Luis Buenrostro-Hernandez v. Merrick Garland


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS MARTIN BUENROSTRO-HERNANDEZ, No. 15-70312 AKA Luis Buenrostro, AKA Osvaldo Buenrostro, AKA Luis Buenrostro Hernandez, AKA Luis Agency No. A091-837-798 Guenrostro, AKA Louis Wolfe, Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 8, 2021** San Francisco, California Before: LUCERO,*** IKUTA, and VANDYKE, Circuit Judges. Luis Martin Buenrostro-Hernandez (Petitioner) petitions for review of the Board of Immigration Appeals’ (BIA) January 2, 2015, final order of removal that * 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 Carlos F. Lucero, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. dismissed his appeal of an Immigration Judge’s (IJ) decision denying his applications for cancellation of removal, asylum, withholding of removal, request for protection under the Convention Against Torture (CAT), and request for a continuance. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.1 We review the BIA’s decision affirming the IJ’s denial of a continuance for abuse of discretion, Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009), and we may overturn the BIA’s decision only if it acted arbitrarily, irrationally, or contrary to law. Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011). We review the BIA’s determination of purely legal questions de novo, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000), and its factual findings for substantial evidence. Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019). Under this deferential standard, factual findings are treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Singh v. Lynch, 802 F.3d 972, 974 (9th Cir. 2015), overruled on other grounds by Alam v. Garland, 11 F.4th 1133, 1136 (9th Cir. 2021). Accordingly, in order to reverse the BIA’s finding under substantial evidence review, “we must find that the evidence not only supports that conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Here, the record does not compel the conclusion that the 1 The parties are familiar with the facts, so we repeat them here only as necessary. 2 agency’s decisions were incorrect. First, substantial evidence supports the BIA’s determination that Petitioner’s 2002 conviction under California Health and Safety Code § 11366 renders him ineligible for cancellation of removal and asylum because it is an aggravated felony.2 Petitioner disputes before this court whether his § 11366 conviction constitutes an aggravated felony, relying in part on ambiguity in the record from missing conviction records. But Petitioner’s attorney conceded before the IJ that the § 11366 conviction …

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