Carlos Cruz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 11, 2019
• Docket: 15-73811
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS ROBERT CRUZ, No. 15-73811

Petitioner, Agency No. A095-747-476

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted July 18, 2019** San Francisco, California

Before: PAEZ and RAWLINSON, Circuit Judges, and ANELLO,*** District Judge.

Carlos Robert Cruz, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeal’s order dismissing his appeal from an

* 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 Michael M. Anello, United States District Judge for the Southern District of California, sitting by designation. immigration judge’s decision finding him ineligible for withholding of removal

and denying relief under the Convention Against Torture (“CAT”). Our

jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the

agency’s determination that a petitioner’s past conviction constituted a

“particularly serious crime” rendering him ineligible for withholding of removal.

Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014). We review for substantial

evidence the denial of CAT relief. Id. at 1127. We deny the petition for review.

1. The agency did not abuse its discretion in concluding that, under the

circumstances here, Cruz’s conviction for carrying a loaded stolen firearm in

public under California Penal Code § 12031(a)(1) with an enhancement for street

gang activity pursuant to California Penal Code § 186.22(a) was a particularly

serious crime, rendering him ineligible for withholding of removal. See 8 U.S.C.

§ 1231(b)(3)(B)(ii); Konou, 750 F.3d at 1126–27 (listing factors to consider in

determining whether a crime is particularly serious and finding no abuse of

discretion in that determination); see also Blandino-Medina v. Holder, 712 F.3d

1338, 1348 (9th Cir. 2013) (“[N]o Ninth Circuit decision [holds that the BIA can

make the ‘particularly serious crime’ determination based solely on the elements of

the offense] and our considered analysis of the statute at issue compels a contrary

conclusion.”). Because the particularly serious crime determination is dispositive,

we do not, and the BIA was not required to, address Cruz’s other contentions

2 15-73811 regarding eligibility for withholding of removal. See Simeonov v. Ashcroft, 371

F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues

unnecessary to the results they reach).

2. Substantial evidence supports the agency’s denial of protection under CAT,

where the evidence shows only the general possibility of torture, and not a

likelihood that Cruz will be targeted for harm. See Almaghzar v. Gonzales, 457

F.3d 915, 922–23 (9th Cir. 2006) (stating that general reports indicating torture

occurs in a petitioner’s home country do not compel conclusion a particular

petitioner will be targeted); see also Arbid v. Holder, 700 F.3d 379, 385–86 (9th

Cir. 2012) (recognizing that to reverse the agency’s factual findings when

reviewing for substantial evidence, the record must compel a contrary conclusion).

PETITION FOR REVIEW DENIED.

3 15-73811