              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0484n.06

                                         No. 09-4421

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                 Jul 14, 2011
EVER ALEXANDER HERNANDEZ-VASQUEZ,
                                                                          LEONARD GREEN, Clerk
       Petitioner,

              v.
                                                                On Petition for Review of an
ERIC H. HOLDER, JR., Attorney General,                          Order of the Board of
                                                                Immigration Appeals
       Respondent.


                                                          /

Before:       BATCHELDER, Chief Circuit Judge; GUY, and MOORE, Circuit
              Judges.

       Ralph B. Guy, Jr., Circuit Judge.           Petitioner Ever Alexander Hernandez-

Vasquez, a native and citizen of El Salvador, petitions for review of the final decision of the

Board of Immigration Appeals (BIA) affirming the Immigration Judge’s decision terminating

his asylum and finding him ineligible for cancellation of removal. The crux of the BIA’s

decision, and this appeal, was the finding that petitioner had been convicted of a “particularly

serious crime” for purposes of § 208(b)(2)(A)(ii) and (c)(2)(B) of the Immigration and

Nationality Act, 8 U.S.C. § 1158(b)(2)(A)(ii) and (c)(2)(B). Petitioner argues that the

Immigration Judge and the BIA erred by considering evidence outside the record of

conviction when there were no elements in common with the originally indicted offense.
No. 09-4421                                                                                            2

After review of the record and consideration of the arguments presented on appeal, we deny

the petition for review.

                                                   I.

        Petitioner, born August 25, 1976, entered the United States without being admitted

or paroled, and received derivative asylum based on the application of his mother on

September 14, 1989. An indictment returned in May 2004 charged petitioner with five

counts of gross sexual imposition involving sexual contact with a girl while she was between

eight and ten years of age, in violation of Ohio Rev. Code § 2907.05. Petitioner pleaded

guilty to one count of child endangerment, a third degree felony under Ohio Rev. Code §

2919.22. On June 16, 2005, at age 29, petitioner was sentenced to two years of imprisonment

and nolle prosequi was recorded as to counts 2, 3, 4, and 5 of the indictment. The conviction

was affirmed on appeal.1

        Removal proceedings initiated in March 2006 charged petitioner with inadmissibility

both as an alien present without admission or parole (8 U.S.C. § 1182(a)(6)(A)(i)), and as an

alien convicted of a “crime involving moral turpitude” (CIMT) (8 U.S.C. §

1182(a)(2)(A)(i)(I)). In November 2007, after several preliminary hearings, proceedings

were commenced to terminate petitioner’s asylum status based on his conviction by final

judgment of a “particularly serious crime” (8 U.S.C. § 1158(b)(2)(A)(ii) and (c)(2)). See 8




        1
          Petitioner unsuccessfully attempted to withdraw the plea, claiming that although he was advised
that the plea could have immigration consequences, he was not aware at the time that he was not a United
States citizen. Also, the plea was supposed to be to an amended count 1, but no amended indictment was
filed. The state court of appeals held that any defect was waived by the plea.
No. 09-4421                                                                                  3

C.F.R. §§ 1208.24(a)(3) and 1208.13(c)(2) (governing asylum applications filed before April

1, 1997).

       A hearing before the Immigration Judge (IJ) followed in September 2007, at which

the government introduced evidence outside the record of conviction that included the

indictment, guilty plea form, judgment, presentence report, and portions of transcripts from

the criminal proceedings. Petitioner objected to consideration of this evidence in determining

whether his conviction was for a “particularly serious crime.” The IJ overruled petitioner’s

objections in an interim order, relying on the BIA’s recent decision clarifying what evidence

may be considered in making the particularly-serious-crime determination. See Matter of N-

A-M, 24 I&N Dec. 336 (BIA 2007), aff’d 587 F.3d 1052 (10th Cir. 2009), cert. denied, 131

S. Ct. 898 (2011). Petitioner offered no additional evidence on the issue, and on July 1,

2008, the IJ terminated petitioner’s asylum status based on the finding that the conviction for

child endangerment was a “particularly serious crime.”

       Relying on that determination, the IJ next found that petitioner was removable based

on petitioner’s admission that he originally entered the United States without inspection and

therefore was present without admission or parole. In May 2009, however, on a motion for

reconsideration in light of the intervening decision in Matter of Silva-Trevino, 24 I&N Dec.

