                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

DIEGO MIGUEL-MIGUEL,                 
             Petitioner-Appellant,         No. 05-15900
               v.
                                            D.C. No.
                                         CV-04-00759-JWS
ALBERTO R. GONZALES, Attorney
General,                                    OPINION
            Respondent-Appellee.
                                     
       Appeal from the United States District Court
                for the District of Arizona
       John W. Sedwick, District Judge, Presiding

                   Argued and Submitted
         July 13, 2007—San Francisco, California

                  Filed August 29, 2007

     Before: Procter Hug, Jr., Pamela Ann Rymer and
           Raymond C. Fisher, Circuit Judges.

                 Opinion by Judge Fisher




                          10847
10850            MIGUEL-MIGUEL v. GONZALES


                         COUNSEL

Robert B. Jobe (argued) and Fatma Marouf, San Francisco,
California, for the petitioner-appellant.

Daniel G. Knauss, John Boyle and Cynthia M. Parsons
(argued), Phoenix, Arizona, for the respondent-appellee.


                         OPINION

FISHER, Circuit Judge:

   This case presents the question of whether the Attorney
General may through an adjudicative decision create a strong
presumption that a drug trafficking offense resulting in a sen-
tence of less than five years is a “particularly serious crime”
under 8 U.S.C. § 1231(b)(3)(B). Diego Miguel-Miguel, a
native of Guatemala, petitioned for withholding of removal
based upon his alleged fear that his life or freedom would be
threatened if he were returned to Guatemala. The Board of
Immigration Appeals (BIA) agreed, declaring Miguel eligible
for withholding of removal, but nonetheless ordered him
removed because it found that Miguel’s 1999 conviction for
selling $20 of cocaine was a particularly serious crime. In so
                        MIGUEL-MIGUEL v. GONZALES                         10851
finding, the BIA followed the presumption set forth in the
Attorney General’s opinion in Matter of Y-L-, 23 I. & N. Dec.
270 (Op. Att’y Gen. 2002), disapproved of on other grounds
by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003), even
though Matter of Y-L- was issued after Miguel had pled guilty
to his 1999 offense. We hold that the Attorney General did
have the authority to create his presumptive standard in Y-L-,
but that the BIA erred by applying it retroactively to Miguel’s
case.

                             BACKGROUND

   Miguel was born in Guatemala and belongs to the indige-
nous Cakchiquel group. During the chaos of the country’s
civil war, Miguel’s family was harassed by a guerilla group
that believed that Miguel and his family supported the gov-
ernment. The guerillas initially demanded just money, but
later threatened to kill Miguel if he did not join them. The
guerillas took Miguel to the mountains, where they held him
captive and forced him to serve as a lookout. During this time,
Miguel witnessed the guerillas kill several people, and in one
instance was forced to participate. Miguel says that he was
afraid that if he did not assist the guerillas, they would kill
him. After six months in captivity, Miguel was able to escape
across the border into Mexico. He made his way to the United
States, where he eventually applied for and was granted asy-
lum in 1988.

  In 1998, Miguel was charged in a California court for sell-
ing or transporting cocaine under California Health and Safety
Code § 11352.1 The facts of the offense are undisputed. While
  1
   Section 11352 provides in relevant part:
      [E]very person who . . . sells . . . or offers to . . . sell [cocaine],
      unless upon the written prescription of a physician, dentist, podi-
      atrist, or veterinarian licensed to practice in this state, shall be
      punished by imprisonment in the state prison for three, four, or
      five years.
10852                MIGUEL-MIGUEL v. GONZALES
he was standing on the street with a group of men, an under-
cover agent approached Miguel and asked him for drugs.
Miguel fetched .26 grams of rock cocaine from his associates
and sold it to the agent for $20. Miguel pled guilty to the
charges and received a sentence of time served (36 days), a
fine of $200 and five years probation.

   The Immigration & Naturalization Service (INS) placed
Miguel in removal proceedings — triggering a series of hear-
ings and appeals as the legal standards applied to Miguel’s
case evolved over the course of the proceedings. At the outset,
Miguel admitted the allegations in the Notice to Appear and
applied for withholding of removal. In October 1999, an
Immigration Judge (IJ) found that Miguel’s cocaine convic-
tion did not preclude withholding of removal because the con-
viction was not for a “particularly serious crime” under 8
U.S.C. § 1231(b)(3)(B), as that term had been defined by the
BIA in Matter of S-S-, 22 I. & N. Dec. 458, 463-65 (BIA
1999) (en banc). The IJ nonetheless denied withholding of
removal because, although Miguel had suffered past persecu-
tion, he had failed to provide documentary evidence that he
continued to have a well-founded fear of future persecution.
The BIA vacated the decision and remanded, however, since
a new INS regulation had changed the standard for evaluating
changed circumstances.

