Adan Guzman v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2021
• Docket: 18-72832
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ADAN E. GUZMAN, No. 18-72832

Petitioner, Agency No. A076-871-564

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 6, 2020** Seattle, Washington

Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,*** District Judge.

Adan E. Guzman, the petitioner, is a native of El Salvador who became a

Lawful Permanent Resident in the United States in 1999. He petitions for review

* 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 Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. of the Board of Immigration Appeals (BIA) denial of asylum, withholding of

removal, and deferral under the Convention Against Torture (CAT). Guzman

argues: (1) the IJ and BIA erred when they allowed the DHS to lodge additional

charges of removability because it violated collateral estoppel; (2) the IJ and BIA

erred by determining that Guzman’s conviction of the Washington State felony

harassment statute constituted a crime of violence and thus an aggravated felony;

and (3) the IJ and BIA erred by finding that Guzman did not show it was more

likely than not that he would be tortured if removed to El Salvador. We have

jurisdiction under 8 U.S.C. § 1252, and deny the petition.1

We review questions of law de novo and factual findings for substantial

evidence. Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). For a petitioner to

prevail under the substantial evidence standard, the petitioner must show that the

evidence compels the conclusion that these findings are erroneous. Id.

Guzman committed multiple crimes during his time in the United States, and

was originally found removable for committing an aggravated felony in relation to

a second-degree assault conviction in 2008. Intervening case law from this Court

rendered that conviction no longer an aggravated felony, United States v.

Robinson, 869 F.3d 933 (9th Cir. 2017), and the Department of Homeland Security

1 Because the parties are familiar with the facts, we do not discuss them at length here.

2 (DHS) lodged additional charges of removability against Guzman based on a

felony harassment conviction under RCW 9A.46.020(2)(b)(ii). Guzman applied

for asylum, withholding of removal, and withholding and deferral of removal

under CAT.

The Immigration Judge (IJ) first found that the DHS was not barred from

lodging additional charges of removability following remand from the Ninth

Circuit. Second, relying on U.S. v. Werle, 877 F.3d 879 (9th Cir. 2017), the IJ

determined that Guzman’s felony harassment conviction constituted a “crime of

violence” and thus an aggravated felony. The IJ also found that Guzman had not

shown it was more likely than not that he would be tortured if removed, and that he

could relocate within El Salvador. The BIA affirmed the IJ’s decision.

1. The DHS was not barred from lodging additional charges of removability

following the remand from this Court. 8 C.F.R. § 1003.30 provides that the DHS

may bring additional charges of removal “[a]t any time” during removal

proceedings. There was no final judgment barring relitigation. Therefore, Guzman

has not shown that the DHS was barred from lodging additional claims. See

Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1324 (9th Cir. 2006).

2. Guzman has not shown that the BIA erred in holding that a felony

harassment conviction under RCW 9A.46.020(2)(b)(ii) constitutes a crime of

violence and is thus an aggravated felony. In U.S. v. Werle, 877 F.3d 879 (9th Cir.

3 2017), we held that a conviction of felony harassment under the specified code

subsection constitutes a crime of violence under the federal sentencing guidelines.

Id. at 884. The language in the federal sentencing guidelines describing a crime of

violence is identical to the definition of a crime of a violence in the immigration

context. Compare 18 U.S.C. § 16(a) with FSG § 4B1.2. We see no reason to

interpret these identical phrases differently just because the underlying proceedings

here are immigration as opposed to sentencing guidelines. See Werle, 877 F.3d at

884 n.2 (“While § 16(a) includes threats of physical force to property, its language

is otherwise ‘identical in all material respects’ to § 4B1.2(a)(1).”). Thus, the BIA

did not err in relying on Werle in determining that Guzman’s felony harassment

conviction was for a crime of violence, rendering Guzman removable. 8 U.S.C. §

1227(a)(2)(A)(iii).

3. Guzman has not shown that he is more likely than not to be persecuted or

tortured if removed to El Salvador. 8 C.F.R. § 1208.16(c)(2). Guzman has not

countered evidence in the record indicating that he can safely relocate within El

Salvador. See Maldonado v. Lynch, 786 F.3d 1155, 1163-64 (9th Cir. 2015).

Guzman has not shown it is more likely than not he would be tortured if removed

to El Salvador. Accordingly, he does not qualify for deferral of removal under the

Convention Against Torture.

Guzman’s petition is DENIED.