Jaime Cedillos Flores v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2020
• Docket: 18-72527
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAIME G. CEDILLOS FLORES, AKA No. 18-72527 Jaime Geovany Cedillos, AKA Jamie Geovany Cedillos, Agency No. A072-452-785

Petitioner, MEMORANDUM* v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted January 8, 2020** San Francisco, California

Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and HILLMAN,*** District Judge.

* 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 Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. Petitioner Jaime Cedillos Flores, a native and citizen of El Salvador, seeks

review of a Board of Immigration Appeals (“BIA”) decision affirming an

Immigration Judge’s denial of withholding of removal under 8 U.S.C. § 1231(b)(3)

and of relief under the Convention Against Torture (“CAT”), see 8 C.F.R.

§ 1208.16(c). We review for abuse of discretion the agency’s particularly serious

crime determination, Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012), and

review for substantial evidence the denial of CAT relief, Arteaga v. Mukasey, 511

F.3d 940, 944 (9th Cir. 2007). We deny the petition for review.

The agency did not abuse its discretion in determining that Cedillos Flores’s

conviction for aggravated assault with a deadly weapon in violation of Texas Penal

Code § 22.02(a)(2) qualifies as a particularly serious crime that renders him

statutorily ineligible for withholding of removal. See Avendano-Hernandez v.

Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (explaining that our review of an

agency’s particularly serious crime determination is “limited to ensuring that the

agency relied on the ‘appropriate factors’ and ‘[]proper evidence’ to reach this

conclusion” (alteration in original) (quoting Anaya-Ortiz v. Holder, 594 F.3d 673,

676 (9th Cir. 2010))). Because Cedillos Flores received a sentence of fewer than

five years for that conviction, the agency applied the modified Matter of Frentescu,

18 I. & N. Dec. 244 (BIA 1982) factors, examining the type of sentence imposed,

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

2 conviction. See In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007). Applying

these factors, the agency found a two-year prison sentence to be lengthy and

interpreted the underlying facts of the conviction—showing that Cedillos Flores

pointed a firearm at the victim, demanded the victim give him a baseball bat, and

laughed and drove away—to indicate the conviction constituted a particularly

serious crime. Cedillos Flores does not argue that the agency applied the incorrect

standard or did not consider the proper evidence—he contends only that the agency

reached the wrong conclusions. We lack jurisdiction to address those arguments.

Avendano-Hernandez, 800 F.3d at 1077 (explaining that we lack jurisdiction to

“reweigh the evidence and reach our own determination about the crime’s

seriousness”).

The record does not compel the conclusion that it was more likely than not

that Cedillos Flores would be tortured by or with the acquiescence of government

officials as required for CAT relief. See 8 C.F.R. § 1208.17; Sanjaa v. Sessions,

863 F.3d 1161, 1164 (9th Cir. 2017) (“To reverse the BIA” when it has denied

CAT relief, “we must determine ‘that the evidence not only supports [a contrary]

conclusion, but compels it—and also compels the further conclusion’ that the

petitioner meets the requisite standard for obtaining relief.” (alterations in original)

(quoting Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014))).

3 Cedillos Flores first fails to establish a clear probability that he will face

torture from the Salvadoran gang Mara 18 with the government’s acquiescence.

The past incidents of abuse and harassment he testified the gang subjected him to

do not clearly rise to the level of torture. Nor did Cedillos Flores introduce any

specific, individualized, non-speculative evidence establishing that the government

had acquiesced in the gang’s treatment of Cedillos Flores in the past or would

acquiesce in torture in the future. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-

52 (9th Cir. 2010) (explaining that “generalized evidence of violence and crime” in

the country of origin was not “particular to” the petitioner and was insufficient to

warrant CAT protection).

Cedillos Flores also fails to establish a clear probability that he will face

torture from the police themselves. Although Cedillos Flores testified he was

beaten by the police on one occasion while he lived in El Salvador, the

circumstances of that beating do not clearly amount to torture. See Ahmed v.

Keisler, 504 F.3d 1183, 1200-01 (9th Cir. 2007) (explaining that “it is not clear”

that being “taken into custody and beaten on four occasions . . . would rise to the

level of torture”). Nor was the agency required to conclude that Cedillos Flores

would face similar or worse treatment by police if he returned to El Salvador, as

Cedillos Flores also detailed other times he had been arrested without mentioning

beatings or other physical harm.

4 The petition for review is DENIED.