Danilo Mairena v. William Barr, 917 F.3d 1119

Background

Petitioner Danilo Mairena, a Nicaraguan national and U.S. lawful permanent resident, was convicted in California of willful infliction of corporal injury on the mother of his child with a prior conviction (Cal. Penal Code § 273.5(e)(1)) and sentenced to four years plus a one‑year weapon enhancement (aggregate five years). He also received a separate three‑year sentence for witness dissuasion.
DHS initiated removal proceedings based on aggravated‑felony convictions; the IJ found Mairena removable and denied asylum, withholding of removal, CAT relief, and related relief.
The BIA affirmed: it concluded Mairena was statutorily ineligible for withholding because his aggravated‑felony conviction carried an aggregate sentence of five years (counting the one‑year enhancement), making it a per se particularly serious crime; the BIA also upheld denial of CAT relief for lack of showing torture more likely than not.
Mairena argued the BIA improperly counted the sentencing enhancement (not an element of the offense) when determining the five‑year aggregate and that the statutory maximum for his offense was four years, so the crime should require case‑by‑case review rather than be treated as per se particularly serious.
The Ninth Circuit denied review of the removal order, holding (1) the BIA correctly considered the sentence imposed (including the enhancement) because § 1231(b)(3)(B) refers to the aggregate term of imprisonment actually imposed and (2) substantial evidence supported denial of CAT protection.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA may count sentencing enhancements when deciding if an aggravated felony carries an aggregate sentence of at least five years (per se particularly serious crime)	Mairena: BIA erred by counting the one‑year enhancement because it is not an element of the offense and statutory maximum was four years; thus case‑by‑case analysis required	Government: § 1231(b)(3)(B) looks to the aggregate term actually imposed; enhancements affect the imposed sentence and may be counted	Held: BIA may consider sentencing enhancements; the statute focuses on the aggregate sentence imposed. The court affirmed per se particularly serious finding.
Whether the court should look to statutory maximum rather than imposed sentence when applying § 1231(b)(3)(B)	Mairena: statutory maximum governs; his offense’s max was four years so not per se	Government: statute references the aggregate term of imprisonment imposed, not the statutory maximum	Held: Even if statutory maximum applied, Mairena’s statutory maximum was five years under § 273.5(e)(1) (prior conviction), so result same.
Whether the BIA/IJ erred in denying CAT relief by relying on adverse credibility without a separate analysis	Mairena: IJ needed a separate CAT credibility analysis	Government: IJ may rely on adverse credibility for CAT denial if it also considers country‑condition evidence	Held: IJ could rely on adverse credibility and did consider country‑condition evidence; no separate analysis required.
Whether substantial evidence supports conclusion that torture is not more likely than not in Nicaragua	Mairena: past family persecution and current property dispute cause realistic risk of torture	Government: record (DoS reports, lack of threats, no past torture of petitioner) does not compel CAT relief	Held: Substantial evidence supports denial; petitioner failed to show torture more likely than not.

Key Cases Cited

Bolanos v. Holder, 734 F.3d 875 (9th Cir.) (court retains jurisdiction to decide jurisdictional and legal questions)
Konou v. Holder, 750 F.3d 1120 (9th Cir.) (BIA may consider sentencing enhancements in case‑by‑case particularly serious‑crime analysis)
Blandino‑Medina v. Holder, 712 F.3d 1338 (9th Cir.) (aggravated felonies under five years require case‑by‑case Frentescu analysis)
Guerrero v. Whitaker, 908 F.3d 541 (9th Cir.) (distinguishing per se particularly serious crimes by sentence length)
Singh v. Lynch, 802 F.3d 972 (9th Cir.) (IJ may rely on adverse credibility determination when denying CAT relief)
Corona‑Sanchez, 291 F.3d 1201 (9th Cir.) (distinguishing analysis for categorical aggravated‑felony inquiries from considering imposed sentences)