Avila v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 28, 2023
• Docket: 21-1138
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HECTOR LEOBARDO AVILA, No. 21-1138 Agency No. A092-463-824 Petitioner,

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

Respondent.

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

Submitted April 17, 2023**

Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.

Hector Leobardo Avila, a native and citizen of Mexico, petitions pro se

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his applications for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We 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). de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th

Cir. 2005). We review for substantial evidence the agency’s factual findings.

Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny in part

and dismiss in part the petition for review.

The BIA did not err in concluding that Avila’s aggravated felony

conviction in violation of California Penal Code § 211 and resulting five-year

sentence constitutes a particularly serious crime rendering him ineligible for

asylum and withholding of removal. See 8 U.S.C. §§ 1101(a)(43)(G),

1158(b)(2)(A)(ii), 1158(b)(2)(B)(i), 1231(b)(3)(B); United States v. Martinez-

Hernandez, 932 F.3d 1198, 1206-07 (9th Cir. 2019) (conviction under

California Penal Code § 211 is categorically an aggravated felony theft offense).

Thus, Avila’s asylum and withholding of removal claims fail.

Substantial evidence supports the denial of CAT deferral of removal

because Avila failed to show it is more likely than not he would be tortured by

or with the consent or acquiescence of the government if returned to Mexico.

See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

To the extent Avila contends his counsel’s performance was ineffective

before the IJ, we lack jurisdiction to consider the issue because he failed to raise

it in his brief before the BIA. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644

(9th Cir. 2012) (court lacks jurisdiction to consider unexhausted claims that

could have been corrected by the BIA, including ineffective assistance of

counsel); see also Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en

2 21-1138 banc) (when a petitioner files a brief before the BIA, he is deemed to have

exhausted only the issues raised and argued in that brief).

To the extent Avila contends the BIA violated his right to due process by

failing to send him a copy of the IJ decision, he failed to show prejudice. See

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice

to prevail on a due process claim).

The stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 21-1138