Danilo Mairena v. William Barr , 917 F.3d 1119 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANILO ALBERTO MAIRENA, AKA No. 15-72833
Danilo Alberto Mairewa, AKA
Danilo Alberto Mariena, AKA Agency No.
Danilo Marieno, A027-142-897
Petitioner,
v. OPINION
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2018 *
Pasadena, California
Filed March 7, 2019
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 MAIRENA V. BARR
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 California Penal Code § 273.5(e)(1), and was
sentenced to five years of imprisonment: four years for the
offense, plus a one-year enhancement, pursuant to California
Penal Code § 12022.5(b)(1), for using a weapon during the
commission of the offense.
**
The Honorable Carol Bagley Amon, United States District Judge
for the Eastern District of New York, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MAIRENA V. BARR 3
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 8 U.S.C. § 1231(b)(3)(B)(ii), withholding of
removal is not available “if the Attorney General decides
that . . . the alien, having been convicted by a final judgment
of a particularly serious crime is a danger to the community
of the United States . . . .” The provision further explains:
“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.”
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
4 MAIRENA V. BARR
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 § 1231(b)(3)(B), in that the five-year
requirement is keyed to the “aggregate term of
imprisonment” for the actual sentence imposed—not to the
statutory maximum. The panel also observed that nothing in
the text of the statute prohibits the BIA from considering
sentencing enhancements in computing the aggregate term
of imprisonment.
Moreover, the panel noted that, even if it accepted
Mairena’s contention that it should look to the statutory
maximum in interpreting § 1231(b)(3)(B), the statutory
maximum for Mairena’s offense of conviction was in fact
five years, not four years.
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
MAIRENA V. BARR 5
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.
OPINION
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 8 U.S.C. § 1252. We deny his petition.
BACKGROUND
Mairena, a native and citizen of Nicaragua born in 1979,
entered the United States on a visitor visa in 1984 and
attained lawful permanent resident status in 1988. Mairena’s
wife, two daughters, and parents reside in the United States,
and he has no family left in Nicaragua.
6 MAIRENA V. BARR
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 California Penal Code
§ 273.5(e)(1). 1 He had been previously convicted of
corporal injury to a spouse in 2008. Mairena was sentenced
to five years of imprisonment: four years for the offense,
plus a one-year enhancement, pursuant to California Penal
Code § 12022.5(b)(1), 2 for using a weapon during the
commission of the offense. That same day, Mairena was
also convicted of dissuading a witness, in violation of
California Penal Code § 136.1(c)(1), for which he was
sentenced to three years of imprisonment.
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 § 237(a)(2)(A)(iii) of the Immigration and
Nationality Act. See 8 U.S.C. § 1227(a)(2)(A)(iii). On
1
California Penal Code § 273.5(e)(1) has been amended since
Mairena’s conviction. Mairena was convicted under what is now
California Penal Code § 273.5(f)(1). Compare Cal. Penal Code
§ 273.5(e)(1) (2010), with id. § 273.5(f)(1) (2018).
2
Although the judgment of conviction lists California Penal Code
§ 12022.5(b)(1) as the source of the one-year enhancement, it
presumably should have listed California Penal Code § 12022(b)(1).
The former authorizes an additional term of five, six, or ten years for the
use of an assault weapon; the latter authorizes an additional term of one
year for the use of a deadly or dangerous weapon in the commission of
a felony. Compare Cal. Penal Code § 12022.5(b)(1) (2010), with id.§ 12022(b)(1) (2010). The First Amended Information charges Mairena
under the latter provision for using a pipe during the offense. In any
event, the particular enhancement provision is irrelevant to our
resolution of the issues presented in this case.
MAIRENA V. BARR 7
March 20, 2014, the IJ (Walsh, I.J.) concluded that Mairena
was removable as charged.
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
3
According to the United States Department of State Nicaragua
2013 Human Rights Report, contained in the record below, the
Sandinista National Liberation Front is a political party that has
increasingly concentrated political power in Nicaragua.
8 MAIRENA V. BARR
than not be tortured if he returned to Nicaragua. The BIA
did not rely on Mairena’s conviction for dissuading a
witness, for which he was sentenced to three years of
imprisonment.
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 8 U.S.C.
§§ 1252(a)(2)(C), 1227(a)(2)(A)(iii), but “we retain
jurisdiction to decide our own jurisdiction and to resolve
questions of law,” Bolanos v. Holder, 734 F.3d 875, 876 (9th
Cir. 2013). “Although we cannot reweigh evidence to
determine if the crime was indeed particularly serious, [we]
can determine whether the BIA applied the correct legal
standard.” Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir.
2014) (alteration in original) (quoting Blandino-Medina v.
Holder, 712 F.3d 1338, 1343 (9th Cir. 2013)).
