Karina Bustillos v. Merrick Garland


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KARINA BUSTILLOS, No. 20-73015 Petitioner, Agency No. A042-448-169 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 7, 2021** Pasadena, California Before: KELLY,*** M. SMITH, and FORREST, Circuit Judges. Karina Bustillos seeks review of the Board of Immigration Appeals’ order denying her applications for withholding of removal and deferral of removal * 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 Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. pursuant to the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252. Ms. Bustillos argues that the Board applied the wrong legal standard when it concluded that her 1997 conviction for importing over 37 pounds of marijuana into the United States was a particularly serious crime. She argues that the Board should have categorically excluded marijuana offenses from qualifying as particularly serious crimes when it applied In re Frentescu, 18 I. & N. Dec. 244 (BIA 1982), because, in light of society’s growing acceptance of marijuana, “[i]t is likely that, had Frentescu been decided today, an exception to the suggested criteria for determining what is a ‘particularly serious crime’ might have included marijuana offenses or at least treated it differently than other hard narcotics.” She also argues the Board should have considered her rehabilitation in making the particularly serious crime determination. Finally, she argues that the Board’s conclusion that she did not meet her burden of proving that it is more likely than not that she will be tortured if she is returned to Mexico is not supported by substantial evidence. Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling. We review the Board’s particularly serious crime determination for abuse of discretion, Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012), and its identification of the appropriate legal standard de novo, United States v. Hinkson, 585 F.3d 1247, 2 1261–62 (9th Cir. 2009) (en banc). We review the Board’s denial of Ms. Bustillos’s application for deferral of removal for substantial evidence. Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020). Applying these standards, we deny the petition for review. 1. The Board applied the proper legal standard when it weighed the Frentescu factors as they currently stand to analyze whether Ms. Bustillos’s conviction was for a particularly serious crime. See Dominguez v. Barr, 975 F.3d 725, 740–41 (9th Cir. 2020). Although Ms. Bustillos raises several policy arguments for why the Attorney General might choose to revise Frentescu to categorically …

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