   On remand the IJ in August 2001, again held that changed
circumstances precluded withholding of removal. On appeal,
the BIA held that the IJ had again applied the wrong standard
governing changed circumstances. Applying the proper stan-
dard, the Board in March 2003 found that Miguel had demon-

  Miguel was also convicted in 1998 of a drug possession offense under
California Health & Safety Code § 11350(a). That offense, however, is not
before us because Miguel’s removal order is predicated only on his
cocaine sale conviction. See Lavira v. Attorney Gen. of United States, 478
F.3d 158, 162 (3d Cir. 2007).
                    MIGUEL-MIGUEL v. GONZALES                     10853
strated that his life or freedom would be threatened if he
returned to Guatemala. Thus, Miguel was eligible for with-
holding of removal. Meanwhile, however, the government
had moved to remand the case to the IJ because on March 5,
2002, while Miguel’s appeal was pending, the Attorney Gen-
eral had issued his opinion in Matter of Y-L-. That opinion
substantially altered the standard for determining whether a
drug trafficking offense is “particularly serious” under
§ 1231(b)(3)(B). The BIA granted the motion to remand,
sending the case back to the IJ to reconsider his prior determi-
nation that Miguel had not committed a particularly serious
crime.

   Applying the new standard, the IJ found that Miguel had
indeed committed a particularly serious crime. The judge
found that Miguel had failed to prove that his involvement in
the cocaine transaction was “peripheral,” and thus under Mat-
ter of Y-L-, Miguel’s cocaine trafficking conviction was
deemed particularly serious. The BIA affirmed without opin-
ion.2

   Miguel’s habeas corpus petition filed in the United States
District Court for the District of Arizona was denied. He then
filed a timely appeal in this court. However, on May 11, 2005,
the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, went
into effect, transforming Miguel’s habeas appeal into a timely
petition for review. See Alvarez-Barajas v. Gonzales, 418
F.3d 1050, 1053 (9th Cir. 2005).

                         JURISDICTION

   Before we reach the merits of Miguel’s arguments, we must
address the government’s contention that we lack jurisdiction
to do so. First, it argues that Miguel is a criminal alien under
  2
   Because it is not before us, we take no position on whether the BIA’s
agreement with the IJ that Miguel’s involvement in the underlying offense
was not peripheral was correct.
10854             MIGUEL-MIGUEL v. GONZALES
8 U.S.C. § 1182(a)(2) and the BIA’s determination that he
committed a particularly serious crime under § 1231(b)(3)(B)
is an unreviewable exercise of discretion. See 8 U.S.C.
§ 1252(a)(2)(B) & (C). Our jurisdiction is not foreclosed,
however, insofar as Miguel’s petition for review raises issues
of law. See 8 U.S.C. § 1252(a)(2)(D). We hold that Miguel
has done just that.

   Miguel does not challenge the BIA’s conclusion that his
offense was particularly serious under Matter of Y-L-, but
instead argues that the Attorney General lacked the authority
to issue Matter of Y-L-, or that Y-L- is invalid as applied to
this case. These are pure questions of law and therefore we
have jurisdiction to review them. See Afridi v. Gonzales, 442
F.3d 1212, 1218 (9th Cir. 2006) (“While we cannot reweigh
evidence to determine if the crime was indeed particularly
serious, we can determine whether the BIA applied the correct
legal standard in making its determination.”).

   Second, the government argues that we lack jurisdiction
because Miguel did not exhaust his argument that the BIA
erred in failing to heed Beltran-Zavala v. INS, 912 F.2d 1027
(9th Cir. 1990) (per curiam), which prohibits the BIA from
holding that a particular crime is per se particularly serious
under § 1231(b)(3)(B). See 8 U.S.C. § 1252(d)(1); Barron v.
Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). But Miguel did
raise this argument during his penultimate trip to the BIA,
when he argued that no remand to the IJ was necessary
because Y-L- conflicted with Beltran-Zavala. The BIA implic-
itly rejected this argument in its March 2003 decision, holding
that the case should be remanded for the IJ to make findings
under Y-L-. Although Miguel did not re-raise the argument on
remand to the IJ, or in his final appeal to the BIA, there is no
requirement that immigration petitioners exhaust an argument
before the BIA more than once, particularly where as here the
BIA has already rejected the argument. See Ladha v. INS, 215
F.3d 889, 903 (9th Cir. 2000) (holding that exhaustion is sat-
isfied where the BIA “had a full opportunity to resolve [the]
                  MIGUEL-MIGUEL v. GONZALES               10855
controversy or correct its own errors before judicial interven-
tion” (citation and quotation marks omitted, alteration in orig-
inal)).