687 (A.G. 2008), the IJ revisited the second charge and concluded that petitioner was also

removable as an alien convicted of a CIMT. Lastly, in an oral decision rendered at the

conclusion of a hearing on July 19, 2009, the IJ summarized petitioner’s testimony and
No. 09-4421                                                                                  4

articulated the reasons for denying petitioner’s applications for withholding of removal,

protection under the Convention Against Torture (CAT), and cancellation of removal.

       Since neither petitioner’s appeal to the BIA nor the instant petition for review

meaningfully contested the denial of withholding of removal or protection under the CAT,

we do not recount the evidence or the findings with respect to his failure to establish past

persecution, a well-founded fear of future persecution, or a likelihood that he would be

subjected to torture if he were to return to El Salvador. With respect to the cancellation of

removal, there was no dispute that petitioner met the requirement that he be continuously

present in the United States for not less than ten years preceding the application. However,

the IJ concluded that the other requirements had not been met because petitioner (1) had not

been a person of “good moral character” during that time; (2) had a disqualifying conviction

for a CIMT; and (3) failed to establish that his removal would result in “exceptional and

extremely unusual hardship” to his mother or daughter who were United States citizens. The

IJ also concluded that, even if eligibility had been established, petitioner did not merit the

favorable exercise of discretion with respect to the cancellation of removal.

       On appeal, the BIA, expressly declined to reach the question of whether the conviction

was for a CIMT; affirmed the termination of petitioner’s asylum on the basis that he was

convicted of a “particularly serious crime”; and agreed that petitioner was ineligible for

cancellation of removal because he had failed to establish that his removal would result in

exceptional and extremely unusual hardship to his qualifying relatives. As here, the hardship
No. 09-4421                                                                                                5

question was not contested by petitioner. The BIA dismissed the appeal on October 20,

2009, and this timely petition for review was filed on November 19, 2009.

                                                     II.

        “Where the BIA reviews the immigration judge’s decision and issues a separate

opinion, rather than summarily affirming the immigration judge’s decision, we review the

BIA’s decision as the final agency determination. To the extent the BIA adopted the

immigration judge’s reasoning, however, this Court also reviews the immigration judge’s

decision.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citation omitted). As such,

it is clear from our review of the proceedings that the only question presented by the petition

for review is whether the BIA erred in affirming the termination of asylum based on the

determination that petitioner’s conviction for child endangerment was a “particularly serious

crime.” It was on that basis that the BIA found petitioner was removable—not the IJ’s

additional determination that the conviction also qualified as a CIMT.2

        The government acknowledges this court’s holding following Kucana v. Holder, 130

S. Ct. 827 (2010), that the jurisdiction-stripping provisions of the Act do not extend to the

Attorney General’s authority to “determine” or “decide” whether an alien is ineligible for

asylum (or withholding of removal) under 8 U.S.C. § 1158(b)(2)(A)(iii) (or §

1231(b)(2)(B)(iii)) (serious nonpolitical crime). See Berhane v. Holder, 606 F.3d 819, 821-

22 (6th Cir. 2010). The reasoning applies here as well, and we have jurisdiction to review



        2
         Having denied withholding of removal on other grounds, neither the IJ nor the BIA found it
necessary to decide whether withholding would also be barred because petitioner had been convicted of a
“particularly serious crime” for purposes of § 241(b)(3)(B)(ii) of the Act. See 8 U.S.C. § 1231(b)(3)(B)(ii).
No. 09-4421                                                                                   6

the determination that petitioner, “having been convicted by a final judgment of a particularly

serious crime, constitutes a danger to the community of the United States.” 8 U.S.C. §

1158(b)(2)(A)(ii).

       The term “particularly serious crime” is not defined, but in the context of asylum

“special rules” provide that “an alien who has been convicted of an aggravated felony shall

be considered to have been convicted of a particularly serious crime” and the “Attorney

General may designate by regulation” offenses that will be considered to be particularly

serious crimes. 8 U.S.C. § 1158(b)(2)(B)(i) and (ii). Otherwise, the Attorney General,

through the BIA, determines through case-by-case adjudication whether a conviction is a

“particularly serious crime” which is entitled to Chevron deference as long as it represents

a permissible reading of the statute. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)

(citing Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). The

BIA’s interpretation of the standards to be employed, including the most recent clarification

of what evidence may be considered, is found in the precedential decision Matter of N-A-M.

