Felix Fernandez-Mejia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 30, 2021
• Docket: 20-70412
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FELIX RICARDO FERNANDEZ-MEJIA, No. 20-70412 AKA Felix Fernandez-Mejia, Agency No. A021-148-380 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted March 3, 2021 San Francisco, California

Before: WARDLAW and GOULD, Circuit Judges, and PREGERSON,** District Judge.

Felix Ricardo Fernandez-Mejia (“Fernandez”) petitions for review of the

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

Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. removal, and CAT protection. Because the parties are familiar with the facts and

procedural history of the case, we do not recite them here. We have jurisdiction

under 8 U.S.C. § 1252(a)(1), and we deny the petition.

The petition for review is denied for the following reasons.1

1. Fernandez is incorrect that jurisdiction did not vest with the immigration

court because his Notice to Appear (“NTA”) did not have the time, date, or location

of his removal proceedings. In Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th

Cir. 2019) and Aguilar Fermin v. Barr, 958 F.3d 887, 893–95 (9th Cir. 2020), we

have held the regulation requiring this information is not jurisdictional, and any

defect in the NTA caused by leaving out this information can be cured if it is given

in a later issued Notice of Hearing. Fernandez was given the time, date, and location

of the initial hearing in a later issued Notice of Hearing. Any defect in the NTA was

thus remedied, and so the immigration court had jurisdiction.

2. Fernandez’s Wyoming conviction for attempted voluntary manslaughter

categorically is a crime of violence aggravated felony. If an applicant has been

convicted of a particularly serious crime, the applicant is ineligible for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”) and the

Convention Against Torture (“CAT”). 8 U.S.C. §§ 1158(b)(2)(A)(ii),

1 Fernandez has also filed a Motion to Stay Removal and a Motion to Take Judicial Notice. Fernandez’s Motion to Stay Removal is DENIED and Fernandez’s Motion to Take Judicial Notice is GRANTED.

2 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Under asylum law, an applicant “shall

be considered to have been convicted of a particularly serious crime” if the applicant

has been convicted of an aggravated felony. 8 U.S.C. § 1158(b)(2)(B)(i). As to

withholding of removal, an applicant who has been “convicted of an aggravated

felony (or felonies) for which the alien has been sentenced to an aggregate term of

imprisonment of at least 5 years shall be considered to have committed a particularly

serious crime.” 8 U.S.C. § 1231(b)(3)(B)(iv). These convictions are considered

“per se” particularly serious crimes. Blandino-Medina v. Holder, 712 F.3d 1338,

1345 (9th Cir. 2013).

To determine if Fernandez’s conviction for attempted voluntary manslaughter

is an aggravated felony, we follow the “categorical approach.” See United States v.

Valdavinos-Torres, 704 F.3d 679, 686–87 (9th Cir. 2012) (citing Taylor v. United

States, 495 U.S. 575, 602 (1990)).

Further, a “crime of violence” is defined under 18 U.S.C. § 16(a) as “an

offense that has as an element the use, attempted use, or threatened use of physical

force against the person or property of another.” “[U]se of physical force” under 18

U.S.C. § 16(a) “requires active employment,” and so, requires “a higher degree of

intent than negligent or merely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1,

9 (2004). Physical force under 18 U.S.C. § 16(a) means “violent force—that is, force

3 capable of causing physical pain or injury to another person.” Johnson v. United

States, 559 U.S. 133, 140 (2010) (emphasis in original).

First, attempted voluntary manslaughter has the requisite mental state to be

considered “active employment” of force, because it is both a specific intent crime

and involves intentional conduct. Reilly v. State, 55 P.3d 1259, 1262 (Wyo. 2002),

abrogated on other grounds by Granzer v. State, 193 P.3d 266 (Wyo. 2008).

Second, voluntary manslaughter involves violent, physical force. Because the

force used in voluntary manslaughter is force than can cause death, an attempt to

commit the act results from “attempted use of physical force.” See United States v.

Castelman, 572 U.S. 157, 169–170 (2014) (concluding that crimes prohibiting

causing bodily injury are crimes of domestic violence because “‘bodily injury’ must

result from ‘physical force’”). Fernandez’s conviction is a per se particularly serious

crime that precludes both asylum and withholding of removal, since it is an

aggravated felony for which he was sentenced to at least five years in prison. Thus,

Fernandez is ineligible for asylum or withholding of removal.

3. Substantial evidence supports the agency’s finding that Fernandez did not

establish eligibility for CAT deferral. 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a). First,

Fernandez did not show a clear probability of future torture or provide evidence of

past torture. Substantial evidence supports the IJ’s finding that Fernandez could

relocate in Honduras to avoid torture, that his mental illness and homelessness did

4 not establish an individualized risk of torture, and that he would be targeted for

torture. Second, substantial evidence also supports the conclusion that Fernandez

did not establish a clear probability of government acquiescence to torture. The IJ

properly based this conclusion on the fact that Fernandez was able to file multiple

police reports, and that the police followed up on at least one occasion. Further,

country conditions evidence suggests that the Honduran government has taken

measures to fight crime and corruption. Thus, the IJ correctly determined the

evidence did not establish a clear probability the Honduran government would

acquiesce to torture.

PETITION DENIED.