Eleazar Herrera-Davila v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 5, 2018
• Docket: 15-73547
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 05 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELEAZAR HERRERA-DAVILA, AKA No. 15-73547 Eleazar Herera-Davila, AKA Eleasar Herrera, AKA Eleasar Davila Herrera, Agency No. A200-963-713

Petitioner, MEMORANDUM* v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted April 9, 2018 San Francisco, California

Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. Eleazar Herrera-Davila, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of an

Immigration Judge’s decision determining he was ineligible for asylum and

withholding of removal due to a prior conviction for a particularly serious crime,

and denying Herrera-Davila’s Convention Against Torture (“CAT”) claim because

he failed to show that it was more likely than not that he would be tortured on his

return to Mexico. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny

the petition. Because the parties are familiar with the history of the case, we need

not recount it here.

I

The BIA did not abuse its discretion in determining that Herrera-Davila’s

prior conviction constituted a “particularly serious crime.” The Attorney General

may “designate offenses as particularly serious crimes through case-by-case

adjudication.” Adendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir.

2015). In the case-by-case analysis, the agency examines “the nature of the

conviction, the circumstances and underlying facts of the conviction, the type of

sentence imposed, and . . . whether the type and circumstances of the crime

indicate that the alien will be a danger to the community.” Matter of Frentescu, 18

I. & N. Dec. 244 (BIA 1982). The BIA did not abuse its discretion in applying the

2 Frentescu factors to Herrera-Davila’s prior conviction for felony drug possession.

In determining that Herrera-Davila’s prior conviction qualified as a “particularly

serious crime,” the BIA conducted an individualized analysis and considered the

nature and the circumstances of the conviction, the length of the sentence imposed,

Herrera-Davila’s level of involvement, and the risks and dangers of drugs.

Herrera-Davila argues the agency must first analyze the elements of the

offense to determine whether it qualifies as a particularly serious offense pursuant

to Matter of N-A-M, 24 I & N Dec. 336 (BIA 2007), and Nev. Rev. Stat. § 456.336

categorically cannot qualify because it is a mere possession offense. However, the

question under N-A-M is whether the offense “potentially” qualifies as a

“particularly serious crime.” 24 I&N Dec. At 337. Section 456.336 carries

penalties commensurate with a traditional drug trafficking offense, depending on

the quantity of drugs involved. Therefore, it “potentially” qualifies, and we move

to the second stage of the analysis to conduct an individualized assessment. Here,

given the large quantity of marijuana–150 pounds–and the presence of firearms,

the BIA was well within its discretion, on an individualized determination, to

categorize this conviction as “particularly serious.”

3 II

Substantial evidence supports the BIA’s determination that Herrera-Davila is

ineligible for deferral of removal under the CAT because he failed to prove a

likelihood of future torture. To be eligible for deferral of removal under the CAT,

the applicant must establish that if removed to the proposed country of removal, he

“is more likely than not to be tortured.” 8 C.F.R. § 1208.17(a). Herrera-Davila’s

testimony as to his fear to return to Mexico did not establish it was more likely

than not he would be tortured upon his return. Herrera-Davila did not provide any

evidence that he was tortured in the past. Although Herrera-Davila testified he

feared someone involved in the underlying drug possession would kill him if he

returned to Mexico, he testified that he did not know if that person actually resided

in Mexico, and if so, where he resided; and he did not provide sufficient detail as to

how his return to Mexico would be discovered.

PETITION DENIED.