NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 31 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL SALVADOR BONETE-LEMA, No. 17-72568 Petitioner, Agency No. A088-139-960 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 3, 2020 Submission Vacated March 4, 2020 Resubmitted March 29, 2021 Phoenix, Arizona Before: HAWKINS, OWENS, and BENNETT, Circuit Judges. Daniel Bonete-Lema, a native and citizen of Ecuador, petitions this court for review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal from the immigration judge’s (IJ) denial of his applications for adjustment of status and relief under the Convention Against Torture (CAT). We deny the petition. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Bonete-Lema was first removed from the United States in 2007 under 8 U.S.C. § 1227(a)(2)(A)(iii), which allows for the removal of aliens convicted of aggravated felonies. Bonete-Lema was convicted of “engag[ing] in nonconsensual sexual contact” under Minnesota Statutes § 609.3451(1)(1), but the criminal complaint specially charged that Bonete-Lema had “engaged in nonconsensual sexual contact[] with A.P., a known juvenile female.” Under the Immigration and Nationality Act (INA), aggravated felonies include the “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Aggravated felonies do not include sexual abuse of adults. Cf. Diego v. Sessions, 857 F.3d 1005, 1012 (9th Cir. 2017). Bonete-Lema did not petition for review of the 2007 removal order. But he did unlawfully reenter the United States in 2011 and was convicted of reentry after deportation under 8 U.S.C. § 1326(a). He was then served with a notice to appear. He conceded removability but sought adjustment of status. Although aliens who unlawfully reenter the United States after removal are generally ineligible for adjustment of status, Carrillo de Palacios v. Holder, 708 F.3d 1066, 1070 (9th Cir. 2013), Bonete-Lema argued that he was not precluded. He contended that his 2007 removal order was deficient because his Minnesota conviction was not categorically an aggravated felony. Bonete-Lema also sought CAT relief based on attempted robberies and attacks he suffered in Ecuador. The IJ denied Bonete-Lema’s applications for adjustment of status and CAT 2 relief and ordered him removed. The BIA affirmed, concluding that it lacked jurisdiction over Bonete-Lema’s collateral attack on the 2007 removal order and that the record “[did] not establish that it [was] more likely than not that [Bonete-Lema would] be tortured by or at the instigation of or with the consent or acquiescence . . . of a public official or other person acting in an official capacity upon removal to Ecuador.” “When the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) …
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