Full opinion text
OPINION CANBY, Circuit Judge: Hernán Ismael Delgado petitions for review of a decision of the Board of Immigration Appeals (“BIA”) ordering him removed to his native El Salvador. The BIA denied Delgado’s applications for asylum, withholding of removal, and withholding under the Convention Against Torture (“CAT withholding”), finding that Delgado’s three prior offenses of driving under the influence (“DUI”), which were not aggravated felonies, constituted “particularly serious crimes” that made him ineligible for those forms of relief. The BIA also found Delgado ineligible for deferral of removal under the Convention Against Torture (“CAT deferral”) because he failed to demonstrate the requisite likelihood of future torture. We dismiss in part and deny in part Delgado’s petition for review. We defer to the BIA’s view that, for purposes of withholding of removal, the applicable statute permits the Attorney General to decide by adjudication that an alien’s individual crime is “particularly serious” even though that crime is not classified as an aggravated felony. We also conclude that, for purposes of asylum, the Attorney General may determine by adjudication that a crime is “particularly serious” without first so classifying it by regulation. We further determine that we are without jurisdiction to review the merits of such decisions. Finally, we hold that substantial evidence supports the decision of the BIA that Delgado failed to meet his burden of proving that he is more likely than not to be tortured if returned to El Salvador. Background Delgado, a native and citizen of El Salvador, entered the United States on a non-immigrant visitor visa over twenty years ago. In July 2001, the Immigration and Naturalization Service (“INS”) initiated removal proceedings against him because he had overstayed his visa. Delgado conceded removability but sought asylum, withholding of removal, CAT withholding and deferral, cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), and suspension of deportation. The Immigration Judge (“IJ”) denied Delgado’s request for CAT deferral, finding that Delgado had failed to show that he was more likely than not to be tortured if removed to El Salvador. The IJ also found that each of Delgado’s three prior felony DUI convictions constituted a “particularly serious crime” that barred him from eligibility for asylum under 8 U.S.C. § 1158(b) (2) (A) (ii), withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii), and CAT withholding under 8 C.F.R. § 1208.16(d)(2). The BIA affirmed the decision of the IJ in an unpublished per curiam decision signed by one member, and this appeal followed. Discussion The BIA did not specify whether it reviewed de novo the IJ’s decision, but stated that it agreed with the IJ on the basis of “the record before [it].” The BIA’s simple statement of a conclusion, without analysis, suggests that it relied significantly on the IJ’s decision. In such situations, we review the decision of the BIA and look to the IJ’s oral decision “as a guide to what lay behind the BIA’s conclusion.” See Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). I. The “particularly serious crime” bar The ultimate issue raised by Delgado is whether the BIA erred in deciding that his DUI convictions constituted “particularly serious crimes” that made him ineligible for withholding of removal and asylum. A major threshold question is whether the applicable statutes permit the agency to determine Delgado’s offenses to be “particularly serious” by individual adjudication not limited by certain statutory or regulatory requirements. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review this question of law. Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006). Although this issue of the BIA’s authority to determine by adjudication that an alien’s crime is “particularly serious” arises with regard to both withholding of removal and asylum, the statutory context differs for each form of relief and raises distinctive legal subissues. We therefore treat the two forms of relief separately. A. Withholding of Removal An alien is ineligible for withholding of removal if, among other things, “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). For the purposes of this provision, 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 sentence imposed, an alien has been convicted of a particularly serious crime. Id. The question that naturally arises from this plain text is whether the last sentence is meant to limit the Attorney General (or his delegate, the BIA) to the universe of aggravated felonies described in the preceding sentence or, conversely, whether the last sentence simply preserves the Attorney General’s authority to determine a crime to be particularly serious regardless of the penalty or its designation or non-designation as an aggravated felony. At the time the present appeal was argued, the BIA had not addressed this issue in a precedential opinion, in this case or any other. An unpublished decision