BERZON, Circuit Judge, concurring in part and dissenting in part:

The majority opinion is seriously off-track with respect to its first two holdings, but its final conclusion regarding asylum is correct: We may review the BIA's asylum "particularly serious crime" holding on the merits, and, doing so, we can only conclude that the IJ abused his discretion in finding that Delgado was ineligible for asylum. As to our jurisdiction over the merits of the withholding of removal issue, I agree that we are bound by Ninth Circuit precedent, but believe that precedent to be quite wrong, as well as inconsistent with the law as it has been developing in other circuits.

To summarize my views:

First and most important, neither of the majority's two holdings concerning the "particularly serious crime" provisions of 8 U.S.C. §§ 1158(b)(2)(B) and 1231(b)(3)(B) can be reconciled with the most basic principles of statutory interpretation. The majority concludes that the "particularly serious crime" exclusions for asylum and withholding of removal mean nearly the same thing, substantively and procedurally, even though the language, structure, purpose, and context of the two sections are all quite different. That simply cannot be. For the reasons I discuss below, the only viable construction of the "particularly serious crime" provision of § 1231(b)(3)(B), the withholding version, is that only aggravated felonies can be "particularly serious crime[s]." And the only viable interpretation of the asylum "particularly serious crime" provision, § 1158(b)(2)(B), is that the Attorney General can make nonaggravated felonies "particularly serious crimes" only through regulation, not on a case-by-case basis.

Second, the majority properly relies on Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001), to hold that the BIA's determination that a crime is "particularly serious" for withholding purposes is discretionary and so not reviewable, and so I concur in section C(1) of the majority opinion, with one caveat. See pp. 4413-14, supra. But Matsuk rests on faulty premises, recently rejected by the Second and Third Circuits in convincing opinions. In my view, Matsuk should be reconsidered by this Court sitting en banc. Third, the majority is correct as to its reliance on and application of Morales. I therefore also concur in part C(2) of the majority's opinion and do not address it further in this concurrence.

I. Particularly Serious Crime Exceptions A. Overview

Congress's goal when it created the "particularly serious" crime exception was, in part, to provide a basis for removal of certain aliens convicted of criminal offenses that conforms to our international commitments. This purpose resulted in key differences between the "particularly serious crime" provisions applicable to withholding and those applicable to asylum. The majority's opinion considers neither the origin of the "particularly serious crimes" provisions nor the obvious differences between them, and so comes to the erroneous conclusion that the two provisions are both essentially identical and essentially limitless. As a result, the majority allows to stand the BIA's procedures for determining whether Delgado's DUI convictions were each "particularly serious crimes," for purposes of both asylum and withholding relief, a conclusion that, as I shall show, clashes with Congress's underlying basis for adopting the "particularly serious crime" exception.

1. The Refugee Convention and Protocol

The original source of the term "particularly serious crime" is the 1951 Convention Relating to the Status of Refugees, 19 U.S.T. 6259, 189 U.N.T.S. 150 ("Convention"). The Convention prohibits states from "return[ing] an alien to a country where his `life or freedom would be threatened' on account of one of the enumerated reasons." INS v. Cardoza-Fonseca, 480 U.S. 421, 429, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). An exception to this rule permits removal of an alien who, "having been convicted . . . of a particularly serious crime, constitutes a danger to the community of that country." Convention, art. 33(2).

Both the duty not to remove an alien to a country where such persecution is likely and the "particularly serious crime" exception were adopted by the United States through accession to the 1967 UN Protocol relating to the Status of Refugees ("Protocol"), 19 U.S.T. 6223, 606 U.N.T.S. 267, which includes the obligations previously enumerated in the Convention. Both the duty and the exception were incorporated, in turn, in the Immigration and Nationality Act ("INA") by the Refugee Act of 1980. See Cardoza-Fonseca, 480 U.S. at 429, 107 S.Ct. 1207; Matter of Frentescu, 18 I. N. Dec. 244, 246 n. 2, (BIA 1982). Thus, "[i]f one thing is clear from the legislative history of the . . . 1980 Act, it is that one of Congress' primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees." Cardoza-Fonseca, 480 U.S. at 436, 107 S.Ct. 1207.

Consistent with this purpose, the Supreme Court has interpreted terms used in these 1980 refugee amendments to the INA in light of their meaning under the Convention and Protocol. See id. at 439 nn. 22 24, 107 S.Ct. 1207 (citing UN High Commission for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Ch. II B(2)(a) §§ 37-42 (1979) ("Handbook"), and 1 A. Grahl-Madsen, The Status of Refugees in International Law 180 (1966)) (interpreting term "refugee" as used in § 243(h) of the INA by 1980 Act, through reference to analysis of its meaning under the Protocol). The meaning of "particularly serious crime" under the Convention and Protocol is thus critically important in interpreting the same term in the INA.

Taking that approach, how serious is a "particularly serious crime"? The Convention and Protocol do not provide a definition, but they do offer a basis for comparison with other offenses. In Matter of Frentescu, the BIA pointed out that because the Convention also established an exception to withholding of removal for "serious nonpolitical crimes" an alien has committed outside the country where he has taken refuge, "it should be clear that a `particularly serious crime' . . . is more serious than a `serious nonpolitical crime.'" Id. at 247 (emphasis added); see also 8 U.S.C. § 1231(b)(3)(B)(iii); Convention art. 33(1)(F) (establishing that an "alien [who] committed a serious nonpolitical crime outside the United States before the alien arrived in the United States" is not eligible for withholding of removal) (emphasis added). In other words, an offense that is less serious than a "serious nonpolitical crime" cannot be a "particularly serious crime." The Handbook, which "provides significant guidance in construing the Protocol," Cardoza-Fonseca, 480 U.S. at 439 n. 22, 107 S.Ct. 1207, describes a "serious non-political crime" as "a capital crime or very grave punishable act." Handbook, ¶ 155 (1992 ed.). To qualify as a "particularly serious crime" under the Convention and Protocol, then, an offense must be more serious than just any "very grave punishable act."

