                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 04 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANA BEATRIZ BIOCINI, aka Ana                     No. 08-74501
Racines Jaramillo, Ana Jaramillo de
Rivera,                                          BIA No. A091-182-333

              Petitioner,
                                                 MEMORANDUM *
  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted April 17, 2013
                            San Francisco, California

Before: NOONAN, O’SCANNLAIN and N.R. SMITH, Circuit Judges.

       Ana Beatriz Biocini, a native and citizen of Columbia, petitions for review

of a decision of the Board of Immigration Appeals that denied her application for

asylum, withholding of removal, and relief under Article 3 of the Convention

Against Torture. Biocini asserted a fear of persecution or torture on account of her


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
status as a U.S. drug informant. The BIA affirmed the immigration judge’s (IJ)

determination that Biocini’s conviction for conspiracy to distribute cocaine under

21 U.S.C. § 846 is presumptively a particularly serious crime pursuant to Matter of

Y-L-, 23 I.&N. Dec. 270 (AG 2002). We have jurisdiction to review questions of

law pursuant to 8 U.S.C. § 1252(a)(2)(D), and we grant and remand the petition in

part and dismiss the petition in part.

      The BIA erred in applying Matter of Y-L- to the drug trafficking conviction.

See Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir. 941 (9th Cir. 2007).

At the time Biocini pleaded guilty to her trafficking charge, Congress had enacted

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA). The Act provided that “Aggravated felonies for which an alien receives

a sentence of imprisonment of five years or more are particularly serious crimes

per se.” Blandino-Medina v. Holder, No. 11-72081, 2013 WL 1442508, *5 (9th

Cir. 2013) (footnote omitted). However, outside of this per se class, the agency is

required “to conduct a case-by-case analysis of convictions falling outside the

category.” Id.; see also 8 U.S.C. § 1231(b)(3)(B)(iv) (“[T]he Attorney General

[can determine] that, notwithstanding the length of sentence imposed, an alien has

been convicted of a particularly serious crime.”). As the time-line in Blandino-




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Medina shows, the BIA was required to apply a case-by-case analysis to Biocini’s

conviction. See 2013 WL 1442508, *4-5.

      Here, however, it is unclear whether the BIA applied a case-by-case analysis

to her conviction. First, the BIA cited Matter of Gonzalez, 19 I.&N. Dec. 682, 684

(BIA 1988), for the proposition that at the time Biocini pleased guilty her crime

was per se a particularly serious crime. Given the precedent at the time and the

1996 amendments, this categorical determination by the BIA was error. See

Beltran–Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990); see also Matter of L-S-, 22

I. & N. Dec. 645 (BIA 1999) (“Under Section 241(b)(3)(B)(ii) of the Immigration

and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (Supp. II 1996), a determination

whether an alien convicted of an aggravated felony and sentenced to less than 5

years’ imprisonment has been convicted of a ‘particularly serious crime,’ thus

barring the alien from withholding of removal, requires an individual examination

of the nature of the conviction, the sentence imposed, and the circumstances and

underlying facts of the conviction.’); id. at 651 (“[I]n the absence of a rule that

every conviction under a certain category of crimes constitutes a particularly

serious crime, consideration of the individual facts and circumstances is

appropriate.”). While the BIA cited to Matter of Frentescu, 18 I.&N. Dec. 244

(BIA 1982), we cannot determine whether the BIA appropriately considered all


                                           3
four of the factors. Given the BIA’s legal errors and its failure to clearly address

two of the four Frentescu factors, we remand so that the BIA can apply the

Frentescu factors such that we may conduct a meaningful review of the decision.

See Afridi v. Gonzales, 442 F.3d 1212, 1220 n.4 (9th Cir. 2006), overruled on other

grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc).

The petitioners’ remaining claims are dismissed.

      The parties shall bear their own costs on appeal.

   PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.




                                           4
                                                                               FILED
Biocini v. Holder, No. 08-74501                                                 JUN 04 2013

                                                                           MOLLY C. DWYER, CLERK
O’SCANNLAIN, Circuit Judge, dissenting in part.                              U .S. C O U R T OF APPE ALS




      While I agree with the majority that the remaining claims should be

dismissed, I would hold that the BIA adequately explained its reasons for

concluding that Biocini’s drug trafficking offense qualified as a particularly serious

crime. In its decision, the BIA cited to Matter of Frentescu, 18 I&N Dec. 244

(BIA 1982), and applied the various factors from that decision before determining

that Biocini committed a particularly serious crime. Specifically, the BIA noted

that Biocini had been convicted of a drug offense, that the offense involved

trafficking between five and fifteen kilograms of cocaine, that she received a

substantial sentence of thirty months’ imprisonment, and that drug trafficking was

“harmful to society” and an “antisocial activity . . . of a scope sufficient to trigger

the severest immigration consequences.”

      Biocini argues that the BIA failed to make a specific determination that she

was a danger to the community, but this argument misapprehends the BIA’s

decisions evaluating whether a crime qualifies as particularly serious. As the BIA

clarified in Matter of U-M-, 20 I&N Dec. 327 (BIA 1991), which was decided

before Biocini pleaded guilty to her offense and applied the Frentescu framework,

“[S]ome crimes are inherently particularly serious, requiring no further inquiry into


                                            1
the nature and circumstances of the underlying conviction. . . . [T]he crime of

trafficking in drugs is inherently a particularly serious crime.” Id. at 330 (citing

Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988)). In addition, as the BIA noted

in Matter of Carballe, 19 I&N Dec. 357 (BIA 1986), once the BIA finds that a

crime is particularly serious, there is no “statutory requirement for a separate

determination of dangerousness focusing on the likelihood of future serious

misconduct on the part of the alien.” Id. at 360.

      Thus, I would deny in part and dismiss in part Biocini’s petition for review.




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