Brian Guzman-Nunez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 31, 2020
• Docket: 19-70315
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 31 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIAN ROSALIO GUZMAN-NUNEZ, No. 19-70315 AKA Brian Guzman, AKA Bryan Guzman, Agency No. A099-060-254 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted March 5, 2020 Submission Withdrawn March 16, 2020 Resubmitted July 31, 2020 Pasadena, California

Before: NGUYEN, HURWITZ, and FRIEDLAND, Circuit Judges.

Brian Guzman-Nunez, a native and citizen of Belize, petitions for review of

an order of the Board of Immigration Appeals (“BIA”) holding that the

immigration judge (“IJ”) had jurisdiction over Guzman’s removal proceedings and

affirming the IJ’s decision denying Guzman asylum, withholding of removal under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture

(“CAT”). We deny the petition for review.

1. We hold that the IJ had jurisdiction over Guzman’s removal proceedings.

Our decision in Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019),

forecloses Guzman’s argument that, under Pereira v. Sessions, 138 S. Ct. 2105

(2018), the IJ lacked jurisdiction because his Notice to Appear (“NTA”) did not

contain the time and place information required by 8 U.S.C. § 1229(a). And our

decision in Aguilar Fermin v. Barr, 958 F.3d 887, 894-95, 895 n.4 (9th Cir. 2020),

petition for cert. filed (U.S. July 16, 2020) (No. 20-53), forecloses any contention

that the IJ lacked jurisdiction because Guzman’s NTA did not contain the place

information required by 8 C.F.R. §§ 1003.14(a), 1003.15(b)(6).

2. We hold that the BIA did not abuse its discretion in concluding that

Guzman was convicted of a particularly serious crime. Guzman was convicted of

possession of cocaine base for purposes of sale, which is presumptively a

particularly serious crime. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 945-50

(9th Cir. 2007). In concluding that Guzman failed to rebut this presumption, the

BIA relied on the IJ’s findings that “[t]wenty-one individual packets of rock

cocaine is not ‘de minimis or inconsequential,’” and that Guzman “was

encountered in an area frequented by members of the Hoover Crip gang” at a time

when Guzman was a member of the gang. Guzman emphasizes that the twenty-

2 one packets contained only a total of 6.49 grams of cocaine, but we are unable to

“reweigh evidence to determine if the crime was indeed particularly serious.”

Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014) (quoting Blandino-Medina

v. Holder, 712 F.3d 1338, 1343 (9th Cir. 2013)). Guzman also argues that there is

no basis for any connection between his “criminal activity” and “organized crime,”

but evidence in the record supports the IJ findings relied on by the BIA. And,

although Guzman further contends that he played only a “peripheral role” because

there was no evidence he “intend[ed] to sell the substance,” he was convicted of

possessing cocaine for the purpose of selling it.

3. We hold that substantial evidence supports the BIA’s determination that

Guzman failed to show that he would more likely than not be tortured if he were

removed to Belize.

The record does not compel the conclusion that it is more likely than not

Guzman would be tortured by Belize’s Gang Suppression Unit (“GSU”).

Guzman’s expert, Nyasha Laing, testified that Guzman could “certainly” be

targeted by the GSU and searched, harassed, detained, and/or surveilled. But the

treatment described by Laing does not rise to the level of torture. See Gui v. INS,

280 F.3d 1217, 1229-30 (9th Cir. 2002) (concluding that “wiretapping, hit-and-run

attempts to injure or kill [petitioner], detention, interrogation, and warrantless

searches . . . did not amount to torture”). Guzman’s documentary evidence does

3 recount incidents involving the GSU where its conduct might have risen to the

level of torture. But the record does not compel the conclusion that this conduct is

so widespread that it is more likely than not that Guzman will be subject to it, nor

has he shown that there is any particular reason to think he would be a target of

such conduct.

We also reject Guzman’s argument that it is more likely than not he would

be tortured because, upon arrival in Belize, he would be detained in facilities that

lack accommodations for his disability, making him vulnerable to infection or

injury. “[I]nhumane conditions . . . do not, in and of themselves, constitute

torture”; it is only “the intentional denial of medical care as a form of punishment

[that can] suffice to establish a CAT claim.” Cole v. Holder, 659 F.3d 762, 773-74

(9th Cir. 2011). Guzman has failed to present evidence indicating that Belizean

officials created “conditions for the specific purpose of inflicting suffering upon”

detainees with disabilities. Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008).

Finally, Guzman contends that it is more likely than not he would be

tortured because he would probably be detained in prison, where he would be the

victim of gang violence and subsequently be denied medical treatment for his

injuries. Although Laing appeared to testify at one point that Belizean prison

officials sometimes intentionally withhold medical treatment, she also testified at

another point that she was “not clear [on] whether the prison ha[d] adequate

4 medical facilities and . . . is withholding them, or whether there aren’t adequate

medical facilities.” Given Laing’s inconsistent testimony, the record does not

compel the conclusion that the Belizean government intentionally withholds

medical care as punishment, such that Guzman could have a viable CAT claim.

See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000) (“Under the

substantial evidence standard of review, the court of appeals must affirm when it is

possible to draw two inconsistent conclusions from the evidence.”).1

PETITION FOR REVIEW DENIED.

1 To the extent Guzman argues that his vulnerability to gang violence in prison is sufficient to show that he is entitled to CAT relief, and assuming he has not waived this contention, the record does not compel the conclusion that such violence is so routine that he would more likely than not be tortured. Cf. Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001).