While such an interpretation of "particularly serious crime" may seem overly narrow, it is consistent with the basic premises of the Convention. Conviction for a "particularly serious crime" permits removal of an alien to a country where it is probable that he will be deprived of "life or freedom" on account of protected grounds. Convention art. 33(1), (2). The reason removal under these circumstances is justified is that the alien has committed a crime so serious that, even if he remained in his country of refuge, its state would be justified in imposing grave punishment upon him.

In this case, the BIA determined that Delgado was ineligible for asylum and withholding of removal because his three DUI convictions constituted a "particularly serious crime" under both §§ 1231(b)(3)(B) and 1158(b)(2)(B), relating to withholding of removal and asylum respectively. Among these offenses was a conviction for driving under the influence causing death or bodily injury, which resulted from an accident where Delgado and his passenger (and possibly, though the record is unclear, the occupants of the other vehicle) were seriously injured. While I in no way minimize the seriousness of Delgado's offenses, I do not see how a DUI — which, as the majority recognizes, is not an "aggravated felony" for purposes of our own immigration law, see Maj. Op. at 4371 — can be a "particularly serious crime" in the sense that Congress understood the term when it incorporated it into the INA — at least with respect to withholding of removal, which, as I explain shortly, is the bedrock protection afforded aliens in danger of persecution in their home countries on a protected ground.

2. Asylum and Withholding of Removal

A conviction for a "particularly serious crime" makes an alien ineligible for asylum, as well as for withholding of removal. § 1158(b)(2)(B) (asylum); § 1231(b)(3)(B) (withholding). However, "Congress has drawn a critical distinction in its use of the term `particularly serious crime'" in § 1158(b)(2)(B) as compared with the use of the same term in § 1231(b)(3)(B), In re L-S-, 22 I. N. Dec. 645, 652 (BIA 1999), and for good reason.

Regarding eligibility for withholding of removal, § 1231(b)(3)(B) states that,

[A]n 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 sentence imposed, an alien has been convicted of a particularly serious crime. In the case of eligibility for asylum, § 1158(b)(2)(B) establishes

that,

[A]n alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.

. . . The Attorney General may designate by regulation offenses that will be considered to be a[particularly serious] crime . . .

The obvious differences in the statutory text of these two subsections suggest three distinctions in meaning.

First, the category of per se "particularly serious crime[s]" is broader in the asylum context than it is in the case of withholding of removal. Section 1158(b)(2)(B) makes all aggravated felonies per se "particularly serious crime[s]" for asylum purposes, while § 1231(b)(3)(B), pertaining to withholding of removal, only makes aggravated felonies "for which the alien has been sentenced to an aggregated term of at least five years imprisonment" a per se category of "particularly serious crime[s]."

Second, with regard to asylum, the statutory structure and language suggest no express limitation as to which crimes may be designated as "particularly serious." Rather, all aggravated felonies are per se "particularly serious," and other crimes may be so designated. In contrast, the withholding of removal provision confers on the Attorney General the authority to determine that an offense is a "particularly serious crime" notwithstanding the length of the sentence imposed, but does not confer any express authority to designate non-aggravated felonies as "particularly serious."

Third, the two subsections define differently how offenses outside of these per se categories may be determined to constitute particularly serious crimes. The asylum provision states that "the Attorney General may designate by regulation offenses that will be considered particularly serious crimes." (emphasis added). By contrast, the withholding provision gives the Attorney General the general authority to "determine" whether a crime is particularly serious, indicating that any otherwise permissible method of determination is allowed.

The majority concludes that these obvious distinctions are without much practical difference. On the majority's view, the only difference between the two "particularly serious crime" exceptions is that for asylum purposes all aggravated felonies are per se particularly serious crimes, while for withholding purposes only aggravated felonies for which the sentence was longer than five years are automatically particularly serious. As to the Attorney General's ultimate authority — to designate any crime as particularly serious — and methodology — to designate crimes as particularly serious by regulation or on a case-by-case basis — the majority sees the two statutes as identical. Why Congress bothered to word the otherwise parallel sections so differently in this regard when it meant the same thing we are not told.

Taking together the guidance provided by Congress's intention to abide by the Protocol and Convention and the very different statutory language Congress used with regard to asylum and withholding of removal, I would begin my interpretation of the statute by recognizing — as the majority does not — that Congress wrote two different "particularly serious crime" provisions because it meant two different things. Critically, asylum and withholding of removal differ under the INA in ways other than the differences in their "particularly serious crime" provisions, and do so in ways connected to the Protocol and the Convention. These other differences go a long way toward explaining why the "particularly serious crime" exception is considerably broader substantively but more restrictive procedurally for asylum than for withholding of removal.

