Juan Oregon-Rico v. Eric Holder, Jr. , 594 F. App'x 394 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN OREGON-RICO, AKA Juan Nos. 12-72920
Oregon, Juan R. Oregon, AKA Juan Nos. 13-70123
Oregon Rico, AKA Juan Rico, AKA Juan
Rico Oregon, Agency No. A075-123-845
Petitioner,
MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
In these consolidated petitions for review, Juan Oregon-Rico, a native and
citizen of Mexico, petitions pro se for review of the Board of Immigration
Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s order
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of removal, and denying his motion to reopen. We have jurisdiction under 8
U.S.C. § 1252. We review de novo questions of law and due process claims, for
abuse of discretion the denial of a motion to reopen, and for substantial evidence
the agency’s factual findings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th
Cir. 2005). We deny the petitions for review.
The agency correctly determined that Oregon-Rico’s conviction under
California Health and Safety Code § 11351 for possession of cocaine for sale
constitutes a drug trafficking aggravated felony under 8 U.S.C. § 1101(a)(43)(B).
See Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir. 2008) (“[P]ossession of a
controlled substance with the intent to sell contains a trafficking element and is an
aggravated felony.”). This conviction renders him ineligible for asylum, see 8
U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and cancellation of removal, see 8 U.S.C.
§ 1229b(a)(3).
The agency used the correct standard and did not err in determining Oregon-
Rico’s drug trafficking offense is presumptively a particularly serious crime that
renders him ineligible for withholding of removal, see id. § 1231(b)(3)(B);
Rendon, 520 F.3d at 976 (“[A]n aggravated felony containing a drug trafficking
element is presumed to be a particularly serious crime which would make [the
applicant] ineligible for withholding of removal.”), and Oregon-Rico has not
2 12-72920 & 13-70123
rebutted this “extraordinarily strong presumption,” Miguel-Miguel v. Gonzales,
500 F.3d 941, 947 (9th Cir. 2007).
Substantial evidence supports the agency’s denial of Oregon-Rico’s
Convention Against Torture claim because he failed to establish it is more likely
than not he would be tortured by or with the consent or acquiescence of the
government if returned to Mexico. See Silaya v. Mukasey, 524 F.3d 1066, 1073
(9th Cir. 2008).
The BIA did not abuse its discretion in denying Oregon-Rico’s motion to
reopen based on ineffective assistance where he failed to establish prejudice arising
from any alleged ineffective assistance by his former counsel. See Mohammed,
400 F.3d at 793-94 (“[P]rejudice results when the performance of counsel was so
inadequate that it may have affected the outcome of the proceedings.” (internal
quotation marks omitted)).
We deny Oregon-Rico’s motion for remand to the agency or referral to the
court’s mediation unit.
PETITIONS FOR REVIEW DENIED.
3 12-72920 & 13-70123