FILED NOT FOR PUBLICATION SEP 24 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE RAMOS-MENDOZA, No. 15-73840 Petitioner, Agency No. A078-013-842 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 9, 2018 San Francisco, California Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA,** District Judge. Petitioner Ramos-Mendoza seeks relief from a Board of Immigration Appeals (“BIA”) order dismissing his appeal from an Immigration Judge’s (“IJ”) * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. decision denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction over his timely petition, 8 U.S.C. § 1252, and we deny it. I Ramos-Mendoza’s suspended Nevada sentence of twenty-four to sixty months in prison qualifies as a sentence to a “term of imprisonment of at least 5 years.” 8 U.S.C. § 1231(b)(3)(B)(iv). We disregard the suspension of his sentence for purposes of making this calculation. 8 U.S.C. § 1101(a)(48)(B). We need not address the question of whether the appropriate reference is to state law, see Shaya v. Holder, 586 F.3d 401, 406 (6th Cir. 2009), or simply to look to the maximum sentence, see Nguyen v. INS, 53 F.3d 310, 311 (10th Cir. 1995), because the result in this case is the same. Because Nevada law characterizes an indeterminate sentence as a sentence “for the maximum period imposed by the court subject to termination by parole after service of the minimum term,” Spillers v. State, 436 P.2d 18, 23 (Nev. 1968) (emphasis added), overruled in part on other grounds, Bean v. State, 465 P.2d 133 (Nev. 1970), either approach confirms that Ramos-Mendoza’s sentence is “at least 5 years,” § 1231(b)(3)(B)(iv). Accordingly, we need not, and do not, decide which approach is required; we only conclude that the BIA did not err in determining that Ramos-Mendoza was 2 ineligible for withholding of removal because his “aggravated felony” conviction resulted in a sentence of “at least 5 years.” § 1231(b)(3)(B)(ii), (iv); see also Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305–07 (9th Cir. 2015) (noting that an “aggravated felony” conviction resulting in a sentence of “at least 5 years” in prison constitutes a “particularly serious crime,” rendering a non-citizen ineligible for withholding of removal). II Substantial evidence supports the BIA’s denial of relief under the CAT. Arbid v. Holder, 700 F.3d 379, 385–86 (9th Cir. 2012) (standard of review). The record indicates that LGBTQ individuals in Mexico face discrimination at higher rates than those in the United States and that the Mexican government’s enforcement of the country’s anti-discrimination laws is sometimes inadequate. This evidence, however, does not compel the conclusion that if Ramos-Mendoza is removed to Mexico, he is more likely than ...
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