NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KELVIN HERNANDEZ-MENDOZA, No. 20-71390 Petitioner, Agency No. A216-051-376 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 10, 2022** Seattle, Washington Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges. Kelvin Hernandez-Mendoza petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We review the parts of the Immigration Judge’s (“IJ”) decision that the BIA incorporates. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). We review for an abuse of discretion the BIA’s conclusion that “an offense constitutes a particularly serious crime.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (simplified). We review agency findings of fact for substantial evidence. 8 U.S.C. § 1252(b)(4)(B); Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir. 2008). We review questions of law and constitutional claims de novo. Young Sun Shin v. Mukasey, 547 F.3d 1019, 1023 (9th Cir. 2008). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition. 1. We disagree with Hernandez-Mendoza that the IJ, and by extension the BIA, applied the wrong legal standard in concluding that he was convicted of a “particularly serious crime.” An alien is statutorily ineligible for asylum and withholding of removal if he commits a “particularly serious crime.” See Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc) (citing 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii)). “[A] crime is particularly serious if the nature of the conviction, the underlying facts and circumstances and the sentence imposed justify the presumption that the convicted immigrant is a danger to the community.” Id. The IJ thoroughly considered these factors in determining that Hernandez- Mendoza’s conviction for sexual abuse in the second degree in violation of Oregon Revised Statutes § 163.425 was a “particularly serious crime.” The IJ examined 2 Hernandez-Mendoza’s guilty plea, the imposed sentences, the police report of the incident, the physical examination performed on the victim, and the interviews of the victim, her roommate, and her mother, and the salient facts were corroborated or undisputed. See Bare v. Barr, 975 F.3d 952, 964 (9th Cir. 2020) (“The BIA may consider ‘all reliable information’ in determining whether a crime constitutes a particularly serious crime, which is a wide-reaching inquiry and includes consideration of conviction records, sentencing information, and ‘other information outside the confines of a record of conviction.’” (simplified)). We see no legal error in the IJ’s review of Hernandez-Mendoza’s conviction. The BIA and IJ also did not abuse their discretion in holding that the …
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