Rodriguez Gonzalez v. Garland

Case: 22-60091 Document: 00516664844 Page: 1 Date Filed: 03/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 3, 2023
No. 22-60091 Lyle W. Cayce
Clerk
Roberto Rodriguez Gonzalez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
A079 744 164
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:
Petitioner seeks review of a final order of removal by the Board of
Immigration Appeals (“BIA”). He alleges that the BIA and the Immigration
Judge (“IJ”) committed legal error in concluding that he was ineligible for
asylum because of a conviction of Texas aggravated robbery. We disagree and
deny his petition for review.
I. Background
Roberto Rodriguez Gonzalez (“Petitioner”) is a native citizen of
Mexico who received lawful permanent resident status in the United States
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in 2003. In 2014, he pleaded guilty to Texas aggravated robbery and was
sentenced to eight years’ imprisonment.
Subsequently he received a Notice to Appear from the Department of
Homeland Security in which he was charged as removable because of his
conviction. An IJ found him removable and, further, ineligible for asylum due
to his conviction. The BIA affirmed. Following the Supreme Court’s
decision in Sessions v. Dimaya, 138 S. Ct 1204 (2018), in which it was held
that the “crime of violence” designation in the relevant removal statute was
unconstitutionally vague, id. at 1210, the Petitioner moved to reopen
proceedings. An IJ again found him ineligible for asylum due to his conviction
and, independently, ineligible for deferral of removal under the Convention
Against Torture (“CAT”). The BIA affirmed, and the Petitioner filed a
petition for review in this court.
II. Law and Analysis
As a general matter, we “only have authority to review the BIA’s
decision, although we may also review the IJ’s decision when it has some
impact on the BIA’s decision, as when the BIA has adopted all or part of the
IJ’s reasoning.” Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir.
2010). “[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). See also Chen v. Gonzales, 470 F.3d 1131, 1134 (5th
Cir. 2006) (“Under the substantial evidence standard, reversal is improper
unless . . . . [t]he applicant . . . show[s] that the evidence is so compelling that
no reasonable factfinder could reach a contrary conclusion.”) (internal
citation and quotations omitted). The Court reviews questions of law de novo.
Miresles-Zuniga v. Holder, 743 F. 3d 110, 112 (5th Cir. 2014).
A. Eligibility for Asylum
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Under 8 U.S.C. § 1227(a)(2)(A)(iii), an “alien who is convicted of an
aggravated felony at any time after admission is deportable.” Section
1101(a)(43) of title 8 provides a list of offenses that qualify as aggravated
felonies, including, as relevant here, felony theft offenses, 8 U.S.C. §
1101(a)(43)(G); non-political felony crimes of violence as defined in 18
U.S.C. § 16(a), 8 U.S.C. § 1101(a)(43)(F); and attempts to commit the
substantive listed offenses, 8 U.S.C. § 1101(a)(43)(U). Although this court
lacks jurisdiction to review a final order of removal against an alien with an
aggravated felony conviction, whether a conviction constitutes an aggravated
felony is a question of law. Fosu v. Garland, 36 F.4th 634, 636-37 (5th Cir.
2022).
In addition to being removable for an aggravated felony conviction, an
alien is ineligible for asylum or withholding of removal, and subject, except in
instances inapplicable here, to mandatory denial of withholding of removal
under the CAT if he has a prior conviction for “a particularly serious crime.”
8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i) (asylum); 8 U.S.C. § 1231(b)(3)(B)(ii)
(withholding of removal); 8 C.F.R. § 1208.16(d)(2) (CAT withholding). For
asylum and CAT withholding, a particularly serious crime is defined in part
as an aggravated felony, regardless of the length of the sentence. §
1158(b)(2)(B)(i), § 1208.16(d)(3). In the withholding of removal context, a
particularly serious crime is an “aggravated felony . . . for which the alien has
been sentenced to an aggregate term of imprisonment of at least 5 years.” §
1231(b)(3)(B). Section 1101(a)(43) defines aggravated felonies for these
statutes and regulation as well.