For an alien to be granted withholding of removal under the INA, he must show that it is "more likely than not" that he will be persecuted in the country to which he otherwise would be removed. INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); 8 U.S.C. § 1231(b)(3)(A) (prohibiting removal of an alien whose "life or freedom would be threatened in that country [to which the alien otherwise would be removed] because of[a protected ground]"). Withholding of removal thus represents the minimum level of relief required by the Convention and Protocol. Compare § 1231(b)(3)(A), to Convention, art. 33(1) (stating that no Contracting State may "return (`refouler') a refugee . . . to the frontiers of territories where his life or freedom would be threatened on account of [a protected ground]"). Accordingly, such relief is mandatory if an alien is See 8 U.S.C. § 1231(b)(3)(A)("[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country . . ." (emphasis added)); Stevic, 467 U.S. at 421 n. 15, 104 S.Ct. 2489.

By contrast, to be eligible for asylum an alien is not required to show that it is "more likely than not," id. at 424, 104 S.Ct. 2489, that he will be persecuted in the country to which he would be removed. Instead, he need only show that he has been persecuted on account of a protected ground in the past, or that he has a "well-founded fear" of persecution in the future. See 8 §§ 1101(a)(42)(A), 1158(b)(1)(A). To establish such a well-founded fear, an applicant need only show a one in ten chance of persecution. See Cardoza-Fonseca, 480 U.S. at 431, 107 S.Ct. 1207. At the same time, the granting of asylum to eligible aliens is discretionary, not mandatory. See 8 U.S.C. § 1158(b)(1)(A)("(T)he Attorney General may grant asylum . . ." (emphasis added)). The reason that this discretionary benefit is consistent with this country's obligations under the Convention and Protocol, and therefore with Congress' intention to "bring United States refugee law into conformance with the . . . Protocol," Cardoza-Fonseca, 480 U.S. at 436, 107 S.Ct. 1207, is that the standards for eligibility for asylum are more relaxed than the Convention and Protocol require. As a result, as Congress understood, asylum need not conform in all respects with the international commitments, as long as withholding relief does so conform.

These substantive differences between asylum and withholding of removal under the INA have important implications for how the "particularly serious crime" exception applies to each form of relief from removal. Withholding of removal is the form of relief essential to Congress's goal of "conformance with the . . . Protocol." Id. at 436, 107 S.Ct. 1207. That goal can only be achieved if a "particularly serious crime" for which an alien is denied eligibility for withholding of removal under the statute also qualifies as such under the Protocol itself. Not so with asylum, because asylum relief, as a whole, is not structured to conform to the Protocol.

This critical substantive distinction between asylum and withholding of removal suggests some answers to the key question that the majority, puzzlingly, does not even ask: Why did Congress in IIRIRA adopt such distinctly different statutory language to define the same term — particularly serious crime — in § 1231(b)(3)(B), relating to withholding of removal, and in § 1158(b)(2)(B), relating to asylum? The evident reasons are two.

First, with respect to the asylum exception, Congress did not need to give the Attorney General the authority to "determine" on a case-specific basis which offenses constitute "particularly serious crime[s]." Even for aliens eligible for asylum, the Attorney General can exercise discretion not to grant asylum because of the alien's criminal record, whether the alien has committed a "particularly serious crime" or not. The only reason to specify "particularly serious crimes" for asylum eligibility purposes, consequently, is to provide for uniformity with regard to categories of crimes. By contrast, aliens who qualify for withholding of removal are mandatorily entitled to such relief, see Stevic, 467 U.S. at 421 n. 15, 104 S.Ct. 2489, so there could be no case-by-case individualized "determin[ation]" based on criminal history without specific statutory authorization. E

Second, the difference between the eligibility and discretion standards applicable to asylum and withholding of removal also helps explain why Congress made all aggravated felonies, not only those with sentences of five years or more, per se "particularly serious crime[s]" for asylum purposes and also why Congress did not restrict "particularly serious crimes" to aggravated felonies for that purpose. Limitations on asylum relief do not risk violation of the Protocol, so long as withholding of removal relief conforming to the Protocol remains available. See, generally, L-S-, 22 I. N. Dec. at 652 (stating that "the reason for [Congress'] . . . different approach" in § 1158(b)(2)(B) and § 1231(b)(3)(B) is that "Congress understood that in enacting revised section [§ 1231](b)(3), it was carrying forth the statutory implementation . . . of our international treaty obligations"). Consequently, there was reason for Congress to take particular care with regard to withholding of removal, to assure that aliens who otherwise meet the statutory requirement for relief are denied this relief only for offenses that are likely to meet the "particularly serious crime" exception in the Protocol.

The majority turns a blind eye to all of these considerations — the meaning of the "particularly serious crime" locution in the original internal documents, the differences between asylum and withholding relief, and the obvious distinctions between the asylum and withholding "particularly serious crimes" exceptions. Not surprisingly, given its out-of-context approach, the majority's ultimate conclusions on the "particularly serious crime" issues are wrong as well.

B. 8 U.S.C. § 1231(b)(3)(B) — Withholding of Removal

The majority concludes that § 1231(b)(3)(B) authorizes the Attorney General to designate any nonaggravated felony as a "particularly serious crime" for purposes of eligibility for withholding of removal. Even on its own narrow terms, the majority's reasoning in so concluding is inconsistent with a plain reading of the text, with established canons of statutory interpretation, and with the history of the provision.

1. Statutory Language

Initially, as the Third Circuit held in Alaka v. Atty. Gen. of the United States, 456 F.3d 88 (3d Cir. 2006), a plain words, common sense reading of § 1231(b)(3)(B) indicates that Congress did not authorize the Attorney General to designate nonaggravated felonies as particularly serious crimes. See id. at 104. After specifying that any aggravated felony resulting in a sentence of five years or more "shall be considered . . . a particularly serious crime," § 1231(b)(3)(B) provides that "the previous sentence 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." Quite obviously, the authority conferred — to "determin[e] that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime" — refers to the limitation imposed in "the previous sentence — whether the offense carried an "aggregate term of imprisonment of at least five years." Id. (emphasis added).

