NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARVIN GEOVANI ZUNIGA JOHNSON, No. 19-72382 AKA Jose Pardo, AKA Marvin Zuniga, AKA Marvin G. Zuniga, AKA Marvin Agency No. A094-297-137 Geovani Zuniga, Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 20, 2020** Pasadena, California Before: PAEZ and OWENS, Circuit Judges, and ENGLAND,*** District Judge. Petitioner Marvin Zuniga Johnson, a native and citizen of Honduras, * 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 Morrison C. England, Jr., United States District Judge for the Eastern District of California, sitting by designation. petitions for review of a decision by the Board of Immigration Appeals (“BIA”), which denied his withholding of removal claims and found him ineligible for withholding of removal due to a conviction for a particularly serious crime. We have jurisdiction under 8 U.S.C. § 1252. “We review the [BIA’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). We grant the petition for review and remand for further proceedings. 1. The BIA misapplied the legal standard when it failed to discuss dangerousness or provide a rationale for its determination that Zuniga Johnson’s conviction under Cal. Penal Code § 261.5(c) was a particularly serious crime. “Whether the BIA applied the proper legal standard in determining whether [a petitioner’s] crime was ‘particularly serious’ raises a question of law.” Blandino- Medina v. Holder, 712 F.3d 1338, 1342–43 (9th Cir. 2013). “An alien is ineligible for withholding of removal if ‘the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States.’” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (quoting 8 U.S.C. § 1231(b)(3)(B)(ii)).1 When assessing 1 Aggravated felonies resulting in a sentence of at least five years imprisonment are per se particularly serious crimes. 8 U.S.C. § 1231(b)(3)(B)(iv). Because a conviction under § 261.5(c) is not an aggravated felony, Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017), and Zuniga Johnson was sentenced to one year of imprisonment, his conviction is not a per se particularly serious crime. 2 whether a conviction is for a particularly serious crime, the BIA uses the multifactor test from Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982). Although dangerousness is no longer analyzed as a separate factor, Anaya-Ortiz v. Holder, 594 F.3d 673, 679 (9th Cir. 2010), the other factors must “justify the presumption that the convicted immigrant is a danger to the community.” Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc). The ...
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