652 F. App'x 591
9th Cir.2016Background
- Milton Ivan Garcia, a lawful presence subject, pled guilty to felony assault with a firearm (Cal. Penal Code § 245(a)(2)) and shooting at an unoccupied vehicle, and received a 12-year aggregate sentence (12 years imposed for assault conviction including enhancements).
- The assault conviction is categorically an aggravated felony and a crime of violence under Ninth Circuit precedent.
- The BIA dismissed Garcia’s appeal of an order of removal and denied asylum, withholding of removal, and CAT relief; Garcia petitioned for review.
- The BIA treated the assault conviction as a "particularly serious crime" for asylum and withholding purposes, relying on the aggregate sentence including non-recidivism enhancements.
- The IJ denied Garcia’s CAT claim on the merits, finding he failed to show it is more likely than not he would be tortured on return to El Salvador or that the government would acquiesce.
Issues
| Issue | Garcia's Argument | Government's Argument | Held |
|---|---|---|---|
| Asylum eligibility given aggravated felony/present conviction | Conviction should not bar asylum challenge or relief | Assault conviction is an aggravated felony and a particularly serious crime, making asylum unavailable | Dismissed: court lacks jurisdiction to review asylum challenge tied to firearm conviction |
| Whether withholding is barred because conviction is a "particularly serious crime" under § 1231(b)(3)(B) | Sentence for the aggravated felony was 3 years (without enhancements), so not >=5 years; thus not automatically "particularly serious" | Aggregate term includes non-recidivism enhancements; aggregate sentence meets the 5-year threshold | Dismissed: BIA correctly treated the conviction as statutorily a "particularly serious crime" (aggregated 12-year sentence) |
| Whether BIA should apply discretionary Frentescu factors despite statutory finding | Urged BIA to apply Matter of Frentescu factors to find conviction not particularly serious | Once conviction is statutorily "particularly serious," BIA need not separately apply discretionary Frentescu analysis | Dismissed: No occasion for Frentescu analysis after statutory determination |
| CAT relief: likelihood of torture or government acquiescence | Argues likely to be tortured upon return and government would acquiesce | IJ found record did not establish likelihood of torture or acquiescence | Denied on merits: record does not compel contrary conclusion |
Key Cases Cited
- United States v. Heron-Salinas, 566 F.3d 898 (9th Cir. 2009) (assault with a firearm under Cal. Penal Code § 245(a)(2) is categorically a crime of violence and an aggravated felony)
- Bolanos v. Holder, 734 F.3d 875 (9th Cir. 2013) (jurisdictional limits under 8 U.S.C. § 1252(a)(2)(C) and retention to decide jurisdiction/questions of law)
- Konou v. Holder, 750 F.3d 1120 (9th Cir. 2014) (BIA may consider non-recidivism sentencing enhancements in assessing the sentence imposed)
- Edu v. Holder, 624 F.3d 1137 (9th Cir. 2010) (denials of deferral under CAT are merits decisions and subject to judicial review)
- INS v. Elias-Zacharias, 502 U.S. 478 (U.S. 1992) (reviewing court may reverse BIA only if the record compels a contrary conclusion)