Leonardo Perez-Garcia v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARDO PEREZ-GARCIA, AKA No. 20-72706
Leonardo Garcia, AKA Leonardo Perez,
AKA Leonardo Jose Perez, Agency No. A205-156-871
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2021**
Pasadena, California
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
Leonardo Perez-Garcia (“Perez”), a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his
appeal of the Immigration Judge’s (“IJ”) decision denying his application 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).
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). “We review de novo the BIA’s determinations on questions of
law.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020). “We review for
substantial evidence the BIA’s factual findings, which should be upheld unless the
evidence compels a contrary result.” Id. (citation and internal quotation marks
omitted). As the parties are familiar with the facts, we do not recount them here.
We deny the petition for review.
1. The BIA concluded that Perez’s conviction for assault with force likely to
produce great bodily injury in violation of California Penal Code § 245(a)(4) was
an “aggravated felony” barring him from asylum and a “particularly serious crime”
barring him from withholding of removal under both the Immigration and
Nationality Act and the CAT.
Perez argues that the BIA erred because none of the types of documents or
records that “shall constitute proof of a criminal conviction” under 8 U.S.C.
§ 1229a(c)(3)(B) were included in the Certified Administrative Record. He further
contends that it was impermissible for the BIA to rely solely on his testimony to
show the existence of his conviction and sentence. However, “all reliable
information may be considered in making a particularly serious crime
determination, including the conviction records and sentencing information, as
well as other information outside the confines of a record of conviction,” and an
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applicant’s “testimony is just the sort of ‘reliable information . . . outside the
confines of a record of conviction.’” Anaya-Ortiz v. Holder, 594 F.3d 673, 678
(9th Cir. 2010) (citation omitted). Based on Perez’s testimony, substantial
evidence supports the existence of his conviction and sentence. While the BIA
incorrectly noted that the Certified Administrative Record contained Perez’s
conviction records, this mistake is harmless because there is no indication that the
BIA relied upon information in those extra-record documents.
2. Other than challenging the evidence permissible to show the existence of
his conviction, Perez does not dispute that the BIA properly determined that his
conviction under California Penal Code § 245(a)(4) was an “aggravated felony,”
making him ineligible for asylum. However, Perez challenges the BIA’s
determination that his conviction was a “particularly serious crime,” making him
ineligible for withholding of removal.
“When the [applicant] is sentenced to fewer than five years in prison, as
here, there is a discretionary inquiry” on a case-by-case basis “into whether the
crime of conviction was a particularly serious one.” Dominguez v. Barr, 975 F.3d
725, 740 (9th Cir. 2020). To determine whether a crime is particularly serious, the
agency is required to consider the “Frentescu factors”: “the nature of the
conviction, the circumstances and underlying facts of the conviction, the type of
sentence imposed, and, most importantly, whether the type and circumstances of
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the crime indicate that the alien will be a danger to the community.” Delgado v.
Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc) (quoting Matter of
Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)). We review the agency’s
decision for an abuse of discretion, and our “review is limited to ensuring that the
agency relied on the appropriate factors and [ ]proper evidence[.]” Bare v. Barr,
975 F.3d 952, 961 (9th Cir. 2020) (citation and internal quotation marks omitted).
Here, the BIA “relied on the appropriate factors and [ ]proper evidence” to
reach its conclusion that Perez’s conviction under California Penal Code § 245(a)
constituted a particularly serious crime. Id. (citation and internal quotation marks
omitted). The BIA determined that Perez’s assault conviction was particularly
serious because Perez testified that he hit the victim ten times in the face, causing
the victim to suffer bleeding and lacerations and to fall to the ground, and that
Perez was sentenced to two years’ imprisonment. Perez’s arguments that the
agency made several errors, such as ignoring his mitigating testimony that he acted
in self-defense and incorrectly stating that he knocked the victim “unconscious,”
are unpersuasive.
3. For Perez’s application for deferral of removal under the CAT,
substantial evidence supports the BIA’s adverse credibility determination. The
BIA determined that Perez was not credible because there were inconsistencies
between his testimony and his mother’s testimony. Perez argues that his mother
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was not a “reliable” witness because she was “confused” about the relevant events
and Perez had hidden from his mother the details about his alleged captivity by the
Sonora Cartel. However, Perez’s explanation is not “reasonable and plausible.”
Munyuh v. Garland, 11 F.4th 750, 758 (9th Cir. 2021) (citation omitted). Even if
Perez hid from his mother the details of his experiences with the Sonora Cartel, it
is not plausible that she could have publicly met him several times during the same
period when he was purportedly being held captive at a ranch. Moreover, Perez
himself chose to call his mother as a witness. Cf. Manes v. Sessions, 875 F.3d
1261, 1264 (9th Cir. 2017) (per curiam). Perez’s contention that the IJ improperly
limited Perez’s pro se questioning of his mother is not supported by the record.
4. Substantial evidence also supports the BIA’s determination that,
independent of his non-credible testimony, Perez failed to meet the standard for
deferral of removal under the CAT. The 2014 State Department Human Rights
Report for Mexico, standing alone, is insufficient to compel the conclusion that
Perez is “more likely than not to be tortured” if removed to Mexico. 8 C.F.R.
§ 1208.17(a); see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.
2010) (per curiam) (stating that “generalized evidence of violence and crime in
Mexico” is insufficient to meet CAT’s “more likely than not” standard).
PETITION FOR REVIEW DENIED.1
1
Perez’s motion for stay of removal (Docket Entry Nos. 1, 5) is denied as moot.
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