  Accordingly, we turn to the merits of Miguel’s appeal.

                        DISCUSSION

                               I

   Miguel makes a facial challenge to Matter of Y-L-, relying
upon two premises. First, he asserts that Matter of Y-L- cre-
ated what amounts to a per se rule that turns all drug traffick-
ing offenses into particularly serious crimes under § 1231(b).
Second, he contends that the Attorney General was forbidden
from promulgating such a per se rule by Ninth Circuit law, the
statute’s plain text, the Administrative Procedure Act (APA)
and the Constitution. We reject Miguel’s first premise
because Y-L- on its face purports to create only a strong pre-
sumption, not a per se rule. We thus need not decide whether
the Attorney General can create per se rules under § 1231(b).
Instead, we hold only that the Attorney General did not
exceed his powers by creating the strong presumption set
forth in Y-L-.

                               A

   Consistent with the United States’ treaty obligations under
the United Nations Protocol Relating to the Status of Refu-
gees, 19 U.S.T. 6223 (1968), Congress has provided that an
alien may not be removed to a nation in which his or her life
or freedom would be threatened on a protected ground unless
“the Attorney General decides that . . . the alien, having been
convicted by a final judgment of a particularly serious crime
is a danger to the community.” 8 U.S.C. § 1231(b)(3)(B)(ii).
The degree to which Congress has defined “particularly seri-
ous crime,” rather than leaving it for the Attorney General to
define, has changed over time.
10856             MIGUEL-MIGUEL v. GONZALES
   Before 1990, the Immigration and Nationality Act (INA)
did not define the term at all. See 8 U.S.C. § 1253(h)(2)(B)
(1990). Rather, the definition of the term was developed by
the BIA through adjudication. In Matter of Frentescu, 18 I. &
N. Dec. 244 (BIA 1982), the BIA articulated a multi-factor
test for determining whether a particular crime was particu-
larly serious. The factors included “the nature of the convic-
tion, 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.” Id. at 244. We approved
of the Frentescu factors in Mahini v. INS, 779 F.2d 1419 (9th
Cir. 1986), holding that the Board had properly concluded
that an alien convicted of heroin trafficking who received a
sentence of 13 months imprisonment had committed a partic-
ularly serious crime. Id. at 1421. We reaffirmed and extended
Mahini in 1990 in Beltran-Zavala, holding that the applica-
tion of Frentescu’s case-by-case analysis was mandatory and
that the BIA could not erect classes of crimes that were partic-
ularly serious per se. See Beltran-Zavala, 912 F.2d at 1031-
32.

   That same year, however, Congress amended the INA to
provide that all aggravated felonies were particularly serious
crimes. See Immigration Act of 1990, Pub. L. 101-649, § 515,
104 Stat. 4978, 5053 (Nov. 29, 1990); 8 U.S.C. § 1253(h)
(1991). This amendment overruled Frentescu and Beltran-
Zavala by precluding case-by-case analysis for any aggra-
vated felony. Then, in 1996, Congress again amended the
INA’s definition of particularly serious crime. Congress elim-
inated the categorical rule, replacing it with a presumption
that aggravated felonies are particularly serious. The pre-
sumption could be rebutted if the Attorney General deter-
mined it “necessary to ensure compliance with the 1976
United Nations Protocol Relating to the Status of Refugees.”
See Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, § 413(f), 110 Stat. 1214, 1269 (Apr. 24,
1996); 8 U.S.C. § 1253(h)(3)(B) (1996).
                      MIGUEL-MIGUEL v. GONZALES                      10857
   Just a few months later, however, Congress yet again
amended the statute. Those amendments, which remain in
effect today, eliminated the presumption and replaced it with
a two-tiered approach. First, Congress made aggravated felo-
nies for which the alien receives a sentence of imprisonment
of five years or more particularly serious per se. See Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Pub. L. 104-208, div. C, sec. 305, § 241, 110
Stat. 3009, 3009-602 (Sept. 30, 1996); 8 U.S.C.
§ 1231(b)(3)(B) (1997).3 Second, however, the statute specifi-
cally provides that the creation of this class of per se particu-
larly serious crimes “shall not preclude the Attorney General
from determining that, notwithstanding the length of sentence
imposed, an alien has been convicted of a particularly serious
crime.” Id. In two en banc decisions, the BIA held that
IIRIRA revived the Frentescu mode of case-by-case analysis
for aggravated felony convictions resulting in sentences less
than five years. See Matter of L-S, 22 I. & N. Dec. 645, 649
(BIA 1999) (en banc); Matter of S-S-, 22 I. & N. Dec. at 463-
65. We agreed with that conclusion in Afridi v. Gonzales, 442
F.3d 1212, 1220-21 & n.4 (9th Cir. 2006). Afridi, however,
involved a sexual abuse offense, and thus did not consider the
validity of Matter of Y-L-.
  3
     The current text provides that an alien may be deported, notwithstand-
ing a threat to his life or freedom, if “the Attorney General decides that
. . . the alien, having been convicted by a final judgment of a particularly
serious crime is a danger to the community of the United States.” 8 U.S.C.
§ 1231(b)(3)(B)(ii) (2007). The statute further provides:
      For purposes of clause (ii), an alien who has been convicted of
      an aggravated felony (or felonies) for which the alien has been
      sentenced to an aggregate term of imprisonment of at least 5
      years shall be considered to have committed a particularly serious
      crime. The previous sentence shall not preclude the Attorney
      General from determining that, notwithstanding the length of sen-
      tence imposed, an alien has been convicted of a particularly seri-
      ous crime.
8 U.S.C. § 1213(b)(3)(B) (2007).
10858             MIGUEL-MIGUEL v. GONZALES
   [1] The Attorney General’s 2002 opinion in Y-L- instructs
the BIA to treat all drug trafficking offenses presumptively as
“particularly serious crimes.” This presumption can be rebut-
ted only in the “extraordinary,” “extenuating” and “compel-
ling” case where a petitioner can demonstrate “at a
minimum”:

