Pedro Rosas-Felix v. Robert Wilkinson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO ROSAS-FELIX, No. 19-72337
Petitioner, Agency No. A077-218-308
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 12, 2021**
San Francisco, California
Before: BERZON, CHRISTEN, and BADE, Circuit Judges.
Pedro Rosas-Felix, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (BIA) dismissal of his appeal from an
Immigration Judge’s (IJ) decision denying his application for deferral of removal
under the Convention Against Torture (CAT). Rosas-Felix also seeks review of
*
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).
the BIA’s decision not to disturb the IJ’s determination that his conviction
constituted a particularly serious crime (PSC), and that, as a result, he is statutorily
ineligible for asylum and withholding of removal. Because the parties are familiar
with the factual and procedural background of this case, we will not restate it here.
We review the agency’s “legal conclusions de novo and its factual findings
for substantial evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059
(9th Cir. 2017) (en banc) (citations omitted). Exercising jurisdiction under
8 U.S.C. § 1252, we deny the petition for review.
1. Substantial evidence supports the BIA’s denial of Rosas-Felix’s
application for deferral of removal under CAT because the record does not compel
the conclusion that it is more likely than not that he will be tortured by or with the
consent or acquiescence of the government if returned to Mexico. See Zheng v.
Holder, 644 F.3d 829, 835–36 (9th Cir. 2011); Duran-Rodriguez v. Barr, 918 F.3d
1025, 1029 (9th Cir. 2019). The BIA reasonably determined that the incidents
Rosas-Felix experienced—including two beatings at the hands of unknown
individuals in a United States prison, receipt of a threatening letter, and an incident
in which his truck was shot at in Mexicali—did not establish that he would be
subjected to torture if removed to Mexico, even when viewed in conjunction with
the deaths, kidnapping, and harm his family members had suffered. Absent
evidence of any “particularized threat of torture” beyond that which all citizens of
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Mexico face, Rosas-Felix cannot obtain relief under CAT. Dhital v. Mukasey, 532
F.3d 1044, 1051 (9th Cir. 2008) (citation omitted).
Further, the failure of the police to bring the murderers of Rosas-Felix’s
father and brother to justice “is not in itself sufficient to establish acquiescence in
the crime.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
Although Rosas-Felix testified that his family fears the police because they believe
the police work alongside organized crime, he admitted that he has no evidence of
such corruption. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017)
(“Police ineffectiveness is not enough to establish an entitlement to relief, absent
evidence of corruption or other inability or unwillingness to oppose criminal
organizations.” (internal quotation marks and citation omitted)).
2. The BIA did not abuse its discretion in declining to remand to allow
Rosas-Felix to withdraw his attorney’s concession that his conviction constitutes a
PSC rendering him ineligible for asylum and withholding of removal. Absent
“egregious circumstances,” such as an “intervening change in law,” an individual
in immigration proceedings is bound by his attorney’s admissions. Santiago-
Rodriguez v. Holder, 657 F.3d 820, 830–31 (9th Cir. 2011) (citations omitted).
Rosas-Felix asserts that this court’s intervening decision in Lorenzo v. Sessions,
902 F.3d 930 (9th Cir. 2018), withdrawn by Lorenzo v. Whitaker, 913 F.3d 930(9th Cir. 2019), establishes that his conviction did not qualify as a controlled
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substance offense under 8 U.S.C. § 1227(a)(2)(B)(i); therefore, he contends his
conviction would also not qualify as an aggravated felony relating to illicit
trafficking in a controlled substance, making his concession that his conviction was
a PSC invalid. But Lorenzo v. Sessions was withdrawn, Whitaker, 913 F.3d at 930;
the superseding disposition, 752 F. App’x 482 (9th Cir. 2019), is a non-
precedential unpublished memorandum decision and did not change the law, see In
re Burns, 974 F.2d 1064, 1068 (9th Cir. 1992).
In any event, United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir.
2020), forecloses any contention that a conviction for possessing
methamphetamine for sale under Cal. Health & Safety Code § 11379 does not fit
the federal definition of controlled substance and, therefore, cannot constitute a
drug trafficking aggravated felony disqualifying Rosas-Felix from asylum and
cancellation of removal. There, this court held “as a matter of law, that
California’s definition of methamphetamine is a categorical match to the definition
under the federal [Controlled Substances Act].” Id. at 1154 n.5.
PETITION FOR REVIEW DENIED.
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