by a single BIA member is not entitled to the deference prescribed by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th Cir.2006). Recently, however, a three-member panel of the BIA has issued an extensive published opinion holding that § 1231(b)(3)(B) permits the Attorney General to decide by case-by-case adjudication that particular crimes are “particularly serious” even though they are not aggravated felonies. In re N-A-M-, 24 I & N Dec. 336, 338-39 (BIA 2007). Such a prec-edential opinion is entitled to Chevron deference. See Garcia-Quintero, 455 F.3d at 1012. For reasons that we now set forth, we conclude that the BIA’s interpretation of § 1231(b)(3)(B) is reasonable, and we accordingly defer to it. Two other circuits, which addressed the issue before the BIA weighed in with a precedential opinion, reached opposite results. The Third Circuit, applying a textual and structural approach, concluded that an offense “must be an aggravated felony to be ‘particularly serious.’ ” Alaka v. Attorney General of the United States, 456 F.3d 88, 104-05 (3d Cir.2006), cert. dismissed, 128 S.Ct. 828 (2007). The court reasoned that the sentence allowing the Attorney General to determine that a crime is particularly serious “notwithstanding the length of sentence imposed,” 8 U.S.C. § 1231(b)(3)(B), “explicitly refers back to the ‘previous sentence,’ and accordingly implies that [the Attorney General’s authority] is limited to aggravated felonies.” Id. The Seventh Circuit disagreed, concluding that “the absence of a ... provision for nonaggravated-felony crimes does not imply that only aggravated felonies can qualify as ‘particularly serious’ crimes.” Ali v. Achim, 468 F.3d 462, 470 (7th Cir.2006), cert. dism., — U.S. -, 128 S.Ct. 828, 169 L.Ed.2d 624 (2007). The BIA found persuasive the Seventh Circuit’s view that the designation of certain aggravated felonies as per se “particularly serious” does not preclude the Attorney General from deciding, on a case-by-case basis, that any other crime is also “particularly serious.” The BIA’s adoption of this position was reasonable. The statute does not limit the definition of “particularly serious” crimes to aggravated felonies. Nor does it expressly require the Attorney General, when considering whether a crime that is not categorically barred is “particularly serious,” to consider only aggravated felonies where the sentence imposed was less than five years. The legislative history of the particularly serious crime bar, referred to by the BIA in In re N-A-M- 24 I. & N. Dec. at 339-340, supports this interpretation. In 1980, § 243(h) of the Immigration and Nationality Act was amended to deny withholding to an individual 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, § 202, 94 Stat. 102 (1980). Under this provision, the BIA determined on a ease-by-case basis which crimes were particularly serious, applying the balancing test of Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982). This test did not take into account whether the crime in issue had been statutorily defined as an “aggravated felony.” In time, the BIA denominated some crimes as inherently particularly serious, so that individual determinations with regard to those crimes did not have to be undertaken. See, e.g., Matter of Garcia-Garrocho, 19 I. & N. Dec. 423, 425 (BIA 1986). The statutory provision barring those convicted of “particularly serious” crimes from eligibility for withholding of removal then was amended three times. The Immigration Act of 1990 (the “1990 Act”) added the following language to § 243(h): “an alien who has been convicted of an aggravated felony shall be considered to have committed a particularly serious crime.” Pub.L. No. 101-649, 104 Stat. 4978, 5053. Nothing in the text or history of the 1990 Act suggests that Congress intended, by making aggravated felonies per se “particularly serious crimes,” to divest the Attorney General of his authority to determine, on a case-by-case basis, that other crimes were “particularly serious,” depending on the circumstances of their commission, among other things. And, notwithstanding the 1990 Act, the agency understood that it could adjudicate a crime to be “particularly serious” on a case-by-case basis. See Ahmetovic v. INS, 62 F.3d 48, 52 (2d Cir.1995) (agreeing with BIA’s conclusion that a crime need not be an aggravated felony to be adjudicated “particularly serious”); Matter of B-, 20 I. & N. Dec. 427, 430-31 (BIA 1991) (applying Frentescu factors under the 1990 Act to determine that the alien had been convicted of a particularly serious crime). Congress relaxed the per se category-created by the 1990 Act in 1996 with the passage of section 413(f) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1269 (1996) (“AEDPA”). The AEDPA amended § 243(h) to allow the Attorney General, “in [his] discretion,” to override the categorical bar designating all aggravated felonies “particularly serious” when “necessary to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees.” Id. The categorical