Rozel Tupaz v. Eric Holder, Jr. ( 2013 )

FILED
NOT FOR PUBLICATION FEB 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROZEL CHRISTIAN TUPAZ, No. 10-73411
Petitioner, Agency No. A079-367-430
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2013 **
San Francisco, California
Before: SCHROEDER, NOONAN, and MURGUIA, Circuit Judges.
Petitioner Rozel Tupaz, a native and citizen of the Philippines, petitions for
review of the Board of Immigration Appeals’ (“BIA”) affirmance of the
Immigration Judge’s (“IJ”) denial of his applications for asylum, cancellation of
*
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).
removal, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Tupaz was removable under INA Section 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B), as a noncitizen who overstayed his nonimmigrant visa. We deny
the petition for review.
Tupaz’s conviction for violating California Penal Code § 496(a)
categorically qualified as an aggravated felony conviction. Verdugo-Gonzalez v.
Holder, 581 F.3d 1059, 1062 (9th Cir. 2009). He was therefore statutorily
ineligible for asylum and cancellation of removal. Rendon v. Mukasey, 520 F.3d
967, 973 (9th Cir. 2008). The government did not rely on the section 496(a)
conviction, since his act of overstaying his visa provided an independent basis for
removability. Thus, the government was not required to file a Form I-261
referencing the conviction, and the IJ was not required to sustain the factual
allegations of the charge.
Substantial evidence supports the agency’s determination that Tupaz failed
to establish his eligibility for withholding of removal on the basis of membership
in a particular social group. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52
(9th Cir. 2010). Substantial evidence also supports the agency’s conclusion that
Tupaz did not demonstrate that it was more likely than not that he would be
persecuted on account of his Catholic beliefs if he were returned to the Philippines.
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Nor did he show that he would be unable to relocate to a safer part of the country
in the event he faced persecution in Mindanao. Tupaz’s application for CAT relief
fails for similar reasons. See 8 C.F.R. § 1208.16(c)(3). The agency properly
applied the criteria for determining a noncitizen’s eligibility for CAT relief.
PETITION FOR REVIEW DENIED.
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