Evangelina Palomino-Espinoza v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 28, 2019
• Docket: 16-73728
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 28 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVANGELINA PALOMINO- No. 16-73728 ESPINOZA, Agency No. A090-217-004 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted May 17, 2019** San Francisco, California

Before: IKUTA and CHRISTEN, Circuit Judges, and MORRIS,*** District Judge.

Petitioner Evangelina Palomino-Espinoza seeks review of the Board of

Immigration Appeals’s (BIA) denial of her applications for withholding of removal

* 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 Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. and for protection under the Convention Against Torture (CAT). Because the

parties are familiar with the facts, we do not recite them here.

Jurisdiction is proper pursuant to 8 U.S.C. § 1252. We review for abuse of

discretion the conclusion that an offense constitutes a particularly serious crime,

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015), and we

review the agency’s denial of CAT relief for substantial evidence. Ai Jun Zhi v.

Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). We deny the petition for review.

1. The Agency Did Not Abuse Its Discretion in Making Its Particularly

Serious Crime Determination. Palomino-Espinoza’s concessions in a 1990 pre-

sentence report (PSR) detailed her role in a conspiracy to distribute narcotics. She

argues that the agency abused its discretion by affording greater weight to the PSR

than it afforded to her 2014 testimony in immigration court about her role in the

conspiracy. Because “all reliable information may be considered in making a

particularly serious crime determination, including the conviction records and

sentencing information,” Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir.

2010) (internal quotation marks omitted), the agency did not abuse its discretion by

relying on the concessions included in the PSR.

Palomino-Espinoza also argues that the agency erred in its particularly

serious crime determination by failing to address each factor set forth in Matter of

2 Frentescu, 18 I & N Dec. 244 (BIA 1982). Our review of a particularly serious

crime determination “is limited to ensuring that the agency relied on the

appropriate factors and proper evidence[.]” Avendano-Hernandez, 800 F.3d at

1077 (internal quotation marks and brackets omitted). Frentescu requires that the

agency consider the nature of the conviction, the circumstances and underlying

facts of the conviction, and the type of sentence imposed. Anaya-Ortiz, 594 F.3d at

679. In this case, the Immigration Judge considered “all factors” enumerated in

Frentescu and adequately explained the determination that Palomino-Espinoza had

been convicted of a particularly serious crime. The BIA adopted and affirmed the

Immigration Judge’s decision. Because the agency correctly indicated that it was

relying on the appropriate Frentescu factors, the agency did not abuse its discretion

in determining that Palomino-Espinoza had been convicted of a particularly serious

crime.

2. Substantial Evidence Supports the Agency’s Denial of CAT

Protection. The agency did not err by concluding that Palomino-Espinoza failed to

demonstrate eligibility for deferral of removal under the CAT. To qualify for CAT

relief, a petitioner must establish that “‘it is more likely than not that he or she

would be tortured if removed to the proposed country of removal.’” Garcia-

Milian, v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R.

3 § 208.16(c)(2)). The torture must be “inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other person acting in an official

capacity.” Id. (internal quotation marks omitted). The record shows that the

Mexican government has taken steps to combat violence against women. “Even

though, as a practical matter, these steps have not achieved the desired goals of

resolving crimes and protecting citizens, they support the [agency’s] determination

that the government is not wilfully blind to attacks on women[.]” Id. at 1035.

Accordingly, even assuming that Palomino-Espinoza has demonstrated it is more

likely than not that she will be tortured if removed to Mexico, the record does not

compel the conclusion that the Mexican government will acquiesce in her torture.

PETITION FOR REVIEW DENIED.