To determine whether a prior conviction qualifies as one of the
offenses defined as aggravated felonies under § 1101(a)(43), we use the
categorical approach. Garcia v. Barr, 969 F.3d 129, 134 (5th Cir. 2020).
“Under that approach, [this Court] look[s] not to the facts of the underlying
case but instead to whether the statutory definition of the state crime
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categorically fits within the generic federal definition of the removable
offense.” Id. (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)) (internal
quotation marks omitted). We have determined that Texas aggravated
robbery under Texas Penal Code § 29.03 is divisible into separate crimes. See
United States v. Lerma, 877 F.3d 628, 633-34 (5th Cir. 2017).
The BIA concluded that the Petitioner’s conviction “constitutes an
aggravated felony theft offense under section 101(a)(43)(G).” The Petitioner
contends that “since the Texas definition of a robbery encompasses an
attempt to commit theft, it cannot categorically be defined as a theft offense,
as an actual taking or exercise of control over the property of another is not
needed for purposes of a conviction.” Thus, he submits, the BIA’s decision
was incorrect as a matter of law. As the BIA noted, however, “whether the
respondent’s conduct occurred ‘in an attempt to commit, during the
commission, or in immediate flight after the attempt or commission of theft,’
he was convicted of an offense involving either attempted theft, or theft,
either of which is an aggravated felony” under § 1101(a)(43)(G) (theft) or §
1101(a)(43)(U) (attempts). Neither the BIA nor this court needs to determine
whether a petitioner convicted under Texas Penal Code § 29.03 was
convicted for attempted theft or actual theft because, as a categorical matter,
it makes no difference.
Alternatively, the Petitioner is ineligible for asylum because his
conviction qualifies as a non-political felony crime of violence as defined in
18 U.S.C. § 16(a). In Lerma, 877 F.3d at 636, we concluded that the
Petitioner’s offense of conviction, Texas aggravated robbery under §
29.03(a)(2), satisfies the elements or force clause of § 924(e)(2)(B)(i), which
all but mirrors the force clause for a crime of violence under § 16(a). Section
16(a) defines “crime of violence” as “an offense that has as an element the
use, attempted use, or threatened use of physical force against the person or
property of another.” The language in § 924(e)(2)(B)(i) is identical except
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that it removes “or property.” Thus, § 16(a) is broader than §
924(e)(2)(B)(i); any offense which categorically falls under the latter also
categorically falls under the former. Although the BIA did not address this
argument, “affirmance may be warranted ‘where there is no realistic
possibility that . . . the BIA would have reached a different conclusion.’”
Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) (quoting Cao
He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005)).
B. Eligibility for Deferral under the CAT
While the BIA found that Rodriguez Gonzalez remained eligible for
deferral of removal under the CAT, see 8 C.F.R. § 1208.17(a), the BIA
concluded that he failed to make the required showing for such deferral. To
obtain CAT relief, a petitioner “must show [inter alia] that it is more likely
than not that []he will be tortured if []he returns to h[is] country of origin,”
and that the government of that country will acquiesce in or be willfully blind
to that torture. Martinez-Lopez v. Barr, 943 F.3d 766, 772 (5th Cir. 2019).
This court reviews factual findings underlying the denial of CAT protection
for substantial evidence. Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020).
Under that standard, the agency’s factual findings “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Id.(internal quotation marks and citation omitted).
In challenging the BIA’s decision, the Petitioner identifies no
evidence which casts doubt on the decisions of the IJ and the BIA, let alone
doubt sufficient to meet his burden. See Nasrallah, 140 S. Ct. at 1692. The
Petitioner neither conclusively demonstrates a likelihood that he will be
tortured nor that the Mexican government will acquiesce in or willfully
ignore his potential torture. As we have held, “potential instances of violence
committed by non-governmental actors against citizens, together with
speculation that the police might not prevent that violence, are generally
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insufficient to prove government acquiescence, especially if there is evidence
that the government prosecutes rogue or corrupt public officials.” Garcia v.
Holder, 756 F.3d 885, 892 (5th Cir. 2014). Thus, we agree with the BIA that
the Petitioner has not made the requisite showing for deferral of removal
under the CAT.
III. Conclusion
For the foregoing reasons, the petition for review is DENIED.
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