NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO GALEANA, AKA Francisco No. 18-71900 Galenana, AKA Francisco Galerna, Agency No. A208-836-693 Petitioner, v. MEMORANDUM* JEFFREY A. ROSEN, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 8, 2020** Pasadena, California Before: THOMAS, Chief Judge, O'SCANNLAIN, Circuit Judge, and EZRA,*** District Judge. Petitioner Francisco Galeana (“Petitioner”) is a native and citizen of Mexico. * 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 David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. He petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the decision of an Immigration Judge (“IJ”) denying his application for withholding or deferral of removal pursuant to the Immigration and Nationality Act (“INA”) and related relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. Because the parties are familiar with the facts and history of this matter, we need not recount them here. The BIA did not abuse its discretion in determining that Petitioner’s particular conviction for second degree robbery in violation of California Penal Code § 211/212.5 constitutes a particularly serious crime (“PSC”). A PSC is a crime which “justif[ies] the presumption that the convicted immigrant is a danger to the community.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (quoting Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011)). Upon consideration of “(1) the nature of the conviction, (2) the type of sentence imposed, and (3) the circumstances and underlying facts of the conviction,” the BIA appropriately determined that Petitioner failed to demonstrate that the offense is not particularly serious. Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (internal quotation marks and citations omitted). “[T]he proper focus for determining whether a crime is particularly serious is on the nature of the crime and not the likelihood of future serious misconduct.” 2 Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir. 2013), abrogated on other grounds as recognized in Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018). “[O]nce an individual is found to have been convicted for committing a particularly serious crime . . . the individual is irrebuttably presumed to be a danger.” Gomez-Sanchez v. Sessions, 892 F.3d 985, 991 (9th Cir. 2018). Like the IJ, the BIA did not disregard Petitioner’s credible testimony but rather found that testimony insufficient to prove the crime is not particularly serious. Cf. Avendano-Hernandez, 800 F.3d at 1076–78 (noting the BIA found applicant’s evidence insufficient to reduce the seriousness of her crime, not that the BIA mischaracterized the ...
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