                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 25 2011

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




                            FOR THE NINTH CIRCUIT



HAZRAT NAUMAN AFZAL,                              No. 09-72391

              Petitioner,                         Agency No. A038-951-205

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                      Argued and Submitted October 13, 2011
                            San Francisco, California

Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Hazrat Afzal, a native and citizen of Pakistan, petitions for review of a

Board of Immigration Appeals (“BIA”) decision finding that he was convicted of a

particularly serious crime and was therefore ineligible for withholding of removal

under 8 U.S.C. § 1231(b)(3)(B)(ii), and denying deferral of removal under the

Convention Against Torture (“CAT”). We have jurisdiction to review legal or


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
constitutional claims, including whether the BIA “failed to consider the appropriate

factors or relied on improper evidence in making the ‘particularly serious crime’

determination.” Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (internal

citations omitted); see also 8 U.S.C. § 1252(a)(2)(D). We have jurisdiction

pursuant to 8 U.S.C. § 1252(a) to review the denial of CAT deferral, and we

review for substantial evidence. See Delgado v. Holder, 648 F.3d 1095, 1108 (9th

Cir. 2011) (en banc).

      We have held that “in considering whether the BIA has applied the correct

legal standard for determining whether a particularly serious crime has been

committed, we must refer to the Frentescu factors as subsequently modified by the

BIA.” Anaya-Ortiz, 594 F.3d at 679. In re Frentescu, 18 I. & N. Dec. 244 (BIA

1982), “requires consideration of certain factors: ‘the nature of the conviction, the

circumstances and underlying facts of the conviction, the type of sentence

imposed, and, most importantly, whether the type and circumstances of the crime

indicate that the alien will be a danger to the community.’” Delgado, 648 F.3d at

1107 (quoting Frentescu, 18 I. & N. Dec. at 247) (emphasis added). A finding that

an alien has committed a particularly serious crime will support the determination

of danger to the community. See id.; Anaya-Ortiz, 594 F.3d at 679.




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      Here, the BIA considered only two of the Frentescu factors in determining

that Afzal was convicted of a particularly serious crime. The BIA considered the

nature of the conviction, noting that Afzal pleaded guilty to assault with a deadly

weapon. The BIA also considered the circumstances and underlying facts of the

conviction, finding that “[a]fter being honked at by another vehicle for swerving

suddenly and cutting it off, [Afzal] brandished a stolen semiautomatic weapon and

discharged it.” The BIA noted that Afzal admitted to being under the influence of

a controlled substance at the time of the incident. In its analysis, the BIA did not

consider, or even mention, the type of sentence imposed as a result of the

conviction before concluding that Afzal was convicted of a particularly serious

crime and pretermitting his application for withholding of removal. Frentescu

requires consideration of this factor, see Delgado, 648 F.3d at 1107, and thus the

BIA erred by failing to consider the type of sentence imposed. Because the BIA

failed to apply the correct legal standard, we grant the petition for review as to the

withholding claim and remand to the BIA for proper consideration of all Frentescu

factors in determining whether Afzal is statutorily ineligible for withholding of

removal because he was convicted of a particularly serious crime.

      We deny the petition for review as to the BIA’s denial of CAT deferral. The

record evidence, including the country conditions reports, does not compel a


                                           3
finding that Afzal is more likely than not to be tortured if he is returned to

Pakistan. Therefore, the BIA decision is supported by substantial evidence. See

Delgado, 648 F.3d at 1108 (finding that the denial of CAT deferral “is supported

by substantial evidence” because the “evidence does not compel the conclusion

that [petitioner] will be tortured by the Salvadoran government”).

      The petition for review is GRANTED as to the withholding claim, and

REMANDED to the BIA for application of the correct legal standard. The

petition for review as to the denial of CAT deferral is DENIED.




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