(CN) – The 9th Circuit withdrew and replaced its previous ruling that an El Salvador immigrant’s three DUI convictions qualify as “particularly serious crimes.” After rehearing the case, a three-judge panel revived Hernan Ismael Delgado’s petition for asylum.
In October 2008, the court refused to stop the deportation of Delgado, who said he faced torture if removed to his native country.
The panel agreed with the Board of Immigration Appeals’ conclusion that Delgado’s three prior felony DUI convictions constituted “particularly serious crimes,” which made him ineligible for asylum.
After granting panel review, the federal appeals court in San Francisco reversed and remanded.
None of Delgado’s three felony DUI convictions was an aggravated felony. One involved an injury accident, and two resulted in prison terms of less than two years.
The law states that any convicted felon sentenced to more than five years in jail “shall be considered to have committed a particularly serious crime.”
The court acknowledged that the U.S. attorney general has the authority to deem an immigrant’s crime “particularly serious,” even if the crime isn’t classified as a felony.
However, the judges disagreed that the DUI convictions qualified as “particularly serious” crimes. The ruling only applies to Delgado’s asylum petition; the court said it lacked the jurisdiction to apply its finding to his bid for deportation relief.
The court also ruled that Delgado failed to prove that he would likely be tortured if returned to El Salvador.