This Court has at least three times previously recognized that this is the natural reading of the statutory text. See Villegas v. Mukasey, 523 F.3d 984, 987 (9th Cir. 2008) ("Crimes resulting in imprisonment for at least five years are `particularly serious' per se, while the Attorney General can determine that any aggravated felony, regardless of the sentence imposed is particularly serious."); Afridi 442 F.3d at 1217 (stating that § 1231(b)(3)(B)(ii) provides the Attorney General with "discretion to determine whether an aggravated felony conviction resulting in a sentence of less then five years is a particularly serious crime"); Singh v. Ashcroft, 351 F.3d 435, 439 (9th Cir. 2003) ("An aggravated felony that results in at least a five-year sentence is considered a particularly serious crime. Moreover, under Section 1231(b)(3)(B)(ii) the Attorney General may determine that any aggravated felony, even one that results in a sentence of less than five years, qualifies as particularly serious."). That this court has repeatedly regarded that understanding of the provision as the facially apparent one confirms that it is the ordinary meaning that a reader takes from it. I submit that the reason these cases did not saying anything more on the matter is that there is nothing more to say, once one reads the statute.

The majority, however, regards our earlier cases as not having adequately addressed the possibility that nonaggravated felonies are "particularly serious crimes," and goes on to adopt the reasoning of the Seventh Circuit's decision in Ali v. Achim, 468 F.3d 462 (7th Cir. 2006), cert. granted, ___ U.S. ___, 128 S.Ct. 29, 168 L.Ed.2d 806, cert. dismissed, ___ U.S. ___, 128 S.Ct. 828, 169 L.Ed.2d 624 (2007). Ali's interpretation, later adopted by the BIA in In re N-A-M-, 24 I. N. Dec. 336 (BIA 2007), relies on what the statute doesn't say, rather than on what it does, asserting that because "§ 1231 does not state a general rule that only aggravated felonies can be considered `particularly serious' crimes," § 1231(b)(3)(B) "creates no presumption that the Attorney General may not exercise discretion on a case-by-case basis to decide that other nonaggravated-felony crimes are also `particularly serious.'" 468 F.3d at 470. Ali — and the majority's — reading of § 1231(b)(3)(B) runs counter to basic principles of statutory construction.

First, the Ali/N-A-M- interpretation renders the sentence that begins "the previous sentence" entirely superfluous. If Congress's (unstated) understanding was that the Attorney General could designate any offense as a particularly serious crime, then why would Congress need to say anything to negate the contrary implication of the "previous sentence"? And once Congress did choose to clarify that some discretion remained to the Attorney General, why would it limit that clarification to extending this authority "notwithstanding the length of a sentence," if it meant to allow unlimited discretion? We simply don't read statutes as throwing around loose, meaningless language for no discernible reason. See United States v. Novak, 476 F.3d 1041, 1048 (9th Cir. 2007) (stating that courts should "avoid whenever possible statutory interpretations that result in superfluous language"). Yet, that is what the majority, relying on Ali and N-A-M-, proposes.

The majority's interpretation of § 1231(b)(3)(B) also conflicts with another basic interpretive rule, " expressio unius est exclusio alterius," which specifies that the inclusion of one item ordinarily excludes similar items that could have been, but were not, mentioned. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003). Section 1231(b)(3)(B) specifically permits the Attorney General to designate aggravated felonies resulting in prison terms of less than five years as "particularly serious crime[s]." "[W]hen the items expressed are members of an associated group . . . the inference[is] that items not mentioned were excluded by deliberate choice." Id. (internal quotation marks omitted). Whether we define the "associated group" here as "crimes," "felonies" or "aggravated felonies," the sole members of the group named in § 1231(b)(3)(B) are convictions for aggravated felonies: those carrying sentences of more than five years, and those carrying sentences of less than five years. The fact that non-aggravated felonies were not mentioned at all necessarily suggests that Congress did not intend to include them as "particularly serious crime[s]" for purposes of withholding of removal.

Ali suggests that the canon does not apply in this case because "§ 1231 does not state a general rule that only aggravated felonies can be considered `particularly serious.'" 468 F.3d at 470. But this rejoinder turns the canon of construction backwards. The canon looks to what a statute includes (" expressio unius"), to determine what it does not (" exclusio alterius"), not vice versa.

Moreover, and critically, the majority's interpretation fails to give effect to the distinctions in statutory language between § 1231(b)(3)(B) and § 1158(b)(2)(B). The latter states, in § 1158(b)(2)(B)(i), that any "[c]onviction of an aggravated felony," is a particularly serious crime, but then adds, in § 1158(b)(2)(B)(ii), that "[t]he Attorney General may designate by regulation offenses that will be considered" a particularly serious crime, without any mention of "the length of the sentence imposed." The majority nonetheless reads the authority accorded the Attorney General under the two quite different "particularly serious crime" provisions as identically broad. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Tang v. Reno, 77 F.3d 1194, 1197 (9th Cir. 1996).

