Dung Dang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 4, 2021
• Docket: 20-72093
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 4 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DUNG TUAN DANG, AKA Dung Dang, No. 20-72093

Petitioner, Agency No. A042-490-433

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

Respondent.

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

Argued and Submitted September 14, 2021 San Francisco, California

Before: WALLACE, SCHROEDER, and FORREST, Circuit Judges.

Petitioner Dung Dang, a citizen of Vietnam, petitions for review of the

decision of the Board of Immigration Appeals denying his request for withholding

of removal and for deferral of removal under the Convention Against Torture.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The Board denied withholding of removal, concluding that Petitioner was

ineligible for such relief because his California conviction of assault with means to

cause great bodily injury was a “particularly serious crime.” 8 U.S.C.

§ 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Petitioner does not dispute the

conviction or the nature of his actions, but contends that the immigration judge

failed to consider his underlying mental health disorders, including depression and

substance abuse. See Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 (9th Cir.

2018) (holding that courts may consider mental health evidence when determining

if a conviction is a “particularly serious crime”). The immigration judge expressly

referred, however, to Petitioner’s substance abuse, loneliness, and depression, and

concluded that the nature of the offense—involving property damage and threat of

violent injury—nevertheless rendered Petitioner ineligible for withholding. This

court cannot re-weigh the evidence to reach a different conclusion as to the

seriousness of the crime. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077

(9th Cir. 2015).

Petitioner failed to show that he had suffered torture in the past or that it was

more likely than not that he would be tortured at the hands of the government or

with its acquiescence. See 8 C.F.R. § 1208.16(c)(2); 8 C.F.R. § 1208.18(a)(1).

The record, at most, establishes that Amerasians have been severely discriminated

2 against in Vietnam. No evidence pertaining to Petitioner himself suggests any

likelihood of torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir.

2008) (denying CAT relief because petitioner had shown that torture takes place in

the proposed country of removal but had not shown that petitioner specifically

would be tortured).

Petitioner’s challenge to the jurisdiction of the Immigration Court is

foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 894 (9th Cir. 2020).

The temporary stay of removal remains in effect until the mandate issues.

The motion for stay of removal is otherwise denied.

The petition for review is DENIED.