bar was again relaxed later that year with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-602 (“IIRI-RA”). IIRIRA enacted the provision at issue here, which limits application of the categorical bar to aggravated felons sentenced to 5 years’ or more imprisonment. Id. We recognize that one of the aims of Congress in enacting the post-1990 statutory amendments was probably to avoid sweeping minor crimes into the categorical aggravated felony bar. But nothing in the legislative history indicates that Congress intended, by creating a categorical bar and by later relaxing that categorical bar, to eliminate the Attorney General’s pre-exist-ing discretion to determine that, under the circumstances presented by an individual case, a crime was “particularly serious,” whether or not the crime was an aggravated felony. We therefore find the BIA’s interpretation of the statute reasonable, and conclude that the BIA was entitled to determine, by adjudication, that Delgado’s DUI convictions were particularly serious crimes that barred him from eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3)(B) and CAT withholding under 8 C.F.R. § 1208.16(d)(2). B. Asylum We now turn to whether the BIA was authorized to determine that Delgado’s crimes were “particularly serious” for the purposes of his asylum application. Just as in the context of withholding, the relevant statute provides that an alien is ineligible for asylum if the Attorney General determines that “the alien, having been convicted of a particularly serious crime, constitutes a danger to the community.” 8 U.S.C. § 1158(b)(2)(A)(ii). For the purposes of this provision, “an alien who has been convicted by a final judgment of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” 8 U.S.C. § 1158(b)(2)(B)©. In addition, “[t]he Attorney General may designate by regulation offenses that will be considered to be a [particularly serious] crime....” 8 U.S.C. § 1158(b)(2)(B)(ii). There seems little question that this last provision permits the Attorney General to make particular crimes categorically “particularly serious” even though they are not aggravated felonies. The provision would be wholly redundant if the Attorney General were confined to making only aggravated felonies “particularly serious” crimes by regulation. The different question posed by this asylum statute is whether the Attorney General can determine by adjudication that an individual alien’s crime was “particularly serious,” or whether he must first by regulation provide that the particular crime is to be so characterized. Our discussion of the withholding statute is instructive. Just as with withholding, the agency initially made the determination whether an alien’s crime was particularly serious strictly by adjudication, applying the Frentescu factors. See Frentescu, 18 I. & N. Dec. at 247. Congress intervened in the 1990 Act only to ensure that certain crimes (aggravated felonies) would be categorically determined to be “particularly serious,” regardless of the circumstances of their commission. Congress then added its permission for the Attorney General in asylum cases to “designate by regulation offenses that will be considered to be [particularly serious crimes].” Id. It is most reasonable to interpret this provision as similarly concerned with the categorical designation of additional crimes as “particularly serious.” Indeed, it would be difficult to designate by regulation crimes that “will be considered” to be particularly serious unless the designation is categorical for those crimes. The provision simply does not speak to the ability of the Attorney General to determine in an individual case that the circumstances of an alien’s commission of a crime made that crime particularly serious, even though the same offense committed by other persons in other circumstances would not necessarily be particularly serious. The statute does not require the Attorney General to anticipate his adjudication by a regulation covering each particular crime. See Ali, 468 F.3d at 469. We therefore conclude that the BIA did not err in proceeding to determine by adjudication, in the absence of regulation, whether Delgado had committed a “particularly serious” crime that rendered him ineligible for asylum. C. The merits of the BIA’s decision The next question for decision is whether we may review the merits of the BIA’s determination that Delgado’s DUI convictions were “particularly serious crimes.” We conclude that we may not. We are statutorily precluded from reviewing decisions of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General ..., other than the granting of relief under section 1158(a) of this title [relating to asylum].” 