To make matters worse, the majority's interpretation of § 1231(b)(3)(B)(ii) is also inconsistent with the rest of the subsection. As I explained earlier, the subsection also provides that an "alien [who] committed a serious nonpolitical crime outside the United States before the alien arrived in the United States" is ineligible for withholding of removal. § 1231(b)(3)(B)(iii) (emphasis added). "[W]hat constitutes a `serious nonpolitical crime' is not susceptible of rigid definition." INS v. Aguirre-Aguirre, 526 U.S. 415, 429, 119 S.Ct. 1439, 143 L.Ed.2d 590 (U.S. 1999) (quoting Deportation Proceedings for Doherty, 13 Op. Off. Legal Counsel 1, 23 (1989)). Still, the offenses that the BIA has considered "serious nonpolitical crimes," typically fall well within the current definition of aggravated felony. Compare, e.g., id. at 420-21, 119 S.Ct. 1439 (battery, and destruction of public and private property); Kenyeres v. Ashcroft, 538 U.S. 1301, 1306, 123 S.Ct. 1386, 155 L.Ed.2d 301 (2003) (money-laundering for organized crime); to 8 U.S.C. § 1101(a)(43)(D) (defining "aggravated felony" as including money laundering); § 1101(a)(43)(F) (defining "aggravated felony" as including crimes of violence against persons or physical property). Yet, "a `particularly serious crime' . . . is more serious than a `serious nonpolitical crime,'" Frentescu, 18 I. N. Dec. at 247 (emphasis added). So, unless the statute is hopelessly internally inconsistent, offenses less serious than aggravated felonies cannot be "particularly serious crime[s]". See Padash v. INS, 358 F.3d 1161, 1170-71 (9th Cir. 2004) ("We must make every effort not to interpret the provision at issue in a manner that renders other provisions of the same statute inconsistent. . . ." (internal quotation marks and brackets omitted)).

The short of the matter is that the majority's reading of § 1231(b)(3)(B)(ii), like BIA's reading in N-A-M-, clashes with one principle of statutory interpretation after another. Applying those principles, there is nothing ambiguous about the withholding exception for "particularly serious crimes." And because the application of a myriad of "the traditional tools of statutory interpretation" to § 1231(b)(3)(B) shows that "the intent of Congress — that nonaggravated felonies cannot qualify as "particularly serious crimes" for purposes of withholding of removal — is clear from the face of the statute, Sloan v. West, 140 F.3d 1255, 1261' (9th Cir. 1998), we need not, contrary's to the majority's assertion, extend Chevron deference to the BIA's position in N-A-M- on this issue. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Bell v. Reno, 218 F.3d 86, 94 (2d Cir. 2000) ("An agency's interpretation of a statutory provision is not reasonable when it ignores an established rule of statutory construction set forth by the Supreme Court.").

The BIA's opinion in N-A-M- does not warrant Chevron deference for the additional reason that the Board itself did not consider the opinion to reflect its reasonable interpretation of an ambiguous statute. Rather, the Board concluded that its position was compelled by a "plain reading of the Act." See N-A-M-, 24 I. N. at 338. Because the Board was not attempting to fill a gap left by Congress, it was not acting pursuant to an agency's general authority to resolve statutory ambiguities, and its decision is therefore not entitled to deference. See Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006) ("[D]eference to an agency's interpretation of a statute is not appropriate when the agency wrongly believes that interpretation is compelled by Congress.") (internal quotations marks and citations omitted).

2. Legislative History

On my understanding of the withholding exception for "particularly serious crime[s]," the analysis should stop with the words of the statute, read common-sensically, in context, and in light of established principles of statutory interpretation. See Cardoza-Fonseca, 480 U.S. at 452-53, 107 S.Ct. 1207 (Scalia, J., concurring) ("Where the language of [a] law[] is clear, we are not free to replace it with an unenacted legislative intent;" nor is an "exhaustive analys[is]" of a statute's legislative history appropriate "where the language of the enactment at issue is clear."); see also United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 103 L.Ed.2d 290 ("[A]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute."). The majority and N-A-M- nonetheless insist on reading the statute through the prism of its history, rather than on its face — and doing so, get the message of that history dead wrong.

As the majority accurately recounts, the "particularly serious crimes" concept first appeared in the INA in 1980, in a provision denying withholding of removal to an alien who, "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." Pub.L. No. 96-212, § 200, 94 Stat. 102 (1980). The majority does not recognize, however, that the original "particularly serious crime" concept was adopted from the Refugee Convention and Protocol's non-refoulement provision, not created out of whole cloth by Congress. As such, the concept was intended, as its words suggest, as a quite narrow exception to the responsibility not to send aliens back to countries where they are likely to be persecuted on protected grounds, for crimes not only "serious," but " particularly serious."

The changes to § 243(a) here relevant all furthered Congress's intent to assure compliance with the Refugee Convention and Protocol. First, in the Immigration Act of 1990 ("1990 Act"), soon after the first appearance of the "aggravated felony" concept in the INA in 1988, See Pub.L. 100-690, § 7342, 102 Stat. 4181 (1988), Congress created a categorical bar to withholding of removal for aliens convicted of aggravated felonies by designating all such offenses per se "particularly serious crimes." See Pub.L. No. 101-649, 104 Stat. 4978, 5053. At the time, the crimes designated as "aggravated felonies" were indeed quite serious, so designating them as per se "particularly serious" was a way of assuring uniformity and efficiency. See Pub.L. No. 100-690, § 7342, 102 Stat. 4181, 4469-4470 (1988 version of the INA) ("aggravated felony" defined as: "murder; any drug trafficking crime, . . . or any illicit trafficking in any firearms or destructive devices"); also Pub.L. No. 101" 649, § 501, 104 Stat. 4978, 5048 (Immigration Act of 1990) (money laundering and crimes of violence for which the term of imprisonment is at least five years added to list of "aggravated felon[ies]").

