Joel Taracena-Funes v. Loretta E. Lynch ( 2017 )

FILED
NOT FOR PUBLICATION JAN 24 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL ESTUARDO TARACENA-FUNES, No. 13-74132
AKA Joel Estuardo Taracena,
Agency No. A077-293-995
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Joel Estuardo Taracena-Funes, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s decision finding him removable and denying
his applications for asylum, withholding of removal and protection under the
*
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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review de novo questions of law, Coronado v. Holder, 759 F.3d 977,
982 (9th Cir. 2014), and review for substantial evidence the denial of CAT relief,
Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). We deny the petition for
review.
Taracena-Funes’ contention that his conviction under California Penal Code
§ 245(a)(1) is not categorically an aggravated felony is foreclosed by this court’s
holdings in United States v. Grajeda, 581 F.3d 1186, 1191-97 (9th Cir. 2009) and
United States v. Jimenez-Arzate, 781 F.3d 1062, 1065 (9th Cir. 2015). In the
absence of an intervening Supreme Court or en banc decision, “[a] three-judge
panel cannot reconsider or overrule circuit precedent.” Avagyan v. Holder, 646
F.3d 672, 677 (9th Cir. 2011).
The agency applied the correct standard in determining that Taracena-Funes’
conviction was a particularly serious crime that rendered him ineligible for
withholding of removal. See Matter of N-A-M-, 24 I. & N. Dec. 336, 342 (BIA
2007) (“[W]e examine the nature of the conviction, the type of sentence imposed,
and the circumstances and underlying facts of the conviction.”); Anaya-Ortiz v.
Holder, 594 F.3d 673, 678 (9th Cir. 2010) (deferring to the BIA’s approach to
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particularly serious crime determinations in Matter of N-A-M-); 8 U.S.C.
§§ 1229a(c)(4)(A)(i), 1231(b)(3)(B)(ii).
Contrary to Taracena-Funes’ contention, the BIA did not err in considering
the nature of his subsequent probation violation. See Anaya-Ortiz, 594 F.3d at 678
(all reliable information may be considered in a particularly serious crime
determination); cf. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078 (9th Cir.
2015) (the agency erred in treating a violation of probation as a sentencing
enhancement of alien’s original sentence in making the particularly serious crime
determination).
The record does not support Taracena-Funes’ contention that the BIA treated
his conviction as a per se category of particularly serious crime.
Taracena-Funes’ contends that, under Moncrieffe v. Holder, 133 S. Ct. 1678
(2013), and Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014), he should not
have been required to provide evidence that would not have been permitted under
the modified categorical approach to establish that he had not been convicted of a
particularly serious crime. However, this contention is unavailing because those
cases relate to the categorical and modified categorical approaches to disqualifying
crimes and do not concern the discretionary particularly serious crime
determination.
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Contrary to Taracena-Funes’ contention, the BIA did not have to address his
eligibility for withholding of removal on the merits, where the BIA’s particularly
serious crime determination was dispositive. See Simeonov v. Ashcroft, 371 F.3d
532, 538 (9th Cir. 2004).
Substantial evidence supports the agency’s denial of deferral of removal
under the CAT, where the record does not compel the conclusion that it is more
likely than not Taracena-Funes will be tortured by or with the consent or
acquiescence of the government if removed to Guatemala. See Silaya, 524 F.3d at
1073. Taracena-Funes’ contention that the agency insufficiently considered his
CAT claim is not supported by the record. See Najmabadi v. Holder, 597 F.3d
983, 990 (9th Cir. 2010); Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (the
BIA is not required to “discuss each piece of evidence submitted”).
PETITION FOR REVIEW DENIED.
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