    (1)   a very small quantity of controlled substance;

    (2) a very modest amount of money paid for the
    drugs in the offending transaction;

    (3) merely peripheral involvement by the alien in
    the criminal activity, transaction, or conspiracy;

    (4) the absence of any violence or threat of vio-
    lence, implicit or otherwise, associated with the
    offense;

    (5) the absence of any organized crime or terrorist
    organization involvement, direct or indirect, in rela-
    tion to the offending activity; and

    (6) the absence of any adverse or harmful effect of
    the activity or transaction on juveniles.

Matter of Y-L-, 23 I. & N. Dec. at 274, 276-77 (emphasis in
original). In addition, “[o]nly if all of these criteria were dem-
onstrated by an alien would it be appropriate to consider
whether other, more unusual circumstances . . . might justify
departure from” the presumption. Id. at 277 (emphasis in orig-
inal). Thus Matter of Y-L- creates an extraordinarily strong
presumption that drug trafficking offenses are particularly
serious crimes. It therefore purports to overrule Matter of
L-S-, Matter of S-S- and Frentescu in part by precluding
application of the Frentescu factors in most drug trafficking
cases.
                  MIGUEL-MIGUEL v. GONZALES                10859
   [2] The Attorney General in Y-L- purported not to be creat-
ing a per se rule. See Matter of Y-L-, 23 I. & N. Dec. at 276
(stating that “I do not consider it necessary . . . to exclude
entirely the possibility of the very rare case where an alien
may be able to demonstrate extraordinary and compelling cir-
cumstances that justify treating a particular drug trafficking
crime as falling short of” being a particularly serious crime).
Presumably Y-L- will be interpreted consistent with this state-
ment and there will be some cases in which its exception
applies. See, e.g., Lavira, 478 F.3d at 165 (stating that the
petitioner appeared to be “squarely within the exception
carved out by” Y-L-). Thus, Y-L- creates a strong presumption,
not a per se rule.

                                B

   [3] Neither our precedent nor the text of § 1231(b)(3) pre-
cluded the Attorney General from issuing Matter of Y-L-. In
Beltran-Zavala, we made application of the Frentescu factors
mandatory for two reasons. First, the BIA had consistently
applied Frentescu and thus was bound by its own precedent
to continue applying that analytical framework. See Beltran-
Zavala, 912 F.2d at 1032. This reasoning does not apply here
because the Attorney General may overrule the BIA by issu-
ing a published opinion. See 8 C.F.R. § 103.37(g); 8 C.F.R.
§ 1003.1(g); BIA Practice Manual § 1.4(g) (2004).

   Second, Beltran-Zavala held that the structure of the statute
precluded creation of per se particularly serious crimes
because “[i]f Congress wanted to erect per se classifications
of crimes precluding immigration and nationality benefits, it
knew how to do so.” 912 F.2d at 1032 (citations omitted).
This reasoning is no longer directly applicable because the
text and structure of the statute have changed. The statute now
does include a class of per se particularly serious crimes:
those aggravated felonies for which aliens have received sen-
tences of five years or more. 8 U.S.C. § 1231(b)(3)(B). Nor
is the statute silent with regard to other crimes: it specifically
10860             MIGUEL-MIGUEL v. GONZALES
grants the Attorney General the authority to “determin[e] that
. . . an alien has been convicted of a particularly serious
crime.” Id. In Y-L- the Attorney General interpreted this pro-
vision to permit the creation of a strong presumption that drug
trafficking offenses are particularly serious. See Matter of Y-
L-, 23 I. & N. Dec. at 274, 276. We are to afford the Attorney
General’s interpretation deference under Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).
We must therefore ask whether the statute is “silent or ambig-
uous” with respect to the Attorney General’s authority to
create strong presumptions of the sort set forth in Y-L-. Id.
(citation omitted). If it is, we must then ask whether the Attor-
ney General’s interpretation “is based on a permissible con-
struction of the statute.” Id. (citation omitted).

