DAVID FLORES-VEGA, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 14-70690
Agency No. A096-106-096
United States Court of Appeals, Ninth Circuit
August 2, 2019
Before: Michael Daly Hawkins and William A. Fletcher, Circuit Judges, and Richard Seeborg, District Judge. Opinion by Judge W. Fletcher
FOR PUBLICATION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 16, 2019 Seattle, Washington
Filed August 2, 2019
*SUMMARY**
Immigration
Denying David Flores-Vega‘s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) Flores-Vega‘s conviction under
Under
The panel concluded that the BIA abused its discretion in concluding that Flores-Vega‘s conviction was also a particularly serious crime that made him ineligible for withholding of removal. The panel explained that where, as here, a withholding applicant was sentenced to fewer than five years imprisonment for an aggravated felony conviction, the BIA may determine that the conviction qualifies as a particularly serious crime. The applicable legal standard is based on a list of factors the BIA set forth in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982). The panel concluded that the BIA misapplied the Frentescu factors in two key respects: 1) it failed to engage in a case-specific factual analysis of the circumstances and underlying facts of the conviction; and 2) it erroneously looked at the potential penalty for a violation, but the relevant factor instructs the agency to examine the type of sentence imposed.
Nonetheless, the panel found no error in the BIA‘s alternate ground that Flores-Vega failed to carry his burden of showing eligibility for withholding of removal. First, the panel rejected the government‘s contention that the court lacked jurisdiction to review the merits of Flores-Vega‘s withholding claim. Under
Next, the panel concluded that substantial evidence supported the denial of withholding, concluding that Flores-Vega failed to establish a clear probability of future persecution based on a protected ground. The panel acknowledged testimony from Flores-Vega and witnesses on his behalf that he would be targeted because people in Mexico would know he came from the United States and would assume his family had money for a ransom, as well as testimony about general conditions of violence related to gangs and an ongoing land dispute in his hometown. However, the panel concluded that there was no evidence in the record that the danger he may face had the required nexus to a protected ground.
Finally, the panel concluded that the BIA‘s denial of Flores-Vega‘s application for protection under CAT is also supported by substantial evidence, concluding that he had not shown that he is more likely than not to be tortured in Mexico with the consent or acquiescence of a public official.
COUNSEL
Randy J. Tanner (argued) and Matthew B. Hayhurst, Boone Karlberg PC, Missoula, Montana, for Petitioner.
Matthew J. Glover (argued) and David H. Wetmore, Trial Attorneys; John S. Hogan, Assistant Director. Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
W. FLETCHER, Circuit Judge:
We are asked to decide whether a conviction under
I. Background
David Flores-Vega is a native and citizen of Mexico. He entered the United States in June 2002 when he was sixteen years old and adjusted his status to lawful permanent resident on November 26, 2003.
In September 2009, Flores-Vega pleaded guilty to violating
(1) A person commits the crime of strangulation if the person knowingly impedes the normal breathing or circulation of the blood of another person by:
(a) Applying pressure on the throat, neck or chest of the other person; or
(b) Blocking the nose or mouth of the other person.
The information in Flores-Vega‘s case reads: “The defendant, on or about September 12, 2009, in Marion County, Oregon, did unlawfully and knowingly impede the normal breathing of [the victim] by applying pressure on the throat and neck of [the victim].” On September 21, 2009, Flores-Vega signed a “Petition to Enter Plea.” On the form, in the blank following the printed words “The factual basis for my guilt and my plea:,” the words “as alleged” are written by hand. The court accepted the plea on September 25, 2009. Flores-Vega was given a suspended sentence of 365 days of imprisonment and 36 months of probation.
The Department of Homeland Security (“DHS“) issued a Notice to Appear and initiated removal proceedings on November 18, 2009. DHS charged Flores-Vega as removable under
Flores-Vega contested his removability, arguing that his conviction under
Flores-Vega applied for defensive immigration relief in the form of asylum; withholding of removal under the INA; and protection under the Convention Against Torture (“CAT“), which includes withholding and deferral of removal. After two venue transfers, Flores-Vega appeared for a merits hearing before a new IJ. Flores-Vega testified through an interpreter, as did his mother, his uncle, and the pastor of his church. Regarding his criminal conviction, Flores-Vega testified that he was falsely accused and had never committed the crime of strangulation, but that his attorney had advised him to plead guilty to “get out faster” and had not told him the “consequences” of a guilty plea. Regarding his fear of returning to Mexico, Flores-Vega testified that residents of his hometown were involved in a violent land dispute with a neighboring town. He further testified that all of Mexico was unsafe due to crime and that he was afraid he would be kidnapped because people in Mexico would assume his family in the United
On September 23, 2013, the IJ denied relief and ordered Flores-Vega removed to Mexico. The IJ found Flores-Vega credible, with the exception of his denial that he had committed the crime of strangulation, and found the other witnesses credible. The IJ did not independently evaluate whether Flores-Vega had committed a crime of violence, but cited the decision of the first IJ so holding. The IJ found Flores-Vega removable and held that he was ineligible for asylum, withholding of removal, and CAT relief because he had committed a “particularly serious crime.” In the alternative, if Flores-Vega‘s Oregon conviction did not qualify as a particularly serious crime, the IJ found he had not carried his burden to show eligibility for withholding or CAT relief.
