NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN ANTONIO REYES, No. 18-71436 Petitioner, Agency No. A029-140-172 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 17, 2022** Las Vegas, Nevada Before: D.M. FISHER,*** BENNETT, and KOH, Circuit Judges. Juan Antonio Reyes (“Reyes”) petitions for review of a Board of Immigration Appeals (“BIA”) order dismissing his appeal from the immigration * 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). *** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. judge’s (“IJ”) (1) determination of his ineligibility for special rule cancellation under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), (2) denial of his application for asylum, (3) denial of withholding of removal, (4) denial of protection under the Convention Against Torture (“CAT”), and (5) denial of his request for an order of voluntary departure. We address each claim in turn. We review the agency’s “legal conclusions de novo and its factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). The parties are familiar with the facts of the case, so we do not recount them here. 1. We review the BIA’s legal conclusions de novo. Id. To be eligible for special rule cancellation of removal under NACARA, a noncitizen must show that he has not “been convicted of an aggravated felony.” 8 C.F.R. § 1240.66(a). As defined in the Immigration and Nationality Act (“INA”), an “aggravated felony” can be, among other crimes, “a crime of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). In 1996, Reyes received a felony conviction for corporal injury of a spouse under California Penal Code § 273.5. Reyes was sentenced to 365 days’ imprisonment. The California state court later reduced Reyes’ felony conviction to a misdemeanor but declined to reduce Reyes’ sentence. Reyes argues that he is 2 eligible for special rule cancellation under NACARA primarily because in 2015, California enacted California Penal Code § 18.5 to state that “[e]very offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.” Therefore, although Reyes was convicted of a felony, sentenced to 365 days in jail, and served those 365 days in jail, Reyes argues that the IJ and the BIA should have construed his sentence to have been 364 …
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