Jillian Genuino v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 16-72379
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JILLIAN AQUINO GENUINO, No. 16-72379

Petitioner, Agency No. A046-888-226

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Jillian Aquino Genuino, a native and citizen of the Philippines, petitions pro

se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s decision denying his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We dismiss in part and

* 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). grant in part the petition for review.

Because Genuino was found removable due to his offense relating to a

controlled substance, our jurisdiction to review the agency’s denial of withholding

of removal on the basis of that same conviction is limited to constitutional claims

and questions of law. See 8 U.S.C. § 1252(a)(2)(C) (court does not have

jurisdiction to review a final order of removal against an alien who is removable

for having committed certain criminal offenses); Pechenkov v. Holder, 705 F.3d

444, 448 (9th Cir. 2012) (the jurisdictional bar at § 1252(a)(2)(C) is subject to two

exceptions: 1) applying the exception at § 1252(a)(2)(D) relating to questions of

law or constitutional claims, and 2) when the agency denies relief on the merits,

rather than in reliance on the conviction).

Genuino bases his contention that the BIA erred on a misreading of the

BIA’s decision. The BIA did not state it could not consider evidence beyond the

record of conviction in making its particularly serious crime analysis, but correctly

relied on Matter of Roberts, 20 I. & N. Dec. 294, 301 (BIA 1991), to state that it

could not use Genuino’s testimony to determine his guilt or innocence. If the BIA

were to credit Genuino’s testimony that he possessed methamphetamine only for

personal use and not for sale, it would effectively determine that he was not guilty

of possession for sale of methamphetamine, which is the crime to which Genuino

pleaded guilty.

2 16-72379 Genuino moves the court to remand based on two reports describing a surge

of violence against those suspected of dealing or using drugs in the Philippines

since President Duterte took office in June 2016. We take judicial notice of these

reports, grant Genuino’s motion, and remand for the agency to consider Genuino’s

claim for CAT relief in light of the significant changes in the Philippines. See

Gafoor v. INS, 231 F.3d 645, 656 (9th Cir. 2000) (remanding to the BIA after

taking judicial notice of “dramatic foreign developments”).

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DISMISSED in part; GRANTED in part;

REMANDED.

3 16-72379