   Miguel argues that the plain text of the statute requires a
Frentescu case-by-case analysis because it allows removal
based on prior criminal conduct only where the Attorney Gen-
eral “determin[es] that . . . an alien has been convicted of a
particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B) (empha-
sis added). Miguel interprets the reference to “an alien” rather
than “a crime” to limit the scope of the Attorney General’s
discretion to making determinations with regard to particular
aliens on a case-by-case basis, not to designating per se
crimes. This argument is misplaced because Matter of Y-L-
does not purport to create a per se rule; and the statute’s text
does not plainly foreclose the Attorney General’s creation of
strong presumptions. Miguel’s interpretation of the statute,
though plausible, is not the only permissible construction. The
sentence immediately preceding the sentence Miguel relies
upon also refers to “an alien” even though that sentence
undisputedly establishes a per se class of particularly serious
crimes. See 8 U.S.C. § 1231(b)(3)(B) (providing that “an
alien who has been convicted of an aggravated felony (or fel-
onies) for which the alien has been sentenced to an aggregate
term of imprisonment of at least 5 years shall be considered
to have committed a particularly serious crime” (emphasis
                    MIGUEL-MIGUEL v. GONZALES                     10861
added)). It is not clear that Congress would refer to “an alien”
in one sentence to describe a per se rule that permits no case-
by-case analysis but in the next sentence use “an alien” in
order to specifically preclude the creation of a strong pre-
sumption that merely restricts the scope of case-by-case anal-
ysis. Thus § 1231(b)(3)(B) is ambiguous as to whether
Congress meant to limit the Attorney General’s ability to
create strong presumptions.

   [4] Because the statute’s text is not plain in either preclud-
ing or permitting the Attorney General to create strong pre-
sumptions, we must ask whether the Attorney General’s
interpretation is impermissible. See Aguirre-Aguirre, 526 U.S.
at 424. It is not. As explained above, the statutory text itself
can plausibly be understood as providing the Attorney Gen-
eral discretion to create strong presumptions. See Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (en
banc) (holding that at Chevron step two, the court asks
“whether the agency’s interpretation reflects a plausible read-
ing of the statutory text”). The legislative history also sup-
ports the Attorney General’s interpretation, as it states that
“the Attorney General retains the authority to determine other
circumstances in which an alien has been convicted of a par-
ticularly serious crime.” H.R. Conf. Rep. No. 104-828, at 216
(1996) (emphasis added).

   [5] Miguel contends that the Attorney General’s interpreta-
tion is impermissible because it conflicts with the United
Nations High Commissioner for Refugees Handbook on Pro-
cedures and Criteria for Determining Refugee Status (Geneva
1992) (“UNHCR Handbook”). The Handbook states that refu-
gees may be returned to countries in which they face persecu-
tion only in “extreme cases,” and suggests that a “serious”
crime must be “a capital crime or a very grave punishable
act.” UNHCR Handbook, supra, at ¶ 154-55.4 Admittedly, the
  4
    The Handbook does not directly define particularly serious crime, but
does comment on the meaning of “serious” in the context of defining the
term “serious non-political crime” in Article 1F(b) of the 1951 United
Nations Convention Relating to the Status of Refugees. See Frentescu, 18
I. & N. Dec. at 245-47.
10862                MIGUEL-MIGUEL v. GONZALES
creation of a strong presumption that all drug trafficking
offenses — even relatively minor ones — are particularly
serious is in tension with the Handbook’s definition. We view
the UNHCR Handbook as “persuasive authority in interpret-
ing the scope of refugee status under domestic asylum law.”
Ndom v. Ashcroft, 384 F.3d 743, 753 n.4 (9th Cir. 2004); see
also INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987)
(“[T]he Handbook provides significant guidance in construing
the Protocol, to which Congress sought to conform.”). But the
Handbook “is not binding on the Attorney General, the BIA,
or United States courts.” Aguirre-Aguirre, 526 U.S. at 427. If
the Attorney General’s interpretation is permissible in light of
the statute’s text, structure and purpose, we must defer under
Chevron to the Attorney General’s interpretation even if it is
in tension with the UNHCR Handbook. See id.

