed that the Matter of Jean standard was correctly applied to an application for a change in status and the BIA did not deviate in an “arbitrary or capricious manner when applying the standard.” PETITION FOR REVIEW DISMISSED in part and DENIED in part.