Flores-Vega appealed to the BIA. The BIA adopted and affirmed the IJ‘s decision. First, the BIA upheld the determination that strangulation under
This petition for review followed.
II. Crime of Violence
Under
An “aggravated felony” for purposes of the INA includes “a crime of violence (as defined in
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
In Sessions v. Dimaya, 138 S. Ct. 1204, 1212–16 (2018), the Supreme Court held that
We review de novo whether a conviction qualifies as a crime of violence. See Flores-Lopez v. Holder, 685 F.3d 857, 861–62 (9th Cir. 2012). To determine whether a conviction under
We consider whether the state statute describes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
To show that a conviction does not qualify as a conviction for a crime of violence, a petitioner must demonstrate “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside” the scope of
Flores-Vega argues that Oregon v. Kaylor, 289 P.3d 290 (Or. Ct. App. 2012), demonstrates Oregon state courts apply the strangulation statute to non-violent conduct. In Kaylor, the defendant was a certified nursing assistant in a nursing home. Id. at 292. Kaylor began washing a resident, who suffered from dementia, and the resident resisted. Id. A second nurse offered to help. Id. The resident was “yelling” as the two nurses rolled him onto his side to clean him. Id. When the second nurse noticed that the resident had gone quiet, she looked up to see Kaylor covering his mouth. Id. The second nurse later testified that Kaylor‘s hand remained in place for ten seconds, during which time the resident “was bright red in the face” and “looked terrified,” as if he could not breathe. Id. The court noted that “[t]he state presented no evidence that the victim had difficulty breathing after defendant removed her hand from his mouth.” Id. at 295. Kaylor was convicted by a jury of violating
Kaylor‘s conduct, as described by the state court, was plainly “capable of hurting or causing injury.” See Ortega-Mendez, 450 F.3d at 1016 (emphasis added). Though the resident may not have suffered lasting physical harm, he turned “bright red” and “looked terrified” during the encounter. See Kaylor, 289 P.3d at 292. The force used in Kaylor goes beyond “mere offensive touching.” See Ortega-Mendez, 450 F.3d at 1017. Flores-Vega points to no other case demonstrating that
The application of the statute to non-violent conduct is not “evident from its text.” See Grisel, 488 F.3d at 850. To be convicted under the statute, a person must “knowingly impede[] the normal breathing or circulation of the blood of another person.”
Strangulation, as defined at
III. Particularly Serious Crime
Flores-Vega applied for defensive relief in the form of asylum, withholding of removal, and protection under CAT in the event he was found removable. A noncitizen convicted of a “particularly serious crime” is barred from a grant of asylum and from withholding of removal under the INA or CAT.
For purposes of asylum, an aggravated felony is per se a particularly serious crime.
The analysis is different for withholding of removal. An aggravated felony is per se a particularly serious crime if the withholding applicant was sentenced to a term of imprisonment of at least five years.
Pursuant to
The applicable legal standard is based on the BIA‘s decision in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982), as subsequently modified by the BIA. Anaya-Ortiz, 594 F.3d at 679. Frentescu lists the factors to consider as: “[the] nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.” Frentescu, 18 I. & N. Dec. at 247. Under a BIA regulation promulgated after Frentescu, the final factor does not trigger an independent inquiry. Instead, “an alien who has been convicted of a particularly serious crime shall be considered to constitute a danger to the community.”
The BIA misapplied the Frentescu factors in two key respects. First, in examining “the circumstances and underlying facts of the conviction,” the BIA failed to engage in a case-specific factual analysis. We have previously held that the BIA‘s particularly serious crime determination cannot rest solely on the elements of conviction. In Afridi v. Gonzales, 442 F.3d 1212, 1220 (9th Cir. 2006), overruled on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008), we held that the BIA committed reversible error where it “failed to engage in a case-specific analysis” and instead “generalized to conclude that the type of crime committed by [the petitioner] was particularly serious,” in that case, “unlawful sexual intercourse with a minor.” Similarly, in Blandino-Medina v. Holder, 712 F.3d 1338, 1346 (9th Cir. 2013), we held that the BIA may not designate certain crimes as “particularly serious crimes per se” by relying solely on the elements of the offense. We held that the BIA must instead engage in Frentescu‘s “case-by-case analysis.” Id. at 1347.
The BIA failed to do so here. The BIA explicitly adopted the IJ‘s analysis, which relied on the BIA‘s earlier decision in Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA 2007), to hold that “the elements of the offense alone can establish that the offense, by its nature, qualifies as particularly serious.” But our decision in Blandino-Medina rejected Matter of N-A-M- to the extent it so held. See Blandino-Medina, 712 F.3d at 1347–48.