   [6] We hold that the Attorney General’s construction of
§ 1231(b)(3)(B) as providing him with discretion to create a
strong presumption that drug trafficking offenses are particu-
larly serious crimes is not impermissible. Under Chevron, we
therefore defer to that construction. Accordingly, after Matter
of Y-L-, a Frentescu analysis is no longer required with regard
to drug trafficking offenses.5

                                    C

   [7] Miguel next argues that even if the Attorney General’s
interpretation is permissible in light of the statutory text, it
  5
    Insofar as Miguel also argues that Matter of Y-L-’s ultimate conclusion
— that most drug trafficking offenses are particularly serious — is imper-
missible, we reject that argument. The Attorney General justified the Y-L-
presumption based upon the BIA’s prior treatment of drug trafficking
offenses as “inherently . . . particularly serious,” Congress’ imposition of
harsh punishment for such offenses and the threats to public safety posed
by drug use and the illegal drug trade. See 23 I. & N. Dec. at 274-76 (quot-
ing Matter of U-M-, 20 I. & M. Dec. 327, 330-31 (BIA 1991)). The Attor-
ney General’s choice to so exercise his discretion was not impermissible
in light of the statute’s text, structure or purpose.
                   MIGUEL-MIGUEL v. GONZALES                10863
nonetheless violates the Fifth Amendment Due Process
Clause by creating a de facto per se rule. Miguel relies upon
Chong v. INS, 264 F.3d 378 (3d Cir. 2001), which suggested
that due process requires an “individualized determination”
with regard to whether an alien has committed a particularly
serious crime and that it would be problematic for an IJ to
“blindly follow[ ] a categorical rule, i.e. that all drug convic-
tions qualify as ‘particularly serious crimes.’ ” Id. at 387 (cita-
tion omitted); see also Matter of Y-L-, 23 I. & N. Dec. at 276
n.12 (stating that Chong “indicate[s] that the application of
‘per se’ determinations is legally questionable”). Once again,
Miguel’s challenge misses the mark, because we do not read
Matter of Y-L- as creating a per se rule. Moreover, Chong
concerned only an alien’s procedural due process right to
engage in “factfinding based on a record produced before the
Board and disclosed to her.” Chong, 264 F.3d at 386. Chong
did not hold that aliens have a substantive due process right
that precludes Congress or the Attorney General from crafting
particular legal standards in a particular manner. If such a
substantive due process right existed, it would mean that Con-
gress violated the Constitution by categorizing all aggravated
felonies as particularly serious crimes from 1990 to 1996, or
that it is violating the Constitution now by making all aggra-
vating felonies with more than a five year sentence per se par-
ticularly serious. There is no support for such a constitutional
rule.

   [8] Miguel does not claim his procedural due process rights
were violated, and even if he had we would reject that claim.
Miguel received all the process to which he was due, i.e. “a
full and fair hearing of his claims and a reasonable opportu-
nity to present evidence on his behalf.” Ladha v. INS, 215
F.3d 889, 904 (9th Cir. 2000) (citation omitted). Although
Matter of Y-L- made it much more difficult as a substantive
matter for Miguel to avoid removal, we cannot say the proce-
dures he received — which included full briefing and a hear-
ing before the IJ — were “so fundamentally unfair that [he]
10864             MIGUEL-MIGUEL v. GONZALES
was prevented from reasonably presenting his case.” Id. (cita-
tion omitted).

                               D

   [9] Miguel next argues that Matter of Y-L- sets forth an
unconstitutionally vague rule. However, constitutional vague-
ness requirements apply only to “vague statutory language” or
to “unforeseeable and retroactive judicial expansion of statu-
tory language that appears narrow and precise on its face.”
Rogers v. Tennessee, 532 U.S. 451, 457 (2001). Neither cir-
cumstance is present here. Matter of Y-L- is not a statute or
regulation, but instead an adjudicatory interpretation of statu-
tory text. Nor does Y-L- expand the statutory language. To the
contrary, Y-L- brings a measure of precision to
§ 1231(b)(3)(B)’s somewhat vague text, which Miguel does
not challenge as itself unconstitutionally vague. Miguel’s
vagueness challenge therefore fails.