Next, in 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which "expanded the definition of aggravated felony" to include a much greater range of offenses, thus broadening the "particularly serious crime" exception's reach. See Choeum v. INS, 129 F.3d 29, 42 (1st Cir. 1997). Because AEDPA's expanded definition of aggravated felony "include[d] crimes that might be considered less serious than those the Protocol intended to cover in its exclusion clause," Congress became concerned that application of the categorical bar would result in removals that did not conform to the Protocol. Id. As Senator Kennedy explained,

[T]o declare an aggravated felon anyone convicted of an offense involving imprisonment of one year, . . . means that people with fairly minor offenses would be ineligible to seek withholding of deportation, [which] in many instances may violate the Refugee Convention.

Mark-up on S. 1664 before the Senate Committee on the Judiciary, 104th Cong., 2d Sess. 60-61 (1996). To address this concern, Congress included in AEDPA a provision allowing the Attorney General to override the 1990 Act's categorical designation of "aggravated felonies" as "particularly serious crimes" if withholding of removal was "necessary to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees." 8 U.S.C. § 1253(h) (current version at § 1231(b) (1996)); Choeum, 129 F.3d at 43 (1st Cir. 1997).

The final step in the evolution of the withholding of removal "particularly serious crime" exception was the enactment, later in 1996, of IIRIRA, which gave us the current statutory text of the INA and yet again expanded significantly the "aggravated felony" concept. See Pub.L. No. 104-208, Div. C, § 321, 110 Stat. 3009-546, 3009-627-3009-628. In particular, for several offenses Congress reduced the minimum penalty necessary for a conviction to qualify as an aggravated felony from five years to one, see § 321(a)(3), (10), (11). This vast broadening of the "aggravated felony" category of crimes had obvious implications for the usefulness of that category as a stand-in for the "particularly serious crime" withholding exception. It was in that context that Congress, in IIRIRA, removed the 1990 Act's broad categorical bar for all aggravated felonies as well as AEDPA's override provision, substituting for both (1) the narrower categorical bar for aggravated felonies "for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years," and (2) the provision for "the Attorney General . . . [to] determin[e] that, notwithstanding the length of sentence imposed, [the] alien has been convicted of a particularly serious crime." The current statutory text thus is most sensibly understood as still another attempt to implement the "particularly serious crime" exception in a manner that conforms with the Protocol, this time accounting for IIRIRA's further broadening of the aggravated felony category by both limiting the per se category to a subset of aggravated felonies and limiting "particularly serious crimes" to only aggravated felonies.

Nothing in this history suggests a Congressional intent in 1996 to allow the Attorney General to designate as "particularly serious crimes" offenses so minor that Congress did not regard them as within the now broad category of "aggravated felonies" used for other INA and immigration law purposes. Put another way, nothing in the sequence of enactments ending in the current version of § 1231(b)(3)(B) indicates that Congress intended to allow an alien to be removed to a country where he probably will be persecuted on account of his race, religion, nationality, membership in a particular social group, or political opinion, because he committed a crime too minor to be designated an "aggravated felony" under the INA — too minor, for example, to disqualify him from other forms of relief or to require that he be detained pending removal proceedings. Instead, the current version of the statute recognizes that even among the crimes designated as "aggravated felonies," many — perhaps most — now would not meet the "particularly serious" exception of the Protocol and Convention, and so leaves the Attorney General the task of sorting out, on a case-by-case basis, which of the expanded class of "aggravated felonies" are "particularly serious."

In sum, the statutory text of § 1231(b)(3)(B), interpreted in context and in light of established canons of statutory construction, can only be read — and we have always read it — as providing the Attorney General the authority to determine that aggravated felonies with sentences of less than a year, but not other crimes, are "particularly serious" for the purposes of eligibility for withholding of removal. Nothing in the legislative history indicates otherwise. I therefore cannot agree with the majority's conclusion that the Attorney General has free rein to call any crime "particularly serious" and so send an alien to a country where he is likely to be persecuted.

C. 8 U.S.C. § 1158(b)(2)(B)(ii) — Asylum

Nor can I agree with the majority's reading of the quite different asylum provision concerning "particularly serious crimes." Adopting, once again, the reasoning of the Seventh Circuit in Ali, the majority concludes that the IJ was authorized to decide on a case-specific basis that Delgado's nonaggravated felony convictions also qualified as particularly serious crimes, rendering him ineligible for asylum under § 1158(b)(2)(B). See 468 F.3d at 469 (stating that § 1158(b)(2)(B) does not require the Attorney General to anticipate his adjudication by regulation covering every single crime.). And this interpretation is, once again, in conflict with the plain words, common sense reading of the statute.

Congress explicitly stated that the authority granted in 8 U.S.C. § 1158(b)(2)(B)(ii) to "designate . . . offenses that will be considered to be a [particularly serious crime]" is an authority that may be exercised "by regulation." The majority maintains that the "by regulation" language pertains only to categorical exceptions, and that the BIA can also proceed by case-by-case adjudication.

The first problem with this reading of the statute is that it is not what the statute says. The "by regulation" sentence is general; it is not limited to categorical distinctions. And the statute does not provide for any other way of determining that offenses are "particularly serious" for asylum purposes.

