Juan Corleto v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION NOV 12 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN MANUEL CORLETO, AKA Jose No. 12-72250
Manuel Corleto,
Agency No. A094-448-803
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 4, 2015**
Pasadena, California
Before: FARRIS, TASHIMA, and BYBEE, Circuit Judges.
The facts and procedural posture of this case are known to the parties, and
we do not repeat them here. The Board of Immigration Appeals affirmed the
immigration judge’s decision that petitioner Jose Manuel Corleto was not entitled
*
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).
to (1) withholding of removal, (2) relief under the Convention Against Torture, or
(3) voluntary departure. We agree with the BIA’s determinations and deny
Corleto’s petition for review.
A. The BIA did not abuse its discretion when it found Corleto was barred from
seeking withholding of removal
The BIA denied Corleto’s request for withholding of removal because he
was convicted of a violation of California Penal Code § 288(c)(2), which the BIA
found qualified as a particularly serious crime. Section 1231(b)(3)(B)(ii) of Title 8
disqualifies an alien from obtaining withholding of removal if that “alien having
been convicted by a final judgment of a particularly serious crime is a danger to the
community of the United States.” To determine whether a prior conviction is
particularly serious, the court “examine[s] the nature of the conviction, the type of
sentence imposed, and the circumstances and underlying facts of the conviction.”
Matter of N-A-M-, 24 I. & N. Dec. 336, 338 (BIA 2007). “A particularly serious
crime determination is inherently discretionary and is to be reviewed under the
abuse-of-discretion standard.” Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir.
2012) (internal quotation omitted).
Corleto raises two arguments against the BIA’s “particularly serious crime”
determination: (1) the BIA ignored relevant information in the record, and (2) it
2
relied on California Penal Code § 288(c)(2)’s legal elements to effectively turn any
violation of this statute into a per se particularly serious crime.
The BIA applied the correct factors, considered all of the relevant
information, and did not treat Corleto’s conviction as a per se particularly serious
crime. The BIA considered Corleto and his brother’s testimony, including
Corleto’s admission that he abused his position of authority to commit a crime
against an elderly person because he was “desperate.” It considered the nature of
the crime he was convicted of: lascivious acts against a dependent person. It
considered the fact that Corleto was sentenced to five years of probation and 144
days in jail. The BIA weighed all of this evidence and concluded that Corleto had
committed a particularly serious crime barring withholding of removal. It did not
abuse its discretion in doing so.
B. Substantial evidence supports the BIA’s denial of relief under the
Convention Against Torture
To qualify for relief under the CAT here, Corleto must show it is “more
likely than not that he . . . would be tortured if removed” to his home country of El
Salvador. 8 C.F.R. 22 § 1208.16(c)(1) and (2) (2013); see Unuakhaulu v. Ashcroft,
416 F.3d 931, 939 (9th Cir. 2005). He must also show that this torture will be
“intentionally inflicted . . . by or at the instigation of or with the consent or
3
acquiescence of a public official or other person acting in an official capacity.” 8
C.F.R. § 1208.18(a)(1); 8 C.F.R. § 1208.16(c)(3).
We review the BIA’s findings under the Convention Against Torture for
substantial evidence. See INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) (2012);
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We uphold these findings
“unless the evidence compels a contrary result.” Gallegos-Vasquez v. Holder, 636
F.3d 1181, 1184 (9th Cir. 2011).
In finding that Corleto had failed to meet his burden to show he would more
likely then not be tortured with the acquiescence of his home country, the BIA
considered all of the relevant evidence in the record—including Corleto’s
testimony, the past threats against him, the country reports, and the harm inflicted
on his family. The BIA found important that the “government does attempt to
control gangs and prosecute them,” and that the El Salvodorian authorities
apprehended the perpetrators who attacked Corleto’s family, which “is evidence
that the government would not consent in the torture of [Corleto] by the gangs.”
Substantial evidence supports the BIA’s finding that Corleto failed to establish the
El Salvadorian government would acquiesce to future torture against him.
4
C. The BIA's discretionary denial of voluntary departure is not subject to
judicial review
We have recognized that “[t]he Illegal Immigration Reform and Immigrant
Responsibility Act abolished [our] authority to review discretionary grants and
denials of voluntary departure.” Gil v. Holder, 651 F.3d 1000, 1003 (9th Cir.
2011) (internal quotation omitted). Thus, we can only review questions of law
inherent in the BIA’s denial of voluntary departure. Id. at 1003.
Corleto's challenge to the BIA's denial of voluntary departure is, in essence,
a challenge to the BIA's exercise of discretion which, as we have explained above,
we are not authorized to review. To the extent that Corleto attempts to recast a
"traditional abuse of discretion challenge[]" as a legal challenge, his claims are not
sufficiently colorable to invoke our jurisdiction. See Martinez-Rosas v. Gonzales,
424 F.3d 926, 930 (9th Cir. 2005).
We DENY Corleto’s petition for review with respect to his claims for
withholding of removal and under the Convention Against Torture. We DISMISS
Coreleto’s petition for review with respect to his claim for voluntary departure.
5