NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAFAEL TRUJILLO PARRA, No. 20-71578 Petitioner, Agency No. A209-877-416 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 28, 2021 Pasadena, California Before: M. SMITH and OWENS, Circuit Judges, and ROBRENO,** District Judge. Rafael Trujillo Parra, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his applications for (1) withholding of removal, and (2) deferral of removal under the Convention Against * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Torture (“CAT”). Because “the BIA cite[d] [Matter of] Burbano[, 20 I. & N. Dec. 872, 874 (BIA 1994)] and also provide[d] its own review of the evidence and law, we review both the [Immigration Judge’s (“IJ”)] and the BIA’s decisions.” Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). As the parties are familiar with the facts, we do not recount them here. We deny the petition.1 1. Particularly Serious Crime Parra argues that the BIA and IJ erred in concluding that his assault conviction was for a “particularly serious crime,” rendering him ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). We review that decision only for abuse of discretion as to whether the agency applied the correct legal standard and relied on the appropriate factors and evidence. Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020). We do not re-weigh the evidence leading to the agency’s “ultimate determination.” Id. (citation omitted). In conducting the particularly serious crime analysis, the IJ considers three factors: “(1) the nature of the conviction, (2) the type of sentence imposed, and (3) the circumstances and underlying facts of the conviction.” Id. (internal quotation 1 There is a pending motion and supplemental motion to stay Parra’s removal. Dkt. Nos. 1, 6. At Parra’s request during oral argument, we leave the temporary stay of removal intact until the mandate in this case issues. Once the mandate issues, we deny both motions as moot. 2 marks and citation omitted). A noncitizen convicted of a particularly serious crime is now presumed to be a “danger to the community.” See Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (citation omitted). The IJ also considers evidence of the noncitizen’s mental health during the commission of the crime. See Gomez- Sanchez v. Sessions, 892 F.3d 985, 995-97 (9th Cir. 2018). Parra argues that the IJ abused her discretion by evaluating the wrong factors, incorrectly focusing on Parra’s mental illness and his “likelihood of future misconduct” rather than the nature of his crime. The record, however, shows otherwise. In a detailed order, the …
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