NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 7 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JESUS ISAAC VILLEGAS-GOMEZ, No. 19-72487 Petitioner, Agency No. A206-408-415 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 8, 2021 Pasadena, California Before: COLLINS and LEE, Circuit Judges, and BAKER,** Judge. Jesus Villegas-Gomez petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s (“IJ”) order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). As the facts are known to the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. parties, we repeat them only as necessary to explain our decision. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition. 1. Villegas-Gomez contends that the BIA erred in its determination that he had been convicted of a “particularly serious crime” rendering him ineligible for asylum or withholding of removal under the Immigration and Nationality Act or CAT. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Our review is limited to “whether ‘the agency relied on the appropriate factors and proper evidence.’” Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (quoting Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)). The BIA did not abuse its discretion. See Avendano-Hernandez, 800 F.3d at 1077. The BIA properly began its analysis by considering the offense for which Villegas-Gomez was convicted, concluding that “while the conviction is not a per se particularly serious crime, the facts and circumstances underlying the conviction render it a particularly serious crime.” The BIA applied the correct case-specific analysis under Matter of Frentescu, 18 I. & N. Dec. 244 (B.I.A. 1982), see Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011), and agreed with the IJ that Villegas- Gomez’s violent, unprovoked reaction supported finding his conviction to be for a particularly serious crime. We find no abuse of discretion in the BIA’s consideration of the factors and evidence on this issue. Further, the BIA did discuss Villegas-Gomez’s mental health, but endorsed 2 the IJ’s reasoning that it did not mitigate the seriousness of the crime, which involved a violent, unprovoked attack. Therefore, the BIA took into consideration Villegas- Gomez’s “mental condition at the time of the crime” as required by Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 (9th Cir. 2018), but properly “permitt[ed] the IJ to use his or her discretion in weighing relevant, reliable evidence of mental health.” Id. at 995. 2. Nor did the BIA err in its determination that Villegas-Gomez failed to establish eligibility for CAT protection. The BIA properly construed Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008), as …
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