NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE GONZALEZ-MARTINEZ, No. 21-292 Agency No. Petitioner, A092-709-359 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 17, 2023 San Francisco, California Before: WARDLAW, M. SMITH, and RAYES.** Jose Gonzalez-Martinez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) final order of removal, which dismissed his appeal of the Immigration Judge’s (IJ) denial of his applications for asylum, withholding of removal, and protection under the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. Convention Against Torture (CAT). Because the parties are familiar with the facts, we do not recount them here except as necessary for context. “Where 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.’” Reyes v. Lynch, 842 F.3d 1125, 1140 (9th Cir. 2016) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny review. 1. The agency did not abuse its discretion by concluding that Gonzalez- Martinez’s robbery conviction was a particularly serious crime, foreclosing asylum and withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (noting that the abuse of discretion standard applies to the BIA’s particularly serious crime determination). Where, as here, the petitioner’s crime of conviction is not an aggravated felony, the agency applies “a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious.” Bare, 975 F.3d at 961. The agency considers (1) “the nature of the conviction,” (2) “the type of sentence imposed,” and (3) “the circumstances and underlying facts of conviction.” In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007), overruled in part on other grounds by Blandino-Medina v. Holder, 712 F.3d 1338, 1347–48 (9th Cir. 2013). Gonzalez-Martinez argues only that that the agency failed to properly consider the third factor. We disagree. The agency adequately accounted for the circumstances and underlying facts of Gonzalez-Martinez’s 2 21-292 conviction—including his role as the getaway driver and the fact that he was not armed—and reasonably concluded that these circumstances did not lessen the severity of the crime. At bottom, Gonzalez-Martinez’s arguments go to the weight of the evidence rather than the agency’s application of the legal standard, which exceeds the narrow scope of our review. See Bare, 975 F.3d at 961 (explaining that we lack jurisdiction over the agency’s ultimate particularly serious crime determination, and instead are limited to assessing …
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