Carlos Bastardo-Vale v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 17-2017 ______________ CARLOS EDUARDO BASTARDO-VALE, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of an Order of The Board of Immigration Appeals (Agency No. A206-907-703) Immigration Judge: Quynh Vu Bain ______________ Argued on May 24, 2018 before Merits Panel Argued En Banc on May 15, 2019 ______________ Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, and MATEY, Circuit Judges. (Filed: August 12, 2019) Rosa Barreca 1308 South 8th Street Philadelphia, PA 19147 Cherylle C. Corpuz [ARGUED] Morais Law 101 West Main Street Suite 101 Moorestown, NJ 08057 Counsel for Petitioner Benjamin M. Moss [ARGUED] Judith R. O’Sullivan United States Department of Justice Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044 Counsel for Respondent Joseph C. Hohenstein [ARGUED] Landau Hess Simon & Choi 190 North Independence Mall West Suite 602 Philadelphia, PA 19106 Counsel for Amicus Curiae American Immigration Lawyers Association ______________ 2 OPINION OF THE COURT ______________ SHWARTZ, Circuit Judge. Today we decide whether the phrase “particularly serious crime” as used in both the asylum and withholding of removal statutes, 8 U.S.C. §§ 1158(b)(2), 1231(b)(3), includes, but is not limited to, aggravated felonies. We hold that it does. The phrase “particularly serious crime” means the same thing in both statutes, and the language of those statutes shows that aggravated felonies are a subset of particularly serious crimes. In reaching this conclusion, we overrule Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006), where we defined the phrase “particularly serious crime” in the context of withholding of removal to include only aggravated felonies. Because we revisit this precedent and agree with the Board of Immigration Appeals’ (“BIA”) decision that Petitioner Carlos Eduardo Bastardo-Vale committed a particularly serious crime that barred him from obtaining asylum and withholding of removal relief, we will deny the petition for review. I Bastardo-Vale petitions for review of the BIA decision that his conviction for second-degree unlawful imprisonment under Delaware law constitutes a “particularly serious crime,” rendering him ineligible for both asylum and withholding of removal relief. 8 U.S.C. §§ 1158(b)(2), 1231(b)(3). His state conviction arose from a forcible sexual encounter with a 3 college freshman (“victim”). At the time of the incident, Bastardo-Vale, a native and citizen of Venezuela who entered the United States on a nonimmigrant student visa, was a graduate resident assistant at Goldey-Beacom College. In the early morning of November 10, 2013, Bastardo- Vale returned to his apartment. There, by the victim’s account, Bastardo-Vale invited her to his apartment where he forcibly pulled her into his room and began raping her, or by Bastardo- Vale’s account, they began to have consensual sex. According to the police report, the victim told Bastardo-Vale to “‘stop’ numerous times but he refused.” A.R. 2187. She “freed herself by using her knee to strike [Bastardo-Vale] in the rib cage and push him off of her body.” ...

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