Moreover, the majority's implication from silence does not explain why Congress included the "by regulation" sentence. Indeed, under the majority's interpretation, the sentence is — once more — entirely surplusage. "Absent express congressional direction to the contrary, agencies are free to choose . . . between rule making and adjudication." Davis v. EPA, 348 F.3d 772, 785 (9th Cir. 2003) (parentheses and citations omitted). The INA provides the Attorney General broad power to "establish such regulations . . . as he deems necessary for carrying out his authority under the provisions of this chapter." 8 U.S.C. § 1103(a) (current § 1103(g)(2); United States v. Chen, 2 F.3d 330, 333 (9th Cir. 1993)). So there was no need to include the "by regulation" sentence in § 1158(b)(2)(B) to authorize the BIA to issue regulations designating categories of offenses as "particularly serious crime[s]." That authority existed already.

Similar language concerning the promulgation of regulations as to particular issues has been understood to require regulations as the mode of agency decisionmaking as to that issue. See Davis, 348 F.3d at 785 (citing 42 U.S.C. § 7545(a)'s directive that "[t]he Administrator may by regulation designate any fuel . . . [for registration pursuant to § 7545(b)]" as proof that "Congress knew how to impose rulemaking requirements under the Clear Air Act when it wanted to do so") (emphasis added). Moreover, Congress could have specified that the Attorney General was authorized to make "particularly serious crime" determinations via adjudication, via regulation, or via both methods. As it chose to only specify "by regulation," § 1158(b)(2)(B), the necessary — and nonsuperfluous — implication is that it chose to exclude the other options. See Barnhart, 537 U.S. at 168, 123 S.Ct. 748.

This implication is strengthened by the consideration that no similar "by regulation" sentence appears in the withholding of removal section governing "particularly serious crimes," a difference that should be accorded some significance. See City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338, 114 S.Ct. 1588, 128 L.Ed.2d 302 (1994) ("It is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another") (internal quotation marks omitted) (citing Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993)). Given the general, broad statutory authorization Congress gave the Attorney General to issue regulations, we could not reasonably surmise that the Attorney General is precluded from issuing regulations to implement the withholding of removal "particularly serious crime" provisions by specifying categories of offenses as particularly serious. The only sensible implication from this difference between the two "particularly serious crime" provisions, consequently, is that the Attorney General can, but need not, proceed by regulation rather than case-by-case adjudication with respect to withholding, but must proceed by regulation with regard to the exception to eligibility for asylum.

This understanding of the textual differences makes perfect sense in light of other differences between asylum and withholding of removal. The Attorney General retains discretion to decide on a case-by-case basis whether to grant asylum to eligible applicants. Cardoza-Fonseca, 480 U.S. at 429, n. 6, 107 S.Ct. 1207. As an individualized determination occurs down-the-line in the asylum process, there was no reason to provide for such a case-by-case process at the eligibility stage. In contrast, withholding of removal is mandatory for eligible applicants, so any individualized determination must occur at the eligibility stage. There is also less need for case-by-case determination with regard to asylum, because a denial of asylum to an otherwise eligible alien does not directly raise the risk of noncompliance with the Refugee Convention. Cf. L-S-, 22 I. N. Dec. at 652. Recognizing these differing concerns at issue in the two contexts results in an interpretation of the procedural requirements of § 1158(b)(2)(B) more faithful to Congress' purposes than the one-size-fits-all approach adopted by the majority. Cf. L-S-, 22 I. N. Dec. at 652 (interpreting § 1158(b)(2)(B), and § 1231(b)(2)(B) in same way "annul[s] the deliberate distinction made by Congress in the IIRIRA.").

Further, on my reading, Congress has already designated for withholding purposes the universe of offenses that can be designated as "particularly serious crimes" — aggravated felonies, as defined in the INA. See 8 U.S.C. § 1101(a)(43). As the authority accorded the Attorney General with regard to asylum is not so circumscribed, Congress could well have preferred a formal process, subject to public comment and to uniform application.

Finally, making such designations "by regulation" would not require the Attorney General to "sift through each state's [penal] code" to "identify through regulation every single `particularly serious' [crime]." Ali 468 F.3d at 469, cited in the majority opinion at 4379. As the majority recognizes, the Attorney General could issue regulations designating specific categories of non-aggravated felonies as particularly serious crimes, just as Congress already has done by statute for aggravated felonies. See, e.g., 8 U.S.C. § 1101(a)(43) (designating certain categories of crimes as aggravated felonies). Alternatively, just as the BIA already does through adjudication in the case of aggravated felonies, the Attorney General could specify, through rulemaking, those factors which would render a non-aggravated felony conviction a particularly serious crime for this purpose. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (holding that the Attorney General has the authority to "create a strong presumption that drug trafficking offenses are particularly serious crimes").

In sum, Congress chose to require designation of non-aggravated felonies as "particularly serious crimes" for asylum purposes by formal promulgation of regulations, while allowing case-by-case designation of "particularly serious crimes" for withholding purposes, but only from among aggravated felonies. Any other reading of the two statutes once again makes sameness out of difference and supposes that Congress indulged in redundancy and indirection.

II. Jurisdiction

The majority accepts that we may decide the issues I have already discussed, presumably because they are purely legal issues. See 8 U.S.C. § 1252(a)(2)(D). But the majority concludes that we lack jurisdiction to review the merits of the BIA's ultimate determination that Delgado's DUI convictions were "particularly serious crimes" under § 1231(b)(3)(B). This conclusion is premised on the view that this determination falls under § 1252(a)(2)(B)(ii)'s preclusion of judicial review of "decision[s] . . . the authority for which is specified under this subsection to be in the discretion of the Attorney General."

