Fernando Sampu Tebalan v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO SAMPU TEBALAN, AKA No. 16-72382
Fernando Tebalan, AKA Fernando Tebalan
Sampu, Agency No. A205-314-934
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2019**
Pasadena, California
Before: SCHROEDER, FRIEDLAND, and R. NELSON, Circuit Judges.
Fernando Sampu Tebalan, a native and citizen of Guatemala, seeks review
of the Board of Immigration Appeals’ (“BIA”) final removal order, dismissing his
appeal from the immigration judge’s (“IJ”) decision denying his applications for
*
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).
withholding of removal, protection under the Convention Against Torture
(“CAT”), and voluntary departure. As the parties are familiar with the facts, we do
not recount them here. We have jurisdiction under 8 U.S.C. § 1252(a). We
review the BIA’s particularly serious crime determination for abuse of discretion
and review the denial of withholding and CAT relief for substantial evidence.
Konou v. Holder, 750 F.3d 1120, 1124, 1127 (9th Cir. 2014). We deny the petition
for review.
The BIA did not abuse its discretion in affirming the IJ’s conclusion that
Petitioner’s domestic violence conviction under California’s Penal Code § 273.5(a)
qualifies as a particularly serious crime, rendering him statutorily ineligible for
withholding of removal and withholding of removal under the CAT. Our review is
limited to whether the agency relied on the appropriate factors and proper
evidence. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir.
2015) (the court may not reweigh the evidence and reach its own conclusion in
review of the agency’s particularly serious crime determination). Here, the BIA
and the IJ considered the relevant factors and applied them to the record evidence
and there is no indication that the agency acted “arbitrarily, irrationally, or contrary
to law.” Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012). See also Konou, 750
F.3d at 1126–27 (listing factors to consider in determining whether a crime is
particularly serious).
2
Next, we conclude that substantial evidence supported the BIA’s denial of
deferral of removal under the CAT because Petitioner failed to establish that it is
more likely than not that he will be tortured by or with the acquiescence of the
government of Guatemala.1
Finally, we lack jurisdiction to consider the agency’s discretionary denial of
voluntary departure relief. The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 precludes us from reviewing the BIA’s discretionary
denial of voluntary departures. 8 U.S.C. § 1229c(f); Esquivel-Garcia v. Holder,
593 F.3d 1025, 1030 (9th Cir. 2010); Zazueta-Carillo v. Ashcroft, 322 F.3d 1166,
1170 (9th Cir. 2003).
The petition for review is DENIED.
1
The United States Supreme Court recently granted certiorari in Nasrallah v. Barr,
No. 18-1432 (Oct. 18, 2019), which presents the question “[w]hether,
notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to
review factual findings underlying denials of withholding (and deferral) of removal
relief.” Petition for a Writ of Certiorari, Nasrallah v. Barr, No. 18-1432 (May 14,
2019). We decide this case in accordance with current Ninth Circuit precedent,
under which we have jurisdiction over Petitioner’s challenge to the denial of
deferral of removal under the CAT. See Pechenkov v. Holder, 705 F.3d 444, 448
(9th Cir. 2012). Because any determination by the Supreme Court that we lack
jurisdiction would have no effect on the outcome of this case, we proceed under
our existing caselaw.
3