Jorge Herrera Fonseca v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1198 _____________ JORGE ANGEL HERRERA FONSECA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _____________ On Petition for Review of a Decision of the Board of Immigration Appeals Immigration Judge: Roxanne C. Hladylowycz (BIA-1: A088-881-362) ______________ Submitted Under Third Circuit L.A.R. 34.1(a) January 22, 2018 ______________ Before: GREENAWAY, JR., KRAUSE, Circuit Judges, and JONES, District Judge * (Opinion Filed: April 9, 2018) ______________ OPINION ** ______________ GREENAWAY, JR., Circuit Judge. * The Honorable John E. Jones III, United States District Judge for the Middle District of Pennsylvania, sitting by designation. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Jorge Angel Herrera-Fonseca appeals the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of the Immigration Judge’s (“IJ”) denial of his application for withholding of removal and Convention Against Torture (“CAT”) protection. Herrera- Fonseca argues that his aggravated felony convictions for second-degree robbery and battery do not constitute particularly serious crimes rendering him statutorily ineligible for withholding of removal. He also contends that he is eligible for withholding of removal because he was targeted for imputed nationality and religion. Finally, Herrera- Fonseca asserts that the BIA erred in determining that he waived review of his claim for CAT. We will deny Herrera-Fonseca’s petition for review. I. Facts 1 & Procedural Background A native and citizen of Mexico, Herrera-Fonseca was convicted of second-degree robbery, a felony in violation of California Penal Code §§ 211-212.5(c), and battery, a felony in violation of California Penal Code §§ 242-243(a), in 2008. Because the acts were committed in participation with a criminal street gang, his sentence was enhanced by California Penal Code § 186.22(b)(1)(C). An IJ ultimately found Herrera-Fonseca to be an aggravated felon, based on both the theft offense, pursuant to the Immigration and Nationality Act (“INA”) § 101(a)(43)(G), and a crime of violence, pursuant to INA § 101(a)(43)(F), and ordered 1 “We take our facts from the final order of the BIA, and to the extent the BIA relied upon it, the Immigration Judge’s decision.” Sesay v. Attorney Gen., 787 F.3d 215, 218 n.1 (3d Cir. 2015). 2 him removed from the United States in 2009. Nevertheless, in 2013, he re-entered the United States without inspection, and filed an application for asylum and for withholding of removal, expressing a fear of persecution and torture upon returning to Mexico. The matter was therefore submitted to an IJ for determination. After several hearings before the IJ, the BIA remanded requiring the IJ to provide a more definitive statement of the basis for its decision-making. The BIA then dismissed Herrera-Fonseca’s appeal. This timely petition followed. II. Jurisdiction The BIA had jurisdiction pursuant to 8 C.F.R. §§ 1208.31(e) and 1003.1(b)(3). We have jurisdiction pursuant to 8 U.S.C. § 1252. “Because the BIA issued its own opinion, we review its decision rather than that of the IJ.” Patel v. Attorney ...

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