DANILO ALBERTO MAIRENA, AKA Danilo Alberto Mairewa, AKA Danilo Alberto Mariena, AKA Danilo Marieno v. WILLIAM P. BARR, Attorney General
No. 15-72833
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 7, 2019
Agency No. A027-142-897
FOR PUBLICATION
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted November 14, 2018*
Pasadena, California
Filed March 7, 2019
Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Carol Bagley Amon,** District Judge.
Per Curiam Opinion
SUMMARY***
Immigration
Denying Danilo Mairena‘s petition for review of a decision of the Board of Immigration Appeals that upheld an immigration judge‘s denial of withholding of removal, protection under the Convention Against Torture (“CAT“), and related relief, the panel held that it is appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime.
Mairena was convicted of willful infliction of corporal injury upon the mother of his child with a prior conviction, in violation of
In removal proceedings, the BIA concluded that (1) Mariena was statutorily ineligible for withholding of removal because he was sentenced to an aggregate term of five years of imprisonment for his corporal injury conviction, factoring in the one-year enhancement; and (2) the IJ did not clearly err in determining that Mairena failed to establish that he would more likely than not be tortured if he returned to Nicaragua.
Under
Mairena did not dispute that his conviction constituted an aggravated felony, but argued that the BIA erred by considering the one-year sentencing enhancement in deciding that he was sentenced to an aggregate term of imprisonment of five years—and consequently convicted of a per se particularly serious crime—because the enhancement was not an element of the offense and because the statutory maximum for his offense was four years.
The panel noted that aggravated felonies with resulting sentences of at least five years are per se particularly serious and, by contrast, aggravated felonies resulting in sentences fewer than five years are not per se particularly serious and require a case-by-case analysis. The panel also observed that this court has already held that it is appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a particularly serious crime on a case-by-case basis.
The panel now clarified that it is also appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime. The panel explained that Mairena‘s contention that the BIA could not consider his sentencing enhancement was foreclosed by the plain language of
Moreover, the panel noted that, even if it accepted Mairena‘s contention that it should look to the statutory maximum in interpreting
The panel also concluded that substantial evidence supported the BIA‘s conclusion that Mairena was ineligible for CAT relief. The panel concluded that the IJ was not required to conduct a separate credibility analysis in adjudicating the CAT claim, explaining that the IJ was entitled to rely on the adverse credibility determination in denying CAT relief, provided that the IJ considered other evidence in the record on country conditions in Nicaragua. The panel concluded that the IJ did so in this case. The panel also concluded that the record did not compel the conclusion that Mairena would more likely than not be tortured upon return to Nicaragua.
COUNSEL
Tania Pham, Law Offices of Tania T. Pham, Woodland Hills, California, for Petitioner.
Benjamin J. Zeitlin, Attorney; Carl McIntyre, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
PER CURIAM:
Petitioner Danilo Mairena, a native and citizen of Nicaragua, petitions for review of a final order of the Board of Immigration Appeals (“BIA“) dismissing his appeal of the Immigration Judge‘s (“IJ“) denial of his applications for withholding of removal, protection under the Convention Against Torture (“CAT“), and related relief. We have jurisdiction under
BACKGROUND
Mairena, a native and citizen of Nicaragua born in 1979, entered the United
On August 9, 2010, Mairena was convicted of willful infliction of corporal injury upon the mother of his child with a prior conviction, in violation of
On October 10, 2013, the Department of Homeland Security served Mairena with a Notice to Appear and charged him as removable based on those two felony convictions under
On May 15, 2014, Mariena applied for asylum, withholding of removal, and CAT protection. In his application, Mairena alleged that he feared that the Sandinistas would kill him because his family was previously persecuted by the Sandinistas and was currently fighting with President Daniel Ortega to recover seized family property.3 On October 15, 2014, Mairena applied for adjustment of status and a waiver of inadmissibility.
On April 1, 2015, the IJ denied all relief. As relevant to this petition, the IJ concluded as follows: (1) Mairena was statutorily ineligible for withholding of removal because he was sentenced to an aggregate term of eight years of imprisonment for his two felony convictions, and therefore convicted of a per se particularly serious crime; and (2) Mariena failed to carry his burden of proving that he would more likely than not be tortured if he returned to Nicaragua, and thus CAT protection was not warranted.
On August 27, 2015, the BIA affirmed the IJ‘s decision and dismissed Mairena‘s appeal. As relevant to this petition, the BIA concluded as follows: (1) Mariena was statutorily ineligible for withholding of removal because he was sentenced to an aggregate term of five years of imprisonment for his corporal injury conviction, factoring in the one-year enhancement; and (2) the IJ did not clearly err in determining that Mairena failed to establish that he would more likely than not be
On September 14, 2015, Mairena timely petitioned this Court for review.
JURISDICTION AND STANDARD OF REVIEW
We lack jurisdiction to review “any final order of removal against an alien who is removable” because he committed an aggravated felony, see
We also have jurisdiction to review the BIA‘s denial of CAT protection where, as here, “the IJ did not rely on [petitioner‘s] conviction . . . but instead denied relief on the merits.” Alphonsus v. Holder, 705 F.3d 1031, 1036–37 (9th Cir. 2013), abrogated on other grounds as recognized in Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018).
