Edverid Castro Garcia v. Eric Holder, Jr. ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
EDVERID CRIDVID CASTRO GARCIA, No. 11-71670
Petitioner, Agency No. A074-794-482
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2015**
Pasadena California
Before: SILVERMAN and BEA, Circuit Judges and DONATO,*** District Judge.
Edverid Cridvid Castro Garcia, a Guatemalan citizen and indigenous
Cakchiquel Mayan, petitions for review of the Board of Immigration Appeals’
*
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).
***
The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
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dismissal of his appeal from the Immigration Judge’s denial of his applications for
withholding of removal under the Immigration and Nationality Act and
withholding and deferral of removal under the Convention Against Torture. We
have jurisdiction pursuant to 8 U.S.C. § 1252. We DENY the petition.
The BIA did not err in applying Matter of Y-L-, 23 I. & N. Dec. 270 (A.G.
2002), to determine that Castro Garcia’s 1991 conviction for violating California
Health and Safety Code § 11351.5 is a particularly serious crime barring his
applications for withholding of removal. Miguel-Miguel v. Gonzales, 500 F.3d 941(9th Cir. 2007), did not create a per se rule that application of Y-L- to all criminal
convictions entered prior to 2002 is impermissible. Garfias-Rodriguez v. Holder,
702 F.3d 504, 519-20 (9th Cir. 2012) (en banc). Under a proper, individualized
analysis of the factors identified in Montgomery Ward & Co., Inc. v. FTC, 691
F.2d 1322, 1333 (9th Cir. 1982), application of Y-L- to Castro Garcia’s case was
not impermissibly retroactive.
First, at the time Castro Garcia pled guilty to § 11351.5, his crime was per se
a particularly serious crime. Miguel-Miguel, 500 F.3d at 946. Second, Castro
Garcia cannot be said to have relied on the former state of the law to his detriment
when he affirmatively applied for asylum, thereby alerting immigration authorities
to his unlawful presence, because he had no vested right to continue residing
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unlawfully in the United States. See Garfias-Rodriguez, 702 F.3d at 522; Jimenez-
Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir. 2002).
The BIA also did not err in affirming the IJ’s denial of Castro Garcia’s
deferral of removal application. The BIA explicitly incorporated page 13 of the IJ
decision, which considers the relevant record evidence, including the testimony of
Castro Garcia’s expert, in concluding that Castro Garcia failed to show a likelihood
of torture if removed to Guatemala. Substantial evidence supports that conclusion,
namely the fact that although there is evidence in the record showing that
individuals who express pro-labor or pro-indigenous-rights stances or who
investigate government-involved murders may be at risk of harm by the
Guatemalan government, the extent of Castro Garcia’s future involvement in such
conduct and the likelihood it would become known to the government and that the
government would react by torturing Castro Garcia are speculative. See Abufayad
v. Holder, 632 F.3d 623, 632-33 (9th Cir. 2011); Nagoulko v. I.N.S., 333 F.3d
1012, 1018 (9th Cir. 2003).
PETITION FOR REVIEW DENIED.