       Without referencing Matter of N-A-M, petitioner relies heavily on authority addressing

the manner for determining whether a conviction qualifies as a CIMT to argue that it was

error for the BIA and the IJ to look beyond the elements of the offense of conviction for child

endangerment to arrive at a sex-oriented offense. The BIA, however, explained in Matter

of N-A-M that the determination is made by examining “the nature of the conviction, the type

of sentence imposed, and the circumstances and underlying facts of the conviction.” Matter

of N-A-M, 24 I&N Dec. at 342. Noting that, at times, the determination may be made
No. 09-4421                                                                                   7

exclusively from the elements of the offense, i.e., the nature of the crime, the BIA explained

that:

        If the elements of the offense do not potentially bring the crime into a category
        of particularly serious crimes, the individual facts and circumstances of the
        offense are of no consequence, and the alien would not be barred from a grant
        of withholding of removal [or asylum]. On the other hand, once the elements
        of the offense are examined and found to potentially bring the offense within
        the ambit of a particularly serious crime, all reliable information may be
        considered in making a particularly serious crime determination, including the
        conviction records and sentencing information, as well as other information
        outside the confines of a record of conviction. Matter of L-S, [22 I&N Dec.
        645 (BIA 1999)].

Id. Applying this standard, the BIA found that the IJ had properly considered a statement

made in support of the warrantless arrest of N-A-M to find that the conviction for felony

menacing was particularly serious.

        Petitioner relies on one pre-Matter of N-A-M decision from the Ninth Circuit that

found error in the IJ’s reliance on facts recited in the state appellate court decision that had

not been admitted or established. See Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007).

According to the BIA, Morales was based on a misreading of the earlier precedential

decision in Matter of L-S. Matter of N-A-M, 24 I&N Dec. at 343-44; see also Anaya-Ortiz

v. Holder, 594 F.3d 673, 675-79 (9th Cir. 2010) (acknowledging the BIA’s explanation of

Morales and deferring to the BIA’s interpretation regarding what evidence may be

considered in determining whether a crime is particularly serious). In fact, the BIA noted

that no decision “has ever suggested that the categorical approach . . . is applicable to the

inherently discretionary determination of whether a conviction is for a particularly serious

crime.” Matter of N-A-M, 24 I&N Dec. at 344.
No. 09-4421                                                                                   8

       Consistent with Matter of N-A-M, the IJ first found that the nature of the crime, judged

by its elements, suggested a likelihood that the offense could be considered particularly

serious. The BIA emphasized that, although Ohio Rev. Code § 2919.22 is divisible, all of

the offenses were crimes against persons and therefore more likely to be considered

particularly serious. Moreover, the statute proscribes activities that endanger children,

including, abuse, torture, excessive corporal punishment, modeling a child in a sexually

explicit pose, and allowing a child to be within 100 feet of real property where drugs are

manufactured. Finding that the statute likely encompassed particularly serious offenses, the

IJ found the presentence investigation report and the transcripts from the state court

proceedings reliable and relevant.

       Petitioner’s conviction arose out of the indictment on five counts of gross sexual

imposition, of which count one alleged sexual contact with an eight- to nine-year old girl.

The IJ recognized that petitioner was not convicted of a sex offense or required to register

as a sex offender, but relied on the factual basis offered at the time of the guilty plea to the

amended charge of child endangerment that described the offense based on the victim’s

statement that she fell asleep at a drive-in movie theater, awoke to find petitioner touching

her private area through her clothing, and was told by petitioner not to tell anyone. This, it

was noted, was also consistent with the rendition of the event found in the presentence report

prepared for the single count of child endangerment. Nor did the failure to amend the

indictment—a defect found by the state court to have been waived by the guilty plea—render

the factual basis for the plea irrelevant or unreliable. Another indicia of seriousness
No. 09-4421                                                                               9

identified by the IJ and the BIA was petitioner’s sentence of two years of imprisonment and

the sentencing judge’s comment that a lesser sentence “would demean the seriousness of the

Defendant’s conduct.” The IJ and the BIA did not err in considering evidence outside the

elements of the offense of conviction in determining that petitioner’s conviction was a

“particularly serious crime.”

       The petition for review is DENIED.