Where “the BIA conducts its own review of the evidence and law, rather than adopting the IJ‘s decision, our review is limited to the BIA‘s decision, except to the extent the IJ‘s opinion is expressly adopted.” Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015) (quoting Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012)). “[W]e treat the incorporated parts of the IJ‘s decision as the BIA‘s.” Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007).
We review legal questions de novo and factual findings, including adverse credibility determinations, for substantial evidence. Vilchez v. Holder, 682 F.3d 1195, 1198–99 (9th Cir. 2012); Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .”
DISCUSSION
I. The Particularly Serious Crime Determination
In general, an alien is entitled to withholding of removal if “the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed,
an alien has been convicted of a particularly serious crime.
Under the statute, the appropriate analytical lens depends on the length of the sentence imposed. “[A]ggravated felonies with resulting sentences of at least five years are per se particularly serious . . . .” Guerrero, 908 F.3d at 545. By contrast, “aggravated felonies resulting in sentences fewer than five years are not per se particularly serious and still require a case-by-case analysis . . . .” Blandino-Medina, 712 F.3d at 1347 (quoting Afridi v. Gonzales, 442 F.3d 1212, 1220 n.4 (9th Cir. 2006)).4
Mairena does not dispute that his conviction for corporal injury constitutes an aggravated felony.5 He argues, however, that the BIA erred by considering the one-year sentencing enhancement in deciding that he was sentenced to an aggregate term of imprisonment of five years—and consequently convicted of a per se particularly serious crime—because the enhancement was not an element of the offense and because the statutory maximum for his offense is four years. Instead, he contends, the BIA should have engaged in a case-by-case analysis.
We have already held that it is appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner is convicted of a particularly serious crime on a case-by-case basis. Konou, 750 F.3d at 1128. As this Court explained, the case-by-case analysis calls for analyzing the “type of sentence imposed,” and “[a]n enhanced sentence by its plain language can be considered a type of sentence.” Id. We thus rejected the argument that “the BIA cannot consider a sentencing enhancement when it determines whether a crime is particularly serious.” Id.
We now clarify that it is also appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime. See Garcia v. Lynch, 652 F. App‘x 591, 593 (9th Cir. 2016) (applying Konou to a per se particularly serious crime determination). Mairena‘s contention that the BIA could not consider his sentencing enhancement is foreclosed by the plain language of the statute. Section 1231(b)(3)(B) asks whether the individual has been convicted of an aggravated felony for which he “has been sentenced to an aggregate term of imprisonment of at least 5 years.”
Moreover, even if we accepted Mairena‘s contention that we should look to the statutory maximum in interpreting
Accordingly, the BIA applied the correct legal standard when it determined that Mairena was convicted of a per se particularly serious crime and was therefore ineligible for withholding of removal.
II. The Denial of CAT Protection
An individual who is ineligible for withholding of removal is nevertheless eligible for “deferral of removal to the country where he or she is more likely than not to be tortured.”
The applicant bears the burden of proving that he is eligible for deferral of removal under CAT.
Substantial evidence supports the BIA‘s conclusion that Mairena was ineligible for CAT relief. First, the IJ was not required to conduct a separate credibility analysis in adjudicating Mairena‘s CAT claim. Contrary to Mairena‘s contention, the IJ was entitled to rely on the adverse credibility determination in denying CAT relief, see Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015), provided that the IJ considered other evidence in the record on country conditions in Nicaragua, Kamalthas, 251 F.3d at 1282–84. The IJ did so in this case. Second, the record does not compel the conclusion that Mairena would more likely than not be tortured upon return to Nicaragua. Although both Mairena and his family expressed fear that he would be tortured because of his family‘s pro-Contra association, (1) the persecution for which his family received political asylum transpired thirty years ago, (2) Mairena himself was never tortured, and (3) there was no evidence that Mairena or anyone in his family had received threats while attempting to regain family land from the government. Mairena has not contested the accuracy of these findings on appeal; instead, he essentially seems to disagree with the agency‘s conclusion. But “our task ‘is to determine whether there is substantial evidence to support the BIA‘s finding, not to substitute an analysis of which side in the factual dispute we find more persuasive.‘” Singh, 802 F.3d at 974–75 (quoting Molina-Morales v. I.N.S., 237 F.3d 1048, 1050 (9th Cir. 2001)). The BIA also concluded that, while the Department of State report indicates that some former Contras were likely killed by the Nicaraguan government, those individuals—unlike Mairena—were well known and involved in armed confrontations. The “BIA‘s interpretation of the Report is entitled to deference.” Konou, 750 F.3d at 1125; see also Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th Cir. 2008) (per curiam) (denying CAT relief where the Department of State reports indicate that torture has occurred, but “do not indicate that [petitioner] would face any particular threat of torture beyond that of which all citizens of Nepal are at risk“). Finally, Mairena has not suggested on appeal that either the IJ or the BIA failed to consider relevant evidence in the record.
Accordingly, substantial evidence supports the BIA‘s determination that Mairena failed to establish that he would more likely than not be tortured in Nicaragua.
Petition DENIED.