Jose Zepeda v. Eric H. Holder Jr. ( 2012 )

FILED
NOT FOR PUBLICATION MAY 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE ERNESTO ZEPEDA, AKA Manuel No. 08-72758
Contreras, AKA Carlos Mario Cruz, AKA
Carlos Lopez, Agency No. A072-885-879
Petitioner,
MEMORANDUM *
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 8, 2012 **
Pasadena, California
Before: PREGERSON, GRABER, and BERZON, Circuit Judges.
Jose Ernesto Zepeda petitions for review of an order of the Board of
Immigration Appeals (“BIA”) finding him ineligible for asylum or withholding 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 under the Immigration and Nationality Act (“INA”) and the Convention
Against Torture (“CAT”), 8 C.F.R. § 1208.16, and ineligible for deferral of
removal under CAT, 8 C.F.R. § 1208.17. Zepeda also argues that the government
has violated his substantive and procedural due process rights. For the reasons
stated below, Zepeda’s petition is DENIED.
1. Zepeda is not eligible for asylum or withholding under either the INA or
CAT because he was convicted of a particularly serious crime, possession of
marijuana “for sale,” in violation of California Health and Safety Code § 11359.
See 8 U.S.C. § 1158(b)(2)(A)(ii). For asylum purposes, an aggravated felony
counts as a particularly serious crime, id. § 1158(b)(2)(B)(i), and “illicit trafficking
in a controlled substance” qualifies as an aggravated felony, id. § 1101(a)(43)(B).
This court has held that “possession of a controlled substance with the intent to sell
contains a trafficking element and is an aggravated felony.” Rendon v. Mukasey,
520 F.3d 967, 976 (9th Cir. 2008)
For withholding purposes, an aggravated felony counts as a particularly
serious crime if it results in “an aggregate term of imprisonment of at least 5 years”
or if the Attorney General determines that it is particularly serious,
“notwithstanding the length of sentence imposed.” 8 U.S.C. § 1231(b)(3)(B). The
BIA has determined that aggravated felonies involving unlawful trafficking in
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controlled substances presumptively constitute “particularly serious crimes.”
Miguel-Miguel v. Gonzales, 500 F.3d 941, 947–49 (9th Cir. 2007) (citing In re Y-
L-, 23 I. & N. Dec. 270, 274, 276 (B.I.A. 2002)). Zepeda does not contend that
this presumption is not controlling here.
Because Zepeda’s crime contains a trafficking element, it qualifies as a
particularly serious crime for both asylum and withholding purposes, rendering
Zepeda ineligible for both.
2. Substantial evidence supports the BIA’s determination that Zepeda is not
entitled to deferral of removal under CAT. See 8 C.F.R. § 1208.16(c)(2). The
record is equivocal on the current prevalence of death squads that target gang
members in El Salvador, as well as on the involvement or acquiescence of the
government in any death squad activity that does occur. As a result, while the
record does indicate that Zepeda might be in danger as a tattooed former gang
member, it does not “compel” the conclusion that it is “more likely than not” that
Zepeda will be tortured in El Salvador. Compare Arteaga v. Mukasey, 511 F.3d
940, 948 (9th Cir. 2007), and Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir.
1999), with Cole v. Holder, 659 F.3d 762, 764 (9th Cir. 2011).
3. Zepeda has not demonstrated that removal would violate his substantive
due process rights under either promissory estoppel or the state-created danger
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doctrine. Zepeda’s record testimony does not indicate that any “actual, explicit
promise was made to him.” See Morgan v. Gonzales, 495 F.3d 1084, 1091 (9th
Cir. 2007). Zepeda also has not “allege[d] anything approaching the kind of
affirmative government misconduct” this court has held is necessary to enjoin
deportation under the state-created danger doctrine. See Id. at 1093.
We do not have jurisdiction to review the bulk of Zepeda’s procedural due
process claims, as they were not raised before the BIA. 8 U.S.C. § 1252(d)(1);
Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004). Zepeda’s argument that
the inclusion of the form I-213 in the administrative record violated due process
was properly exhausted, but it is unpersuasive. Neither the immigration judge nor
the BIA made an adverse credibility finding, and neither considered the form in
reaching its decision. Thus it is clear that any procedural error in the form’s
inclusion did not “affect[] the outcome of the proceedings.” Larita-Martinez v.
INS, 220 F.3d 1092, 1095 (9th Cir. 2000) (internal quotation marks omitted).
DENIED.
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