In Matsuk v. INS, we held that the authority granted by 8 U.S.C. § 1231(b)(3)(B) to deny withholding of removal of an alien "if the Attorney General decides that . . . [the] alien has been convicted of a particularly serious crime" is discretionary within the meaning of § 1252(a)(2)(B)(ii), and therefore that the BIA's denial of withholding on this basis is not reviewable by this Court. See 247 F.3d at 1002; Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th Cir. 2003). So I agree with the majority that our decision in Matsuk is controlling as to the reviewability of the IJ's ultimate determination that his DUI convictions constituted a "particularly serious crime" under § 1231(b)(3)(B).

Matsuk's conclusion on this specific point has, however, recently been rejected by two circuits, in opinions I find persuasive. See Alaka v. Atty. General of the United States, 456 F.3d 88 (3rd Cir. 2006); Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008). Both the Second and Third Circuits concluded that the fact that § 1231(b)(3)(B) gives the Attorney General authority to "`decide' or `determine'" that an offense is a particularly serious crime is "not, standing alone, sufficient to `specify' discretion." Alaka, 456 F.3d at 96-97. As the Third Circuit observed in Alaka, "Congress knows how to `specify' discretion and has done so repeatedly in other provisions of the INA." Id. at 97 and n. 17 (citing "thirty-two . . . provisions in the very subchapter of the INA referenced by 8 U.S.C. § 1252(a)(2)(B)(ii) that make explicit the grant of `discretion' to the Attorney General or the Secretary of Homeland Security"). It did not do so in § 1231(b)(3)(B). See id.; see also Nethagani, 532 F.3d at 154-55.

Moreover, Matsuk is in tension with our own case law. Matsuk stated that,

The decision to deny withholding to Matsuk was based upon the Attorney General's discretion, pursuant to Section 1231(b)(3)(B)(ii), to determine whether an aggravated felony conviction resulting in a sentence of less than 5 years is a particularly serious crime. Thus Section 1252(a)(2)(B)(ii) divests this court of jurisdiction to review this issue.

247 F.3d at 1002 (footnote and quotation marks omitted). Matsuk did not, however, explain why this is so. Instead, it simply cited the BIA's decision in Matter of S-S- 22 I. N. Dec. 458 (BIA 1999), which states that § 1231(b)(3)(B) "affords the Attorney General discretion to exercise her judgment as to whether the conviction is for a particularly serious crime when an alien has been sentenced to less than 5 years for the very same offense." 22 I. N. Dec. at 464 (cited in Matsuk, 247 F.3d at 1002 n. 13).

As this Court recognized in Spencer Enterprises, however, § 1252(a)(2)(B)(ii) does not deprive us generally of jurisdiction to review "discretionary decisions" of the Attorney General under the INA. 345 F.3d at 689. Instead, § 1252(a)(2)(B)(ii) only restricts us from reviewing those decisions "the authority for which is specified under the INA to be discretionary." Id. (emphasis in original). Under the test this Court adopted in Spencer Enterprises, it would appear that the determination of "particularly serious crime[s]" under § 1231(b)(3)(B) is not a decision "the authority for which is specified under the INA to be discretionary." § 1252(a)(2)(B)(ii); 345 F.3d. at 689. Spencer Enterprises, however, was decided after Matsuk and characterized "the decision at issue in Matsuk — whether to classify an alien's past offense as a `particularly serious crime' under § 1231(b)(3)(B) — as one that" did fall under this second category, because it is "a decision that is entirely lacking in statutory guidelines." Id. at 690. Given Matsuk, Spencer Enterprises, and Morales, I have no choice but to accept the majority's conclusion that we lack plenary jurisdiction to review the Attorney General's "particularly serious crime" designations with regard to withholding. But for these cases, I would hold, as have the Second and Third Circuits, that a statutory provision that simply gives the Attorney General authority to "determine" something is not one that is "specified under the INA to be discretionary." § 1252(a)(2)(B)(ii).

I note, however, that at least some of the issues Delgado seeks to raise on the merits regarding the IJ's designation of his offenses as a particularly serious crime are not ones that fall within the jurisdiction-stripping provisions of § 1252(a)(2)(B)(ii). Congress, in the REAL ID Act, has made clear that § 1252(a)(2)(B)(ii) does not "preclude[][our] review of . . . questions of law raised upon a petition for review." § 1252(a)(2)(D). In Morales, this Court considered, in light of the REAL ID Act, how broadly to construe Matsuk's holding regarding the BIA's unreviewable discretion to determine that a specific offense is a particularly serious crime. See Morales, 478 F.3d at 979, citing Matsuk, 247 F.3d at 1002. We stated that "this court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) . . . to consider legal questions related to the determination of whether a crime is particularly serious." 478 F.3d at 980 (parentheses and citation omitted).

In his petition for review, Delgado questions whether, as a matter of law, DUI convictions can constitute a "particularly serious crime" under § 1231(b)(3)(B), and whether this statute should be applied retroactively to his convictions. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (issues of statutory construction are per se questions of law). It may well be that Delgado cannot prevail on either of these issues. Section 1252(a)(2)(B)(ii), however, does not deprive us of jurisdiction to make this determination.

Conclusion

I cannot agree with the majority that the BIA has authority to make "particularly serious crime" determinations for asylum purposes on a case-specific basis. I also would conclude that the IJ and BIA erred as a matter of law in determining that Delgado's convictions rendered him ineligible for withholding of removal under § 1231(b)(3)(B), so I would remand for consideration of the merits of this claim as well. I agree, however, that Delgado is eligible for asylum, and that we lack jurisdiction, for the most part, over the application of the withholding of removal standard. I therefore concur in the majority opinion to that extent.