Roberto Alvarez v. Jefferson Sessions

FILED NOT FOR PUBLICATION JUN 22 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO EDGARDO ALVAREZ, AKA No. 15-70922 Roberto Alvarez, Agency No. A043-432-572 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 4, 2018 Pasadena, California Before: FISHER and OWENS, Circuit Judges and MOLLOY,** District Judge. Roberto Edgardo Alvarez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s ruling that he is ineligible for cancellation of removal, asylum, withholding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. of removal and relief under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings. Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir. 2011). We review de novo due process claims and questions of law. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny in part and grant in part the petition for review. 1. Substantial evidence supports the BIA’s denial of Alvarez’s cancellation of removal and asylum claims. “An applicant for asylum or for cancellation of removal is not eligible for these forms of relief if he has been convicted of an aggravated felony.” Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008). A state drug crime qualifies as an aggravated felony if it “contains a trafficking element” or would be punishable “as a felony under the federal drug laws.” Id. at 974; see Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004). Here, Alvarez was convicted for possession of cocaine for sale under California Health and Safety Code § 11351.5, a drug trafficking aggravated felony under 8 U.S.C. § 1101(a)(43)(B) that renders him ineligible for asylum and cancellation of removal. See Rendon, 520 F.3d at 976. Because of this conviction, Alvarez does not qualify for first-offender treatment under the Federal First Offender Act, 18 U.S.C. § 3607(c). See Nunez-Reyes v. Holder, 646 F.3d 684, 694-95 (9th Cir. 2 2011) (en banc) (court may not accord FFOA treatment to crimes that are “not . . . possession crime[s] at all” and that are “qualitatively different from” the crime of simple possession). 2. Substantial evidence also supports the BIA’s conclusion that Alvarez is ineligible for withholding of removal based on his two proposed social groups. First, Alvarez claims membership in a particular social group of former gang members with gang tattoos. Such a group, however, does not qualify as a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1137–38 (9th Cir. 2016) (proposed social group of former gang members who have returned to El Salvador is not cognizable); Arteaga v. Mukasey, 511 F.3d ...

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