                               E

    [10] Miguel also argues that Matter of Y-L- is invalid
because it is a legislative rule under the APA and therefore
the Attorney General could not issue it without first engaging
in notice-and-comment rulemaking procedures. See Hemp
Indus. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003).
The government responds that Matter of Y-L- is an interpre-
tive rule and so those procedures are not required. See id.; 5
U.S.C. § 553(b). Both sides miss the point that Matter of Y-L-
is an adjudicative decision and thus does not fit within the
legislative/interpretive framework for rulemaking. See Cent.
Tex. Tel. Co-op., Inc. v. FCC, 402 F.3d 205, 210-11 (D.C.
Cir. 2005). Generally, an agency “is not precluded from
announcing new principles in an adjudicative proceeding and
. . . the choice between rulemaking and adjudication lies in the
first instance within the [agency’s] discretion.” NLRB v. Bell
Aerospace Co., 416 U.S. 267, 294 (1974); see also Yang v.
INS, 79 F.3d 932, 936 (9th Cir. 1996). Of course, in certain
                 MIGUEL-MIGUEL v. GONZALES             10865
circumstances an agency may abuse its discretion by
announcing new rules through adjudication rather than
through rulemaking, such as when the rule operates retroac-
tively and disturbs settled expectations. See Pfaff v. U.S.
Dep’t of Hous. and Urban Dev., 88 F.3d 739, 748 (9th Cir.
1996); Patel v. INS, 638 F.2d 1199, 1203-05 (9th Cir. 1980);
Ruangswang v. INS, 591 F.2d 39, 44 (9th Cir. 1978). We con-
sider the retroactivity question next.

                             II

   Miguel argues that even if Matter of Y-L- is valid on its
face, the BIA nonetheless is barred from applying it retroac-
tively to his case by Montgomery Ward & Co., Inc. v. FTC,
691 F.2d 1322 (9th Cir. 1982). When Miguel pled guilty in
1999 to selling a small amount of cocaine for $20 and was
sentenced to time served (36 days), the immigration conse-
quences of doing so were unambiguously governed by
Frentescu. Indeed, applying that standard, the IJ found that
Miguel had not committed a particularly serious crime. It was
only later, when the Attorney General issued Matter of Y-L-
and the BIA remanded Miguel’s case for reconsideration
under that standard, that the consequences of Miguel’s prior
conduct and plea were adversely enhanced. We agree that the
BIA applied Matter of Y-L- retroactively to Miguel, and that
it was forbidden from doing so by Montgomery Ward.

   [11] In SEC v. Chenery Corp., 332 U.S. 194, 203 (1947),
the Supreme Court held that an agency may give retroactive
force to a new rule created through adjudicatory action, but
“[the] retroactivity must be balanced against the mischief of
producing a result which is contrary to a statutory design or
to legal and equitable principles.” See also Heckler v. Cmty.
Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n.12
(1984) (recognizing the principle that “an administrative
agency may not apply a new rule retroactively when to do so
would unduly intrude upon reasonable reliance interests”).
The D.C. Circuit in Retail, Wholesale and Department Store
10866             MIGUEL-MIGUEL v. GONZALES
Union, AFL-CIO v. NLRB, 466 F.2d 380 (D.C. Cir. 1972),
fleshed out this balancing test by identifying five non-
exhaustive factors for determining when an agency’s retroac-
tive application of an adjudicatory decision is invalid:

    (1) whether the particular case is one of first
    impression,

    (2) whether the new rule represents an abrupt
    departure from well established practice or merely
    attempts to fill a void in an unsettled area of law,

    (3) the extent to which the party against whom the
    new rule is applied relied on the former rule,

    (4) the degree of the burden which a retroactive
    order imposes on a party, and

    (5) the statutory interest in applying a new rule
    despite the reliance of a party on the old standard.

Id. at 390. We adopted the Retail, Wholesale factors in Mont-
gomery Ward, 691 F.2d at 1333. These factors are meant to
“balance[ ] a regulated party’s interest in being able to rely on
the terms of a rule as it is written against an agency’s interest
in retroactive application of an adjudicatory decision.” Chang
v. United States, 327 F.3d 911, 928 (9th Cir. 2003). We must
therefore apply the factors here to determine whether the BIA
erred by retroactively applying Matter of Y-L- to Miguel’s
case.

   [12] To begin, this is not a case of first impression. Before
Matter of Y-L-, both the BIA and this court had affirmed
Frentescu’s case-by-case mode of analyzing whether a partic-
ular alien had committed a particularly serious crime, includ-
ing drug trafficking offenses. See Beltran-Zavala, 912 F.2d at
1031-32; Mahini, 779 F.2d at 1421; Matter of L-S, 22 I. & N.
Dec. at 649; Matter of S-S-, 22 I. & N. Dec. at 463-65. More-
                  MIGUEL-MIGUEL v. GONZALES                10867
over, the first factor is directed towards maintaining an incen-
tive for litigants to raise novel claims by allowing a litigant
who successfully argues for a new rule to get the benefit of
that rule. See Retail, Wholesale, 466 F.2d at 390. It also
ensures that agencies do not issue advisory opinions. See id.
Neither of these concerns is in play here because the Attorney
General did not announce its new rule in this case; instead the
BIA seeks to apply the new rule announced in Y-L- to an
unrelated proceeding. The first factor thus favors Miguel. See
id. at 391 (stating that retroactivity is disfavored “where the
[agency] ha[s] confronted the problem before, ha[s] estab-
lished an explicit standard of conduct, and now attempts to
punish conformity to that standard under a new standard sub-
sequently adopted”).