8 U.S.C. § 1252(a)(2)(B)(ii). In Matsuk v. INS, 247 F.3d 999 (9th Cir.2001), we were presented with a determination by the BIA that an aggravated felony resulting in a sentence of less than five years imprisonment was a “particularly serious” crime. We held that the BIA’s ruling was an unreviewable discretionary decision within the meaning of the statutory bar. See id. at 1002. In later explaining this ruling, we stated: [T]he decision at issue in Matsuk— whether to classify an alien’s past offense as a ‘particularly serious crime’ under § 1231(b)(3)(B) — is a decision that is entirely lacking in statutory guidelines. Under the language of the statute, this decision is left entirely to the discretion of the Attorney General, with no governing statutory standards. Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th Cir.2003). The language that Matsuk and Spencer found to “specify” the authority to be discretionary in the Attorney General, within the meaning of § 1252(a)(2)(B)(ii), was the statutory provision denying withholding “if the Attorney General decides that ... an alien has been convicted of a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B); see also Spencer, 345 F.3d at 689-90. Virtually identical statutory language relates to asylum. Asylum is barred “if the Attorney General determines that ... the alien, ha[s] been convicted ... of a particularly serious crime.” 8 U.S.C. § 1158(b)(2)(A)(ii). The statutory language, therefore, suggests that the ultimate decision whether a crime is “particularly serious” is a discretionary decision not subject to our review with regard both to withholding of removal and of asylum. After the decisions in Matsuk and Spencer, Congress enacted the REAL ID Act of 2005, which provides that nothing in the provision limiting review of the Attorney General’s discretionary decisions “shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Our decisions subsequent to the REAL ID Act make clear, however, that the ultimate determination by the Attorney General that a crime is “particularly serious” is still an unreviewable discretionary decision. We so stated in Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.2005). Then, in Afridi v. Gonzales, 442 F.3d 1212 (9th Cir.2006), we were presented with a case where the IJ had failed to engage in a case-specific application of the Frentescu factors. Id. at 1219. We determined that this failure raised a point of law, and we remanded for further proceedings. Id. at 1219-21. In doing so, however, we recognized the limits of the question of law that we were deciding: “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.” Id. at 1218. A fair reading of Afridi is that the ultimate determination of the “particularly serious” nature of a crime is not subject to our review. Most recently, we decided in Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007), that in preserving our authority to review questions of law, the REAL ID Act permitted us to review mixed questions of law and fact. Id. at 654. Ramadan made clear, however, that the REAL ID Act did not “restore [our] jurisdiction over discretionary determinations.” Id. And it gave as an example of a statutorily-specified discretionary determination the “Attorney General’s determination ... that an aggravated felony is a particularly serious crime,” citing Matsuk. Id. at 655. It seems clear under our precedent, therefore, that the authority to review questions of law or mixed questions of law and fact under the REAL ID Act did not include a power to review a determination of the Attorney General that a crime was “particularly serious.” The dissent reads Morales v. Gonzales, 478 F.3d 972 (9th Cir.2007), to hold that we have jurisdiction over the “particularly serious” question as it relates to asylum applications. We do not read Morales to hold as much. To be sure, there is language in that case suggesting that the court had jurisdiction over the “particularly serious” question because it fell under an exception to the jurisdiction-stripping statute. Morales, 478 F.3d at 980 (“The denial of asylum is renewable because it is specifically exempted from § 1252(a)(2)(B)(ii)’s jurisdiction-stripping provisions.”). The court, however, did not review the merits of the “particularly serious” finding. Instead, it determined whether the immigration judge relied on the wrong facts in concluding that the crime was particularly serious — a question of law that is reviewable. Morales, 478 F.3d at 981-83; see Afridi, 442 F.3d at 1218. Moreover, § 1252(a)(2)(B)(ii) excepts from the jurisdictional bar the granting of relief under § 1158(a), relating to the authority to apply for asylum; it does not speak to § 1158(b), which is the “particularly serious” provision. It is true that the interrelation between §§ 1158(a) and (b) means that the success of an asylum application may depend on whether there has been a “particularly serious” crime. That alone, however, does not overcome the obvious problem that § 1252 excepts only § 1158(a). Thus, neither the statutory framework nor Morales supports the dissent’s theory that § 1252 excepts all asylum-related decisions from its jurisdictional bar. Finally, in Morales we suggested that, because our past decisions had held the Attorney General’s determination of a “particularly serious” crime to be an unre-viewable