Kelvin Hernandez-Mendoza v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELVIN HERNANDEZ-MENDOZA, No. 20-71390
Petitioner, Agency No. A216-051-376
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 10, 2022**
Seattle, Washington
Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.
Kelvin Hernandez-Mendoza petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We review
the parts of the Immigration Judge’s (“IJ”) decision that the BIA incorporates.
*
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).
Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). We review for an
abuse of discretion the BIA’s conclusion that “an offense constitutes a particularly
serious crime.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)
(simplified). We review agency findings of fact for substantial evidence. 8 U.S.C.
§ 1252(b)(4)(B); Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir. 2008). We review
questions of law and constitutional claims de novo. Young Sun Shin v. Mukasey, 547
F.3d 1019, 1023 (9th Cir. 2008). We have jurisdiction under 8 U.S.C. § 1252 and
deny the petition.
1. We disagree with Hernandez-Mendoza that the IJ, and by extension the
BIA, applied the wrong legal standard in concluding that he was convicted of a
“particularly serious crime.” An alien is statutorily ineligible for asylum and
withholding of removal if he commits a “particularly serious crime.” See Delgado
v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc) (citing 8 U.S.C. §§
1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii)). “[A] crime is particularly serious if the nature
of the conviction, the underlying facts and circumstances and the sentence imposed
justify the presumption that the convicted immigrant is a danger to the community.”
Id.The IJ thoroughly considered these factors in determining that Hernandez-
Mendoza’s conviction for sexual abuse in the second degree in violation of Oregon
Revised Statutes § 163.425 was a “particularly serious crime.” The IJ examined
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Hernandez-Mendoza’s guilty plea, the imposed sentences, the police report of the
incident, the physical examination performed on the victim, and the interviews of
the victim, her roommate, and her mother, and the salient facts were corroborated or
undisputed. See Bare v. Barr, 975 F.3d 952, 964 (9th Cir. 2020) (“The BIA may
consider ‘all reliable information’ in determining whether a crime constitutes a
particularly serious crime, which is a wide-reaching inquiry and includes
consideration of conviction records, sentencing information, and ‘other information
outside the confines of a record of conviction.’” (simplified)). We see no legal error
in the IJ’s review of Hernandez-Mendoza’s conviction.
The BIA and IJ also did not abuse their discretion in holding that the sexual
abuse conviction was a “particularly serious crime.” The IJ emphasized that
Hernandez-Mendoza pleaded guilty to subjecting his victim to anal sex, which she
did not consent to, and also compelled her to act by fear of physical injury. The IJ
noted the resulting tears and discoloration to the victim’s anus and injuries to her
neck. The BIA’s adoption of the IJ’s decision was not arbitrary, irrational, or
contrary to law.
2. Substantial evidence supports the denial of Hernandez-Mendoza’s
CAT application for deferral of removal. An alien convicted of a particularly serious
crime is not precluded from seeking deferral of removal under CAT. 8 C.F.R.
§§ 1208.16(d)(2), 1208.17(a). An applicant for CAT protection has the burden of
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proving it is “more likely than not” that he will be tortured with the acquiescence of
a public official if removed. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Maldonado
v. Lynch, 786 F.3d 1155, 1162 (9th Cir. 2015) (en banc). The “[a]cquiescence of a
public official requires that the public official, prior to the activity constituting
torture, have awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1059 (9th Cir. 2006) (simplified).
The record supports the conclusion that Hernandez-Mendoza failed to show
that it is more likely than not he would be tortured with the acquiescence of the
Honduran government. Hernandez-Mendoza testified that he returned to Honduras
on several occasions and has never been directly threatened or harmed by a gang
member or government official in Honduras. Hernandez-Mendoza also testified that
neither the founder nor the director of the organization he was involved with was
threatened or harmed by anyone in Honduras. While Hernandez-Mendoza’s country
conditions expert points out that a similarly situated human rights defender was
killed in 2006, the record shows that the perpetrators were arrested and prosecuted.
The country conditions reports do not compel a conclusion contrary to the BIA’s.
PETITION DENIED.
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