Carlos Robles Miranda v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2021
• Docket: 19-72243
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS ROBLES MIRANDA, No. 19-72243

Petitioner, Agency No. A097-562-066

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

Respondent.

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

Submitted May 13, 2021** San Francisco, California

Before: WALLACE, NGUYEN, and COLLINS, Circuit Judges.

Carlos Robles Miranda, a native and citizen of Mexico, petitions for review

of a decision of the Board of Immigration Appeals (“BIA”) affirming the

immigration judge’s (“IJ”) denial of cancellation of removal, withholding 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). removal, and relief under the Convention Against Torture (“CAT”). We have

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

1. Robles Miranda argues that under Pereira v. Sessions, 138 S. Ct. 2105

(2018), his Notice to Appear (“NTA”) did not vest jurisdiction with the

immigration court because it lacked the address of the immigration court where the

NTA was filed, as required by 8 C.F.R. § 1003.15(b). We have held, however, that

Pereira “simply has no application” to the question of immigration court

jurisdiction. Karingithi v. Whitaker, 913 F.3d 1158, 1161 (9th Cir. 2019).

Moreover, an NTA may vest jurisdiction when it lacks the time and date of the

initial removal hearing, id. at 1160–62, and when it lacks the address of the

immigration court where the NTA is filed, Aguilar Fermin v. Barr, 958 F.3d 887,

895 (9th Cir. 2020).

2. Under 8 U.S.C. § 1229b(b)(1)(C), any noncitizen convicted of a crime

of domestic violence is ineligible for cancellation of removal. “‘[C]rime of

domestic violence’ means any crime of violence (as defined in [18 U.S.C. § 16])

against a person committed by” a domestic partner. 8 U.S.C. § 1227(a)(2)(E)(i).

Robles Miranda is ineligible for cancellation of removal because he was convicted

under California Penal Code (“CPC”) § 273.5, which is categorically a crime of

domestic violence within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). Carrillo v.

Holder, 781 F.3d 1155, 1159 (9th Cir. 2015) (holding that CPC § 273.5’s

2 application to violence against “cohabitants” does not render the statute broader

than the generic offense).

3. Robles Miranda has not met his burden to show that “Mexican males

returning from the United States perceived with wealth” is a sufficiently socially

distinct or particularized group. We have recently held that a nearly identical

(albeit gender neutral) group was too broad to be cognizable. Barbosa v. Barr, 926

F.3d 1053, 1059–60 (9th Cir. 2019) (“individuals returning to Mexico from the

United States who are believed to be wealthy” (cleaned up)); see also Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (same, as to “returning

Mexicans from the United States”); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229

(9th Cir. 2016) (same, as to “imputed wealthy Americans” returning to Mexico).

Moreover, the record evidence does not show that returnees (male, perceived

wealthy, or otherwise) are recognized as a particular social group by Mexican

society as a whole or by potential persecutors.

4. Substantial evidence supports the IJ’s denial of relief under the CAT.

The BIA acknowledged that Robles Miranda offered evidence of government

acquiescence in violent crimes, but it affirmed the IJ’s finding that Robles Miranda

had not shown that he suffered past torture or that he was more likely than not to

be tortured in Mexico. The record does not compel a contrary conclusion.

PETITION DENIED.