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
MAIRENA V. BARR 9
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 . . . .” 8 U.S.C. § 1252(b)(4)(B); see also
Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007)
(“Under the substantial evidence standard, the court upholds
the BIA’s determination unless the evidence in the record
compels a contrary conclusion.”).
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.” 8 U.S.C. § 1231(b)(3)(A). But withholding of
removal is not available “if the Attorney General decides
that . . . the alien, having been convicted by a final judgment
of a particularly serious crime is a danger to the community
of the United States . . . .” Id. § 1231(b)(3)(B)(ii). The
provision further explains:
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
10 MAIRENA V. BARR
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.
Id. § 1231(b)(3)(B).
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,
4
Under the case-by-case analysis, this Court considers the
conviction in light of the Frentescu factors: “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.” Konou, 750 F.3d at 1127 (quoting Matter of Frentescu,
18 I & N. Dec. 244, 247 (B.I.A. 1982)). We review for abuse of
discretion the BIA’s case-by-case determination that an individual was
convicted of a particularly serious crime. Id.
5
“As used in immigration law, ‘aggravated felony’ is a term of art
referring to the offenses enumerated under [8 U.S.C.] § 1101(a)(43).”
Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011) (en banc).
Among the enumerated offenses is “a crime of violence . . . for which
MAIRENA V. BARR 11
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.”
Konou, 750 F.3d at 1128. 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.” 8 U.S.C.
the term of imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(F).
12 MAIRENA V. BARR
§ 1231(b)(3)(B). Thus, the five-year requirement is keyed
to the “aggregate term of imprisonment” for the actual
sentence imposed—not to the statutory maximum. Cf.
United States v. Corona-Sanchez, 291 F.3d 1201, 1208–09
(9th Cir. 2002) (en banc) (in determining whether a
conviction categorically qualifies as an aggravated felony
because it is an offense “for which the term of imprisonment
[is] at least one year,” 8 U.S.C. § 1101(a)(43)(G), a court
“must consider the sentence available for the crime itself,
without considering separate recidivist sentencing
enhancements”), superseded by statute on other grounds as
explained in United States v. Gomez-Mendez, 486 F.3d 599,
604–05 (9th Cir. 2007); Rusz v. Ashcroft, 376 F.3d 1182,
1184–85 (9th Cir. 2004) (applying Corona-Sanchez to a
provision of the Immigration and Nationality Act that
provides for the removal of an alien convicted of, inter alia,
“a crime for which a sentence of one year or longer may be
imposed” (quoting 8 U.S.C. § 1227(a)(2)(A)(i)(II))).
Nothing in the text of § 1231(b)(3)(B) prohibits the BIA
from considering sentencing enhancements in computing the
aggregate term of imprisonment.
Moreover, even if we accepted Mairena’s contention that
we should look to the statutory maximum in interpreting
§ 1231(b)(3)(B), the statutory maximum for Mairena’s
offense of conviction was in fact five years, not four years.
Although the statutory maximum for a corporal injury
conviction under California Penal Code § 273.5(a) was
indeed four years, Mairena was convicted under California
Penal Code § 273.5(e)(1), which provided for an enhanced
statutory maximum of five years for an individual with a
prior corporal injury conviction within the last seven years.
Compare Cal. Penal Code § 273.5(a) (2010), with id.§ 273.5(e)(1) (2010). When he was convicted in 2010,
Mairena had such a prior conviction from 2008.
MAIRENA V. BARR 13
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.” 8 C.F.R. § 1208.17(a). “Torture is an extreme
form of cruel and inhuman treatment that either (1) is not
lawfully sanctioned by that country or (2) is lawfully
sanctioned by that country, but defeats the object and
purpose of CAT.” Konou, 750 F.3d at 1124 (quoting
Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir.
2014)); see also 8 C.F.R. § 1208.18(a)(1) (defining torture).
In addition, the torture must be “inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1); see also Garcia-Milian, 755 F.3d
at 1033.
The applicant bears the burden of proving that he is
eligible for deferral of removal under CAT. 8 C.F.R.
§ 1208.17(d)(3). “Evidence of past torture inflicted upon the
applicant” is relevant in assessing whether torture is more
likely than not. 8 C.F.R. § 1208.16(c)(3); see also
Kamalthas v. I.N.S., 251 F.3d 1279, 1282 (9th Cir. 2001). A
United States Department of State report “can carry an
applicant’s burden of establishing a probability of torture,”
but it “can also serve to outweigh an applicant’s evidence of
a probability of torture.” Konou, 750 F.3d at 1125. In
addition, the “testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without
14 MAIRENA V. BARR
corroboration.” 8 C.F.R. § 1208.16(c)(2); see also Konou,
750 F.3d at 1124.
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
MAIRENA V. BARR 15
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.