Ivonne Contreras Cruz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2021
• Docket: 20-71141
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

IVONNE CONTRERAS CRUZ, No. 20-71141

Petitioner, Agency No. A044-162-916

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

Respondent.

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

Submitted May 14, 2021** San Francisco, California

Before: HAWKINS and MILLER, Circuit Judges, and MORRIS,*** District Judge.

Petitioner Ivonne Contreras Cruz (“Contreras”) seeks judicial review of the

Board of Immigration Appeals (“Board”) decision affirming the denial of her

* 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. application for withholding of removal and protection under the Convention

Against Torture (“CAT”) .1 We have jurisdiction under 8 U.S.C. § 1252(a)(1), and

we deny the petition, in part, and remand, in remaining part.

1. The Board applied the proper legal standard and did not abuse its

discretion when it determined that Contreras had been convicted of a particularly

serious crime, thereby rendering her ineligible for withholding of removal. 8

U.S.C. § 1231(b)(3)(B)(ii); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077

(9th Cir. 2015). The law limits our review to “whether ‘the agency relied on the

appropriate factors and proper evidence.’” Flores-Vega v. Barr, 932 F.3d 878, 884

(9th Cir. 2019) (quoting Avendano-Hernandez, 800 F.3d at 1077). The Board

agreed with and adopted the immigration judge’s decision finding Contreras

ineligible for withholding of removal and protection under the CAT. “When the

[Board] adopts an [immigration judge]’s decision, but also adds its own reasoning,

as occurred here, we review both decisions.” Kaur v. Ashcroft, 388 F.3d 734, 736

(9th Cir. 2004).

On review, Contreras argues that the immigration judge failed to rely on

proper evidence in its determination that 29.50 kilograms of methamphetamine did

1 Although Contreras’s original application included a request for asylum, the Board determined that Contreras’s concession regarding her aggravated felony conviction rendered her ineligible for asylum under 8 U.S.C. § 1158(b)(2)(B)(i). Contreras did not raise a challenge to this determination in her petition to this Court.

2 not qualify as a “very small quantity of controlled substance” under Matter of Y-L-,

23 I. & N. Dec. 270, 276 (Op. Att’y Gen. 2002). Contreras further contends that

the immigration judge misapplied the correct legal standard in determining the

seriousness of her drug trafficking crime by failing to consider Contreras’s mental

health and whether she had demonstrated “extraordinary and compelling

circumstances.”

Given Contreras’s concession that her conviction for importation of

methamphetamine under 21 U.S.C. §§ 952, 960 qualifies as an aggravated felony

drug trafficking crime, the immigration judge correctly concluded that the Matter

of Y-L- presumption applies in this case. Miguel-Miguel v. Gonzales, 500 F.3d 941,

949 (9th Cir. 2007).

The first factor in Matter of Y-L- requires Contreras to demonstrate that her

crime of conviction involved “a very small quantity of controlled substance.” 23 I.

& N. Dec. at 276. To determine the amount of methamphetamine at issue in

Contreras’s offense, the immigration judge looked to the criminal complaint and

probable cause statement filed against Contreras in federal district court. These

conviction documents revealed that Contreras imported 29.50 kilograms of

methamphetamine. Contreras testified before the immigration judge that she did

not know the quantity of methamphetamine contained in her vehicle when she

attempted to enter the United States. Contreras offered no testimony or evidence

3 that the methamphetamine she transported amounted to a “very small quantity of

controlled substance.” Matter of Y-L-, 23 I. & N. Dec. at 276. Contreras failed to

meet a threshold factor in rebutting the particularly serious crime presumption. Id.

2. We remand in part to allow the Board to reconsider its determination

that Contreras does not qualify for deferral of removal under the CAT. The

government asks us to remand on this issue to “allow the agency to consider other

testimony relating to the probability of future torture,” and “to reconsider its

acquiescence finding.” Contreras requested deferral of removal under the CAT,

claiming that her abusive husband, Felipe, would seriously injure or kill Contreras

if she returned to Mexico, and that Felipe’s family connections to the Mexican

police and government would lead the Mexican government to acquiesce in

Contreras’s torture. Contreras does not oppose a remand, so we grant the

government’s request.

PETITION DENIED, in part, and REMANDED, in remaining part.