The BIA‘s analysis did nothing to correct the IJ‘s error. The BIA wrote that the crime “likely induced great fear in his victim” and that it was concerned by “the bodily harm that the victim suffered.” These statements are based on pure conjecture. The BIA had no evidence of the victim‘s subjective fear or bodily harm. Because Flores-Vega‘s own account of the crime was found not credible, the BIA had only the information filed in the criminal case, which simply restated the statutory definition of the crime with the victim‘s name inserted. As in Afridi, “there is nothing in the BIA‘s analysis regarding [Flores-Vega‘s] conviction for [strangulation] that would separate it from an analysis regarding any other person‘s conviction for the same offense.” See Afridi, 442 F.3d at 1219. The BIA relied on the elements of the crime and then imagined facts that might have existed to support the conviction. Neither constitutes “proper evidence” in this context. See Avendano-Hernandez, 800 F.3d at 1077.
Second, the BIA erroneously looked at the potential penalty for a violation of
It is not our role to “reweigh the evidence and reach our own determination about the crime‘s seriousness.” Avendano-Hernandez, 800 F.3d at 1077 (citation omitted). But it is our role to ensure that the BIA “relie[s] on the appropriate factors and proper evidence” in determining
IV. Withholding of Removal and CAT Relief
We nonetheless deny Flores-Vega‘s petition for review because we find no error in the BIA‘s alternate ground that Flores-Vega failed to carry his burden of showing eligibility for withholding of removal or for protection under CAT.
A. Jurisdiction
To start, we reject the government‘s contention that we lack jurisdiction to review the merits of Flores-Vega‘s claim for withholding of removal. We have no jurisdiction to review “any final order of removal against an alien who is removable by reason of having committed” an aggravated felony.
B. Discussion
We review for substantial evidence factual findings underlying the denial of a withholding or CAT claim. Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir. 2005) (citation omitted). We uphold the agency‘s determination “unless the evidence presented would compel a reasonable finder of fact to reach a contrary result.” Id. (quoting Singh-Kaur v. INS, 183 F.3d 1147, 1149–50 (9th Cir. 1999)). “Where, as here, the BIA cites [Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994)] and also provides its own review of the evidence and law, we review both the IJ‘s and the BIA‘s decisions.” Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011).
To show eligibility for withholding of removal under the INA, an applicant bears the burden of proving that his “life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Flores-Vega does not claim to have previously suffered persecution in Mexico. An applicant who has not suffered past persecution must show a fear of future persecution that is “both subjectively genuine and objectively reasonable.” Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010). Only the objective prong is at issue here. To meet that prong, the applicant must show either that he or she will be “singled out individually for persecution” or that there is a “‘pattern or practice’ of persecution against the group to which he belongs in his home country, such that, even without any evidence of individual targeting, his fear of persecution is deemed reasonable.” See Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009) (citing
Substantial evidence supports the BIA‘s determination that Flores-Vega cannot satisfy the objective prong. There is no evidence in the record that the danger Flores-Vega may face in Mexico has the required nexus to a protected ground. When asked why Flores-Vega would be subjected to violence in Mexico, both he and his uncle testified that he would be targeted because people in Mexico would know he came from the United States and would assume his family had money for a ransom. Flores-Vega, his mother, and his pastor also cited general conditions of violence related to gangs and an ongoing land dispute in Flores-Vega‘s hometown.
For purposes of our decision, we accept that Flores-Vega may be in danger if he is removed to Mexico. But the danger is not on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien‘s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.“); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (holding that “returning Mexicans from the United States” was not a cognizable social group for purposes of establishing a protected ground).
Flores-Vega‘s application for immigration relief also listed his religious identity as a protected ground. But neither he nor any other witness offered testimony that he would be singled out for persecution as an evangelical Christian. Nor do country conditions documents in the record compel the conclusion that there is a “pattern or practice” of persecution against evangelical Christians such that his fear of persecution is reasonable. See Wakkary, 558 F.3d at 1060.
The BIA‘s determination that Flores-Vega failed to show eligibility for withholding of removal is supported by substantial evidence.
The BIA‘s denial of Flores-Vega‘s application for protection under CAT is also supported by substantial evidence. To qualify for withholding or deferral under CAT, an applicant must show it is “more likely than not” that he would be tortured in his country of removal.
Flores-Vega and his witnesses testified to general conditions of violence in Mexico. But he has not shown that he is more likely than not to be tortured with the consent or acquiescence of a public official. He has not claimed past mistreatment in Mexico, let alone mistreatment rising to the level of torture. In terms of future torture, he has not shown a greater risk to him than any other Mexican national deported from the United States such that torture would be “more likely than not” in his case. See Delgado-Ortiz, 600 F.3d at 1152 (“Petitioners’ generalized evidence of violence and crime in Mexico is not particular to Petitioners and is insufficient to meet [the CAT] standard.“).
Conclusion
We hold that a conviction for strangulation under
We hold that the BIA abused its discretion in designating Flores-Vega‘s offense of conviction as a “particularly serious crime.” We have jurisdiction to review the BIA‘s decision on the merits that Flores-Vega did not show eligibility for withholding of removal or relief under CAT. We conclude that the BIA‘s denial of Flores-Vega‘s application for relief is supported by substantial evidence.
PETITION FOR REVIEW DENIED.