   [13] The second factor also favors Miguel. That factor “re-
quires the court to gauge the unexpectedness of a rule and the
extent to which the new principle serves the important but
workaday function of filling in the interstices of the law.”
Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d
1074, 1082 (D.C. Cir. 1987) (en banc). “It implicitly recog-
nizes that the longer and more consistently an agency has fol-
lowed one view of the law, the more likely it is that private
parties have reasonably relied to their detriment on that view.”
Id. at 1082-83. Before Matter of Y-L-, aliens convicted of
drug trafficking offenses resulting in sentences of less than
five years could expect that the BIA would make a particu-
larly serious crime determination based on the individual cir-
cumstances of their cases. After Y-L-, aliens in the same
position can expect that any drug trafficking conviction will
almost certainly result in removal. The significance of the dif-
ference in standards before and after Y-L- is illustrated by this
case, in which the IJ concluded under Frentescu that Miguel
had not committed a particularly serious crime but reached
exactly the opposite conclusion when applying Y-L-. Cf.
Chang, 327 F.3d at 928 (relying on inconsistent determina-
tions with regard to the alien plaintiffs before and after the
10868            MIGUEL-MIGUEL v. GONZALES
new rule was announced to conclude that the rule change was
an “abrupt departure”).

   [14] The third factor also favors Miguel. “There can be lit-
tle doubt that, as a general matter, alien defendants consider-
ing whether to enter into a plea agreement are acutely aware
of the immigration consequences of their convictions.” INS v.
St. Cyr, 533 U.S. 289, 322 (2001). When Miguel pled guilty
in 1999 he had a realistic chance that the BIA, applying
Frentescu, would find that the crime was not particularly seri-
ous and the IJ did so find. The application of Y-L- changes the
game entirely. Given the exceedingly strong presumption con-
tained in Y-L- and the strong likelihood that the BIA would
not deem Miguel’s participation “peripheral,” Y-L- made it a
near (if not total) certainty that Miguel’s decision to plead
guilty would result in his removal. See id. at 325 (“There is
a clear difference, for the purposes of retroactivity analysis,
between facing possible deportation and facing certain depor-
tation.”); see also Kankamalage v. INS, 335 F.3d 858, 862-63
(9th Cir. 2003).

   [15] The fourth factor strongly favors Miguel. We have
previously held that deportation alone is a substantial burden
that weighs against retroactive application of an agency adju-
dication. See Ruangswang, 591 F.2d at 44. Here the burden is
much greater. Miguel testified that his life would be threat-
ened if he returned to Guatemala. The BIA agreed that Miguel
faced future persecution. Although these threats may have
lessened with the passage of time, we nonetheless conclude
that the seriousness of the harms that could befall Miguel if
he were removed to Guatemala weigh strongly against retro-
active application of Y-L- to his case.

   [16] Only the final factor favors the government. By
amending section § 1231(b)(3)(B), Congress gave the Attor-
ney General substantial discretion with regard to particularly
serious crime determinations. In Y-L-, the Attorney General
singled out narcotics trafficking as particularly serious, both
                     MIGUEL-MIGUEL v. GONZALES                     10869
in the interest of public safety and in bringing uniformity to
the law. See Matter of Y-L-, 23 I. & N. Dec. at 273 (stating
that Frentescu regime “has led to results that are both incon-
sistent and . . . illogical”). But these interests are substantially
served by prospective application of Matter of Y-L-. Forbid-
ding the Attorney General from applying Y-L- retroactively in
this case therefore does not severely limit his efforts to pursue
the statutory mandate.

    [17] Accordingly, because the Montgomery Ward analysis
tilts decidedly in Miguel’s favor, we hold that retroactive
application of the Matter of Y-L- test to his case was impermissi-
ble.6

                          CONCLUSION

  For the foregoing reasons, we grant the petition for review
and remand to the BIA for further proceedings.

  PETITION GRANTED; REMANDED.




  6
    The government contends that even if the BIA erred by applying Y-L-
retroactively, we need not remand because the BIA held that Miguel failed
to demonstrate future persecution justifying withholding of removal. This
flatly misrepresents the record: the BIA specifically held that Miguel had
demonstrated past persecution and that the government failed to rebut the
presumption that he would be persecuted in the future. Thus, the Board
held, petitioner “demonstrated his eligibility for withholding of removal
under the Act,” aside from the issues involving Y-L-.
