Hector Benites Pardo v. Loretta E. Lynch , 637 F. App'x 306 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR ESJANI BENITES PARDO, No. 12-74165
Petitioner, Agency No. A095-670-276
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2016**
Pasadena, California
Before: McKEOWN and IKUTA, Circuit Judges and PRATT,*** Senior District
Judge.
Hector Benites Pardo appeals the Board of Immigration Appeals’ (BIA)
decision to deny his applications for asylum, withholding of removal, adjustment
*
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 Robert W. Pratt, Senior District Judge for the U.S.
District Court for the Southern District of Iowa, sitting by designation.
of status, protection under the Convention Against Torture (CAT), and voluntary
departure. We have jurisdiction under 8 U.S.C. § 1252.
The judicially noticeable documents established that Benites Pardo was
convicted under section 11378 of the California Health & Safety Code for
possession for sale of methamphetamine. The BIA’s reference to section 11379(a),
was a scrivener’s error and harmless. Cf. Zixiang Li v. Kerry, 710 F.3d 995, 999
n.3 (9th Cir. 2013). The BIA was not required to determine whether Benites
Pardo’s offense involved a “usable amount” of methamphetamine, and the BIA did
not otherwise err in determining that Benites Pardo’s state conviction was a felony
under the Controlled Substances Act. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C); 18
U.S.C. § 3559. Accordingly, the BIA did not err in concluding that Benites Pardo
was convicted of an aggravated felony, see 8 U.S.C. § 1101(a)(43)(B), 18
U.S.C. § 924(c); see also United States v. Torre-Jimenez, 771 F.3d 1163, 1165–66
(9th Cir. 2014), and therefore was statutorily ineligible for asylum, adjustment of
status, and voluntary departure, see 8 U.S.C. §§ 1158(b)(2)(B)(i), 1229c(a)(1),
1255(i)(2)(A).
The BIA did not err in affirming the Immigration Judge’s (IJ) denial of
Benites Pardo’s claim for withholding of removal. The IJ’s decision that Benites
Pardo was not a member of a particular social group is supported by substantial
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evidence. See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (BIA 2014); see
also Ochoa v. Gonzales, 406 F.3d 1166, 1169 (9th Cir. 2005). Construing Benites
Pardo’s claim as a request for deferral of removal under 8 C.F.R. § 1208.17, there
was substantial evidence to support the BIA’s conclusion that he was ineligible for
relief because Benites Pardo did not meet his burden of proving that any torture
would be inflicted with the acquiescence or willful blindness of the government of
Mexico. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006).
Benites Pardo presented no evidence to overcome the presumption that the
BIA considered the relevant evidence and findings of the IJ, see Larita-Martinez v.
INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000), so his argument that the BIA
violated his right to due process fails.
PETITION DENIED.
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