discretionary determination only with regard to aggravated felonies, it would be an extension of our law to apply the same rule to other crimes. See 478 F.3d at 979-80. Morales found it unnecessary to decide whether such an extension was appropriate, but our analysis above should make it clear that, under our precedent, the Attorney General’s unreviewable discretion must extend to both aggravated felonies and other crimes, and to both withholding of removal and asylum. The statutory framework for all of these decisions is virtually identical. The Attorney General exercises the same specified discretionary authority, and applies the same statutory language that bars relief, in all of these instances. There is, in our view, no analytically sound way to draw a line permitting review of some of these determinations and excluding review of others. We conclude, therefore that we are precluded by § 1252(a)(B)(ii) from reviewing the merits of the BIA’s determination that Delgado’s crimes were “particularly serious.” That issue does not present a reviewable question of law within the meaning of the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D). II. Relief under the Convention Against Torture We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA’s denial of Delgado’s claim for CAT deferral, see Morales, 478 F.3d at 980-81, and we review that decision for substantial evidence. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.2004). In order to be eligible for CAT deferral, Delgado must prove that he is more likely than not to be tortured upon his return to El Salvador. Id.; 8 C.F.R. § 1208.17(a). As the IJ noted, Delgado presented evidence that his mother, and probably his father, were victims of the rampant human rights violations that took place in El Salvador in the late 1970s and early 1980s. However, Delgado has not provided sufficient evidence that he currently risks being harmed if he returns to his native country. Country reports indicate that conditions in El Salvador have improved significantly since Delgado left the country, and that there is no longer evidence of politically motivated violence, killings, or disappearances in El Salvador. We therefore conclude that the BIA’s decision that Delgado is not entitled to CAT deferral is supported by substantial evidence. Conclusion The petition for review is DISMISSED in part and DENIED in part. . All three convictions were for felony DUI. One involved an injury accident, and two resulted in prison terms of less than five years. . Effective March 1, 2003, the functions of the INS were transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). This transfer has no effect on the review of Delgado’s case. . The IJ also denied Delgado's applications for suspension of deportation and relief under NACARA. Delgado does not seek review of those denials. . We have upheld the BIA's interpretation of this statute to require "only the factual finding of conviction of a particularly serious crime to support the determination of danger to the community,” without the necessity of a separate finding of such danger. Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir.1987). We therefore confine our analysis here to the question of "particularly serious” crimes, and omit any separate consideration of danger to the community. . In Morales v. Gonzales, we assumed without analysis that the Attorney General could deem a non-aggravated felony "particularly serious.” 478 F.3d 972, 980-81, 983 (9th Cir.2007). There, we remanded to the BIA for a redetermination, based on the correct legal standard, of whether Morales’s non-aggravated felony constituted a "particularly serious crime.” Id. at 983. Because the statutory interpretation of § 1231(b)(3)(B) is squarely contested here, we address the issue in depth for the first time. . The BIA looked "to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.” Frentescu, 18 I. & N. Dec. at 247. . The long history of case-by-case determination of "particularly serious” crimes bears more weight, in our view, than the canons of construction relied upon by the dissent. Canons of statutory construction "are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent.” Scheidler v. Nat'l Org. for Women, 547 U.S. 9, 23, 126 S.Ct. 1264, 164 L.Ed.2d 10 (2006). See also Chickasaw Nation v. United States, 534 U.S. 84, 93-95, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001). . Although the legislative history is sparse, there seems to be no doubt that one purpose of this enactment was to prevent violations of the Refugee Convention’s non-refoulement provision .that might occur because of a rigid application of the aggravated felony bar. See In re Q-T-M-T-, 21 I. & N. Dec. 639, 648 n. 4 (BIA 1996). Such treaty violations were becoming more likely because, at the time, the list of aggravated felonies was expanding, and a categorical bar could have included "fairly minor offenses” in its sweep. Id. (internal quotations and citation omitted); see also Choeum v. INS, 129 F.3d 29, 42-44 (1st