Petrona Barrientos v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PETRONA DE LOS ANGELES No. 15-70544 BARRIENTOS, Agency No. A070-664-909 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 11, 2018** Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges. Petrona De Los Angeles Barrientos, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying asylum, * 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). withholding of removal, Convention Against Torture (“CAT”) relief, and special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law and for substantial evidence the agency’s factual findings. Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). We deny in part and dismiss in part the petition for review. The agency correctly determined that Barrientos’ conviction under California Health and Safety Code § 11351, for possession for sale of cocaine, is a drug trafficking aggravated felony under 8 U.S.C. § 1101(a)(43)(B), rendering her ineligible for asylum and NACARA cancellation. 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i); 8 C.F.R. § 1240.61(b); see Cabantac v. Holder, 736 F.3d 787, 790 (9th Cir. 2013) (where “the abstract of judgment or minute order specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count” (internal quotation marks and citation omitted)); United States v. Murillo-Alvarado, 876 F.3d 1022, 1027-28 (9th Cir. 2017) (Section 11351 is divisible as to its controlled substance requirement). The criminal complaint, change of plea transcript, and change of plea minute order, read in conjunction, establishes that the substance at issue was cocaine. Substantial evidence supports the BIA’s conclusion that Barrientos failed to establish she would be persecuted on account of a protected ground. See Zetino, 2 15-70544 622 F.3d at 1016 (9th Cir. 2010) (applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, in the absence of a nexus to a protected ground, petitioner’s withholding of removal claim fails. See id. Because this determination is dispositive as to Barrientos’ eligibility for withholding of removal, we do not reach her contentions regarding changed country conditions. Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). Substantial evidence also supports the BIA’s denial of CAT relief because Barrientos failed to show it is more likely than not that she would be tortured by the government of El Salvador, or with its ...

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