FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DANILO ALBERTO MAIRENA, AKA No. 15-72833 Danilo Alberto Mairewa, AKA Danilo Alberto Mariena, AKA Agency No. Danilo Marieno, A027-142-897 Petitioner, v. OPINION WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 14, 2018 * Pasadena, California Filed March 7, 2019 * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 MAIRENA V. BARR Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Carol Bagley Amon, ** District Judge. Per Curiam Opinion SUMMARY *** Immigration Denying Danilo Mairena’s petition for review of a decision of the Board of Immigration Appeals that upheld an immigration judge’s denial of withholding of removal, protection under the Convention Against Torture (“CAT”), and related relief, the panel held that it is appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime. Mairena was convicted of willful infliction of corporal injury upon the mother of his child with a prior conviction, in violation of California Penal Code § 273.5(e)(1), and was sentenced to five years of imprisonment: four years for the offense, plus a one-year enhancement, pursuant to California Penal Code § 12022.5(b)(1), for using a weapon during the commission of the offense. ** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MAIRENA V. BARR 3 In removal proceedings, the BIA concluded that (1) Mariena was statutorily ineligible for withholding of removal because he was sentenced to an aggregate term of five years of imprisonment for his corporal injury conviction, factoring in the one-year enhancement; and (2) the IJ did not clearly err in determining that Mairena failed to establish that he would more likely than not be tortured if he returned to Nicaragua. Under 8 U.S.C. § 1231(b)(3)(B)(ii), withholding of removal is not available “if the Attorney General decides that . . . the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States . . . .” The provision further explains: “For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.” Mairena did not dispute that his conviction constituted an aggravated felony, but argued that the BIA erred by considering the one-year sentencing enhancement in deciding that he was sentenced to an aggregate term of imprisonment of five years—and consequently convicted of a per se particularly serious crime—because the enhancement was not ...
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