Anton Sennhauser v. Eric Holder, Jr. , 591 F. App'x 612 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTON SENNHAUSER, No. 11-73749
Petitioner, Agency No. A030-748-250
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Anton Sennhauser, a native and citizen of Switzerland, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s order of removal. Our jurisdiction is governed by 8
U.S.C. § 1252. We review de novo constitutional claims and questions of law, and
*
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).
review for substantial evidence the agency’s factual findings. Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in
part the petition for review.
The agency correctly determined that Sennhauser’s conviction under
California Penal Code § 288(a) for lewd acts with a child under fourteen is
categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(A), as a law
relating to sexual abuse of a minor. See 8 U.S.C. § 1229a(c)(3)(B); United States v.
Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (section 288(a) is categorically
an aggravated felony under 8 U.S.C. § 1101(a)(43)(A)); United States v. Strickland,
601 F.3d 963, 968-70 (9th Cir. 2010) (en banc) (copy of docket sheet is a judicially
noticeable document that may be used to determine whether offense is a removable
one). Our jurisdiction therefore is limited to colorable constitutional claims and
questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D) (limiting review when
petitioner has been convicted of an aggravated felony).
Contrary to Sennhauser’s contentions, the BIA sufficiently addressed his
contentions on appeal and did not need to address removability based on his
firearms conviction, where its finding that he was removable based on his
conviction for lewd acts with a child under fourteen was dispositive. See Simeonov
v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (“As a general rule courts and
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agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.” (citation omitted)).
The record belies Sennhauser’s contention that he was denied a full and fair
hearing. In addition, we lack jurisdiction to review the government’s decision to
commence removal proceedings. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594,
598-99 (9th Cir. 2002). Sennhauser has not raised any other colorable
constitutional claims or questions of law.
Section 1252(a)(2)(C) does not deprive us of jurisdiction to consider a denial
of withholding of removal or protection under the Convention Against Torture
(“CAT”) in a case such as this where the agency denied relief on the merits.
See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). The agency applied
the correct standard in its withholding of removal determination, and substantial
evidence supports the agency’s determination that Sennhauser failed to establish it
is more likely than not that his life or freedom would be threatened on account of a
protected ground if returned to Switzerland. See 8 C.F.R. § 1208.16(b)(2); Zehatye
v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (to qualify for withholding of
removal, an alien must show a clear probability of future persecution).
The agency applied the correct standard in its CAT determination, and
substantial evidence supports the agency’s determination that Sennhauser did not
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establish it is more likely than not that he would be tortured if he returned to
Switzerland. See Wakkary v. Holder, 558 F.3d 1049, 1056, 1067-68 (9th Cir.
2009).
Sennhauser’s motion to accept an oversized and late-filed reply brief is
granted.
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See Reno
v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 483-85
(1999) (stating that prosecutorial discretion by the agency can be granted at any
stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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