Carlos Figueroa-Macedo v. Eric Holder, Jr. , 538 F. App'x 752 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CARLOS FIGUEROA-MACEDO, a.k.a. No. 12-70170
Carlo Hugo Figueroa-Macedo,
Agency No. A035-927-615
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 14, 2013 **
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
Carlos Figueroa-Macedo, a native and citizen of Argentina, petitions pro se
for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from the decision of an immigration judge (“IJ”) denying his applications
for cancellation of removal, asylum, withholding of removal, and protection under
*
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 Convention Against Torture (“CAT”). Our jurisdiction is governed by
8 U.S.C. § 1252. We review de novo questions of law and review for substantial
evidence factual determinations. Lopez-Cardona v. Holder, 662 F.3d 1110, 1111
(9th Cir. 2011). We deny in part and dismiss in part the petition for review.
The BIA correctly concluded that Figueroa-Macedo’s 1996 conviction under
California Penal Code § 422, which resulted in a prison sentence of 365 days,
constitutes a conviction for an aggravated-felony crime of violence. See 8 U.S.C.
§ 1101(a)(43)(F) (defining “aggravated felony” to include a crime of violence (as
defined in 18 U.S.C. § 16) for which the term of imprisonment is at least one year);
Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003) (“[California Penal
Code] § 422 meets the definition of a ‘crime of violence’ as set forth in [18 U.S.C.]
§ 16(a).”). The validity of Figueroa-Macedo’s 1996 conviction is not properly
before us. See Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir.
2011) (“A petitioner may not collaterally attack his state court conviction on a
petition for review of a BIA decision.”). Moreover, our case law forecloses
Figueroa-Macedo’s contentions that the current aggravated-felony definition is
impermissibly retroactive. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1054
(9th Cir. 2005) (“[T]he expanded aggravated felony definition [at 8 U.S.C.
§ 1101(a)(43)(F)] can be applied retroactively . . . .”).
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The BIA also correctly concluded that Figueroa-Macedo’s aggravated-
felony conviction renders him statutorily ineligible to seek asylum and cancellation
of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i) (asylum), 1229b(a)(3)
(cancellation of removal). In light of this threshold legal determination, the BIA
did not need to consider the merits of Figueroa-Macedo’s asylum application. See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
Substantial evidence supports the BIA’s denial of Figueroa-Macedo’s
application for withholding of removal because evidence of changed country
conditions rebutted the presumption that he would face a clear probability of
suffering future persecution in Argentina, given that more than 22 years have
passed since the underlying events occurred, the Argentine government has
changed in the interim, and the country-conditions evidence in the record contains
no reports of recent politically motivated persecution. See Gui v. INS, 280 F.3d
1217, 1230 (9th Cir. 2002).
Substantial evidence also supports the BIA’s denial of Figueroa-Macedo’s
application for protection under the CAT because he failed to demonstrate that he
would more likely than not suffer torture involving sufficient state action in
Argentina. See Lopez-Cardona, 662 F.3d at 1114 (affirming a denial of deferral of
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removal under the CAT in the absence of evidence that feared persecutors were
currently seeking to harm the petitioner).
Figueroa-Macedo waived his allegations of IJ bias by failing to raise the
issue in his Opening Brief. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.
2010) (“[W]e generally will not take up arguments not raised in an alien’s opening
brief before this court.”).
We lack jurisdiction over Figueroa-Macedo’s challenges to the agency’s
determination that he was removable for the commission of two crimes involving
moral turpitude, his equitable-estoppel arguments, his request for a section 212(c)
waiver of inadmissibility, and his allegations regarding the IJ’s misconstrual of his
testimony, because he failed to exhaust these contentions. See id. (“We lack
jurisdiction to review legal claims not presented in an alien’s administrative
proceedings before the BIA.”).
To the extent that Figueroa-Macedo seeks to renew his request for a stay of
removal, we deny the request as moot.
We treat Figueroa-Macedo’s “Motion to Show Cause,” which he filed on
January 4, 2013, as a request for leave to supplement his Reply Brief, and we grant
the request.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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