Julio Ponce Rodriguez v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO RENE PONCE RODRIGUEZ, No. 15-72055
Petitioner, Agency No. A095-199-966
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 9, 2018**
San Francisco, California
Before: GRABER and TALLMAN, Circuit Judges, and LEMELLE,*** District
Judge.
Julio Rene Ponce Rodriguez, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ivan L.R. Lemelle, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
from an immigration judge’s (“IJ”) order denying his applications for withholding,
deferral, and cancellation of removal, as well as adjustment of status. We review
questions of law de novo and review factual findings under the substantial
evidence standard, treating them as “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We
have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Rodriguez first alleges that the IJ and BIA erred by denying his
application for withholding of removal under the Convention Against Torture
(“CAT”) because he has not been convicted of a “particularly serious crime.”
Under 8 U.S.C. § 1231(b)(3)(B)(ii), aliens convicted of particularly serious crimes
are barred from obtaining withholding of removal under CAT. “[A] ‘particularly
serious crime’ determination is inherently discretionary and is to be reviewed
under the abuse-of-discretion standard.” Pechenkov v. Holder, 705 F.3d 444, 448
(9th Cir. 2012).
Rodriguez asserts that the IJ erred by not analyzing whether Petitioner is a
“danger to the community.” But we have held that “[t]he applicable legal standard
for determining whether the alien has committed a particularly serious crime no
longer requires the BIA to engage ‘in a separate determination to address whether
the alien is a danger to the community.’” Anaya-Ortiz v. Holder, 594 F.3d 673,
679 (9th Cir. 2010) (quoting In Re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A.
2
2007)). Thus, because the agency applied the correct legal standard, see Delgado
v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc), we cannot say that it
abused its discretion in finding that Petitioner’s conviction for assault with a
deadly weapon under California Penal Code § 245(a)(1) was a “particularly serious
crime,” see Pechenkov, 705 F.3d at 448.
2. Rodriguez next contends that the IJ and BIA erred in holding that he is
ineligible for deferral of removal under CAT because (1) he provided evidence
concerning the ineffectiveness of the Salvadoran government in stopping torture
and (2) they failed to consider the entire record. “To be eligible for deferral of
removal under the CAT, the applicant must establish that he would more likely
than not be tortured at the instigation of, or with the consent or acquiescence of, a
public official.” Cole v. Holder, 659 F.3d 762, 780 (9th Cir. 2011) (citing 8 C.F.R.
§§ 1208.16(c)(2), 1208.18(a)(1)). Although “[i]t is enough [to show acquiescence]
that public officials . . . simply stood by because of their inability or unwillingness
to oppose it,” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th Cir 2006), “a
general ineffectiveness on the government’s part to investigate and prevent crime
will not suffice to show acquiescence,” Andrade–Garcia v. Lynch, 828 F.3d 829,
836 (9th Cir. 2016).
Here, substantial evidence supported the IJ’s determination that Salvadoran
officials had not acquiesced to torture and were actively fighting street gangs in El
3
Salvador. Furthermore, the IJ expressly considered all relevant evidence regarding
the government’s purported acquiescence, see Almaghzar v. Gonzales, 457 F.3d
915, 922 (9th Cir. 2006), and our review of the record does not establish that “any
reasonable adjudicator would be compelled to conclude to the contrary,” Cole, 659
F.3d at 780 (quoting 8 U.S.C. § 1252(b)(4)(B)).
3. Rodriguez also argues that the IJ erroneously denied his application for
adjustment of status when it found he was inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). To qualify for adjustment of status, an alien bears the
burden of establishing that he “is admissible to the United States for permanent
residence.” Id. § 1255(a). An alien is inadmissible when he admits to “committing
acts which constitute the essential elements of . . . a violation of . . . any law . . .
relating to a controlled substance.” Id. § 1182(a)(2)(A)(i)(II).
To determine the legal sufficiency of such an admission, the BIA has
required that a petitioner be provided with the definition and essential elements of
the crime prior to making the admission to ensure that “the alien would receive fair
play and to preclude any possible later claim . . . that he had been unwittingly
entrapped into admitting the commission of a crime involving moral turpitude.” In
re K-, 7 I. & N. Dec. 594, 597 (B.I.A. 1957). We, however, subsequently ruled
that the protections recognized in that decision are not applicable to testimony
4
given under oath in court while represented by counsel. Urzua Covarrubias v.
Gonzales, 487 F.3d 742, 749 (9th Cir. 2007).
Here, Rodriguez admitted to possessing and smoking marijuana—a
Schedule 1 controlled substance under 21 U.S.C. § 812(c)—several times a week
for at least a year. Under 21 U.S.C. § 844(a), “[i]t shall be unlawful for any person
knowingly or intentionally to possess a controlled substance unless such substance
was obtained directly, or pursuant to a valid prescription.” Because he voluntarily
admitted to these facts under oath and with counsel present, his admission makes
him inadmissible and therefore unable to adjust his status. See Esquivel-Garcia v.
Holder, 593 F.3d 1025 (9th Cir. 2010).
4. Rodriguez last asserts that the BIA erred in affirming the IJ’s decision
because he also brought an adjustment of status claim under 8 U.S.C. § 1255(i) and
a waiver of inadmissibility claim under 8 U.S.C. § 1182(h), but the IJ did not
directly address those claims in his decision. Although an IJ’s “decision shall . . .
contain reasons for granting or denying the request,” 8 C.F.R. § 1240.12, the BIA
“may review questions of law, discretion, and judgment and all other issues in
appeals from decisions of immigration judges de novo,” id.
§ 1003.1(d)(3)(ii) (emphasis added). Because the BIA’s consideration of
Petitioner’s claims under § 1255(i) and § 1182(h) did not require finding additional
5
facts, see § 1003.1(d)(3)(i), (iv), its decision to address those claims was not error,
see INS v. Abudu, 485 U.S. 94, 105 (1988).
Turning to Petitioner’s claims under § 1255(i) and § 1182(h), we affirm the
BIA’s ruling. As the BIA noted and Petitioner conceded, claims for adjustment of
status under § 1255(i)—like § 1255(a)—require that the alien be “admissible to the
United States for permanent residence.” 8 U.S.C. § 1255(i)(2)(A). Because
Petitioner admitted to a violation of 21 U.S.C. § 844(a), he is inadmissible and
therefore ineligible for an adjustment of status under § 1255(i). Id.
§ 1182(a)(2)(A)(i)(II). Furthermore, although “[t]he Attorney General may, in his
discretion, waive [inadmissibility] insofar as it relates to a single offense of simple
possession of 30 grams or less of marijuana” under 8 U.S.C. § 1182(h) (emphasis
added), Petitioner voluntarily admitted to possessing marijuana on many occasions.
Accordingly, he is precluded from this discretionary waiver of inadmissibility,
thereby making him ineligible for adjustment of status.
Petition DENIED.
6