Case: 20-60587 Document: 00516153414 Page: 1 Date Filed: 01/04/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 4, 2022 No. 20-60587 Lyle W. Cayce Clerk Renferi Aviles-Tavera, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals Agency No. 077-401-890 Before Higginbotham, Stewart, and Wilson, Circuit Judges. Patrick E. Higginbotham, Circuit Judge: Renferi Aviles-Tavera (Aviles) appeals the determination by the Board of Immigration Appeals (BIA) that he is statutorily ineligible for withholding of removal and not entitled to protection under the Convention Against Torture (CAT). We deny Aviles’s petition for review. Case: 20-60587 Document: 00516153414 Page: 2 Date Filed: 01/04/2022 No. 20-60587 I Aviles is a native citizen of Mexico. Aviles has an extensive history before immigration courts in the United States. He first entered the United States illegally in 1988. In 1994, Aviles received notice that he was subject to deportation. Aviles filed an application for an extension of time to deport voluntarily, which was granted. He failed to leave by the required date. Aviles was again served with notice that he was subject to deportation in October 1998. An immigration judge (IJ) subsequently ordered his removal in 2000. Aviles also has a criminal history, and his felony assault conviction is at issue in the case before us. In 2001, while his removal case was still pending, Aviles was convicted of Misdemeanor Assault with Injury in Texas state court and sentenced to 30 days’ imprisonment. In 2004, Aviles was convicted of Felony Assault – Family Violence in Texas state court and was sentenced to 2.5 years’ imprisonment; the victim was his sister. After Aviles was released from prison, he was deported. In October 2013, Aviles reentered the United States and expressed fear of returning to Mexico. In November 2013, he was served with notice that he was subject to removal. In 2015, an IJ denied Aviles’s application for asylum, withholding of removal, and protection under CAT. Important to this appeal, the 2015 IJ found that Aviles’s felony assault conviction was not a “particularly serious crime” which would have made Aviles automatically ineligible under the withholding of removal statute. The 2015 IJ reasoned that the offense would ordinarily be classified as a misdemeanor and was only enhanced to a felony due to Aviles’s prior misdemeanor conviction. However, the 2015 IJ determined on the merits that Aviles was not entitled to withholding of removal or protection under CAT. Aviles was deported. In March 2017, Aviles once again presented himself and requested entry into the United States. In May 2018, he was served with a notice that 2 Case: 20-60587 Document: 00516153414 Page: 3 Date Filed: 01/04/2022 No. 20-60587 he was subject to removal. Aviles applied for asylum, withholding of removal, and protection under CAT. This application is the subject of the current appeal. Aviles’s application and hearing describe various attacks in Mexico by an individual, police, and the military due to …
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