Cir.1997) (accepting INS’s argument that 1996 amendments were fueled by expansion of the term “aggravated felony”). . The BIA's precedential decision in In re NA-M- did not address § 1158(b)(2)(B)(I) because the asylum application in that case was untimely. We therefore have no precedential decision of the BIA to be accorded Chevron deference on the precise asylum question presented here. . As we described in the previous section, Congress relaxed its categorical bar somewhat with regard to withholding of removal. It did not do so with regard to asylum. . Other circuits have split on this issue. The Seventh Circuit holds that it is without jurisdiction to review the merits of the determination of an alien’s crime to have been "particularly serious,” see Ali, 468 F.3d at 468; Tunis v. Gonzales, 447 F.3d 547, 549 (7th Cir.2006), but the Third Circuit took a contrary position in Alaka, 456 F.3d at 94-101, as did the Second Circuit in Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir.2008). .The preservation of our authority to review discretionary decisions relating to asylum is confined to decisions under § 1158(a), which does not include the bar for "particularly serious” crimes. We have described this provision authorizing review of an otherwise-unreviewable discretionary decision as relating to "the ultimate authority whether to grant asylum.” See Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th Cir. 2003). Thus, not every ruling arising in an asylum case is subject to review. See, e.g., Lanza v. Ashcroft, 389 F.3d 917, 924 (9th Cir.2004). . In Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007), discussed later in this opinion, we emphasized the statutory language "if the Attorney General decides that” as granting un-reviewable discretion. Id. at 655.
BERZON, Circuit Judge, dissenting: The majority opinion is seriously offtrack with respect to three of its four key holdings. As to the fourth, 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 proeedurally, 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 crimefs].” And the only viable interpretation of the asylum “particularly serious crime” provision, § 1158(b)(2)(B), is that the Attorney General can make non-aggravated felonies “particularly serious crimes” only through regulation, not on a case-by-case basis. Second, as to the jurisdictional issues, the majority’s conclusion that 8 U.S.C. § 1252(a)(2)(B)(ii) withdraws our jurisdiction to review the Board of Immigration Appeals’ (“BIA’s”) asylum decision is directly in conflict with Morales v. Gonzales, 478 F.3d 972 (9th Cir.2007). Morales held that asylum issues generally are renewable, even when committed to the Attorney General’s discretion, because of an express statutory provision pertaining only to asylum decisions. The majority holds the opposite. Moreover, the majority does not recognize that some of the specific claims Delgado seeks to raise regarding the determination that his convictions constitute a “particularly serious crime” are, substantively and procedurally, “legal questions related to th[is] determination,” Id. at 980. Because they are, we have jurisdiction to decide them even with regard to withholding of removal. Id. Third, 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. 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. I address each issue just outlined in turn. 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 conclusion that Delgado’s DUI convictions were each “particularly serious crimes,” barring 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 1018 — 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 eligible. 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 U.S.C. §§ 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)(l)(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. 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 non-aggravated 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 nonag-gravated 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 “deter-min[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 non-aggravated 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). All’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 nonaggra-vated-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 a Menus,” 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].” “[Wjhen 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 nonaggravated 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 al-terius ”), 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)®, that any “[cjonviction 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. “[Wjhere 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 the 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 non-aggravated 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-Mon 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. Dec. 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 eommon-sensi-cally, in context, and in light of established principles of statutory interpretation. See Cardo