Carlos Ordaz-Moreno v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION NOV 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALBERTO ORDAZ- No. 10-71963
MORENO, AKA Carlos Ordaz-Moreno,
Agency No. A092-026-127
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2013**
San Francisco, California
Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.
Carlos Alberto Ordaz-Moreno appeals the Board of Immigration Appeals’s
(“BIA”) decision concluding he was ineligible for (1) cancellation of removal
because he had been convicted of an aggravated felony; and (2) deferral of removal
*
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).
under the Convention Against Torture (CAT) because his allegation of government
involvement was too speculative. We have jurisdiction pursuant to 8 U.S.C.
§ 1252.
The BIA correctly concluded that Ordaz-Moreno’s Arizona conviction for
attempted transportation of marijuana for sale constitutes an aggravated felony
conviction under the Immigration and Nationality Act. Transportation of
marijuana for sale, see Ariz. Rev. Stat. § 13-3405(A)(4), qualifies as an illicit
trafficking crime under 8 U.S.C. § 1101(a)(43)(B). We have concluded that
Arizona’s definition of attempt, see Ariz. Rev. Stat. § 13-1001(A), is coextensive
with the federal definition. United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir.
2008). While Taylor was decided in the context of a criminal sentencing
proceeding, there is no basis to alter this statutory construction. “[W]here a statute
‘has both criminal and noncriminal applications,’ the statute should be consistently
interpreted in both criminal and noncriminal, i.e., immigration, applications.”
Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 n.3 (9th Cir. 2005) (quoting
Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004)). Ordaz-Moreno’s aggravated felony
conviction renders him ineligible for cancellation of removal. 8 U.S.C.
§ 1229b(a)(3).
The BIA did not err in denying Ordaz-Moreno’s deferral of removal claim
under the CAT. Substantial evidence supports the BIA’s conclusion that Ordaz-
Moreno, if returned to Mexico, is not “more likely than not” to suffer torture with
the consent or acquiescence of a public official. 8 C.F.R. § 1208.17(a). Ordaz-
Moreno offered no evidence that Mexican officials knew of or supported instances
of torture carried out by Chapo’s organization. Moreover, the BIA correctly
concluded that Ordaz-Moreno did not proffer evidence that corruption in Mexico
was so widespread that it may be presumed in every case. For these reasons, the
record does not compel the conclusion that Mexican officials will acquiesce to
torture carried out by Chapo or his associates. See Santos-Lemus v. Mukasey, 542
F.3d 738, 747–48 (9th Cir. 2008).
PETITION DENIED.
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