NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 2 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS VUTORO SAUMAILAGI MUALEVU, No. 20-73108 Petitioner, Agency No. A047-044-893 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 17, 2022 San Francisco, California Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges. Dissent by Judge BYBEE. Petitioner, Vutoro Saumailagi Mualevu, is a Fijian citizen who seeks review of an order of the Board of Immigration Appeals (“BIA”) upholding a decision of an Immigration Judge (“IJ”) denying his request for deferral of removal under the Convention Against Torture. We have jurisdiction under § 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252, and § 2242(d) of the Foreign Affairs Reform and Restructuring Act (“FARRA”), 8 U.S.C. § 1231 note. See Nasrallah v. Barr, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 140 S. Ct. 1683, 1690–91 (2020). We deny the petition. I Mualevu was admitted to the United States as a lawful permanent resident in 1999. In 2009, Mualevu was convicted in California state court of one count of attempted murder in violation of California Penal Code §§ 187(a) and 664 and three counts of assault with a deadly weapon in violation of California Penal Code § 245(a)(1), and he was sentenced to a total of 13 years in prison. In 2019, he was released from state prison into the custody of the Department of Homeland Security (“DHS”). During subsequent removal proceedings, an IJ held that Mualevu’s convictions constituted “aggravated felonies” that rendered him subject to removal and also rendered him ineligible for asylum or withholding of removal.1 Mualevu has not challenged those rulings either in his subsequent appeal to the BIA or in his petition for review in this court. The only aspect of his removal proceedings that Mualevu challenges in this court is the denial of his request for deferral of removal under the regulations 1 See United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1065–68 (9th Cir. 2018) (holding that Cal. Penal Code § 245(a)(1) is categorically a crime of violence and that a conviction under that section with a sentence of a least one year is an aggravated felony); see also 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i) (stating that an aggravated felony is a “particularly serious crime” that renders an alien ineligible for asylum); id. § 1227(a)(2)(A)(iii) (stating that an alien convicted of an “aggravated felony” is removable); id. § 1231(b)(3)(B)(ii) (stating that an alien convicted of a “particularly serious crime” is ineligible for withholding of removal). 2 implementing the Convention Against Torture. See FARRA § 2242(b) (authorizing issuance of regulations); 8 C.F.R. §§ 208.17, 1208.17. The factual predicate for that request was initially set forth in Mualevu’s written application. Mualevu claimed that his family members had participated in an unsuccessful coup against the Fijian government led …
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