Julio Ponce Rodriguez v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JULIO RENE PONCE RODRIGUEZ, No. 15-72055 Petitioner, Agency No. A095-199-966 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 9, 2018** San Francisco, California Before: GRABER and TALLMAN, Circuit Judges, and LEMELLE,*** District Judge. Julio Rene Ponce Rodriguez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ivan L.R. Lemelle, United States District Judge for the Eastern District of Louisiana, sitting by designation. from an immigration judge’s (“IJ”) order denying his applications for withholding, deferral, and cancellation of removal, as well as adjustment of status. We review questions of law de novo and review factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. Rodriguez first alleges that the IJ and BIA erred by denying his application for withholding of removal under the Convention Against Torture (“CAT”) because he has not been convicted of a “particularly serious crime.” Under 8 U.S.C. § 1231(b)(3)(B)(ii), aliens convicted of particularly serious crimes are barred from obtaining withholding of removal under CAT. “[A] ‘particularly serious crime’ determination is inherently discretionary and is to be reviewed under the abuse-of-discretion standard.” Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). Rodriguez asserts that the IJ erred by not analyzing whether Petitioner is a “danger to the community.” But we have held that “[t]he applicable legal standard for determining whether the alien has committed a particularly serious crime no longer requires the BIA to engage ‘in a separate determination to address whether the alien is a danger to the community.’” Anaya-Ortiz v. Holder, 594 F.3d 673, 679 (9th Cir. 2010) (quoting In Re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2 2007)). Thus, because the agency applied the correct legal standard, see Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc), we cannot say that it abused its discretion in finding that Petitioner’s conviction for assault with a deadly weapon under California Penal Code § 245(a)(1) was a “particularly serious crime,” see Pechenkov, 705 F.3d at 448. 2. Rodriguez next contends that the IJ and BIA erred in holding that he is ineligible for deferral of removal under CAT because (1) he provided evidence concerning the ineffectiveness of the Salvadoran government in stopping torture and (2) they failed to consider the entire record. “To be eligible ...

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