Joao Patrao v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2021
• Docket: 18-71896
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOAO PATRAO, No. 18-71896

Petitioner, Agency No. A035-290-110

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

Respondent.

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

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Joao Patrao, a native and citizen of Portugal, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision finding him removable and denying his

applications for cancellation of removal, asylum, withholding of removal, 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). relief under the Convention Against Torture (“CAT”). We have jurisdiction under

8 U.S.C. § 1252. We review de novo the agency’s determination that a crime is as

an aggravated felony. Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir.

2020). We review for abuse of discretion the agency’s particularly serious crime

determination. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir.

2015). We review for substantial evidence the agency’s factual findings. Tamang

v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). We review de novo due process

claims in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir.

2014). We deny the petition for review.

In his opening brief, Patrao does not raise any challenge to the BIA’s

determination as to his removability. See Lopez-Vasquez v. Holder, 706 F.3d

1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a

party’s opening brief are waived).

The agency did not err in concluding that Patrao’s crime of conviction,

California Penal Code (“CPC”) § 245(a)(4), is categorically a crime of violence

and, thus, an aggravated felony that bars cancellation of removal and asylum. See

8 U.S.C. § 1229b(a)(3); 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i); see also United States

v. Vasquez-Gonzalez, 901 F.3d 1060, 1065-68 (9th Cir. 2018) (petitioner’s offense

under CPC § 245(a)(1) was a crime of violence and thus an aggravated felony);

United States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009) (“If the conviction

2 18-71896 is based on ‘force likely to produce great bodily injury,’ such force . . . represents

‘actual force’ that is violent in nature.”). Patrao’s contention that agency failed to

consider evidence or otherwise erred in its analysis fails as unsupported by the

record. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“[BIA] does

not have to write an exegesis on every contention” (citation and internal quotation

marks omitted)); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)

(concluding petitioner did not overcome the presumption that the BIA reviewed the

record). In light of this disposition, we need not reach Patrao’s challenges to the

agency’s determination that his conviction in violation of California Health and

Safety Code (“CHSC”) § 11379(a) was an aggravated felony that rendered him

ineligible for cancellation of removal and asylum. See Simeonov v. Ashcroft, 371

F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues

unnecessary to the results they reach).

The agency did not abuse its discretion in determining Patrao’s conviction

under CPC § 245(a)(4) was a particularly serious crime barring him from

eligibility for withholding of removal, where it applied the appropriate factors to

weigh the seriousness of the crime in a case-specific inquiry. See Avendano-

Hernandez, 800 F.3d at 1077 (the court’s review “is limited to ensuring that the

agency relied on the appropriate factors and proper evidence to reach [its]

conclusion.”); see also Bare v. Barr, 975 F.3d 952, 964 (9th Cir. 2020) (all reliable

3 18-71896 information may be considered in making a particularly serious crime

determination). We do not reach Patrao’s contentions as to whether his conviction

in violation of CHSC § 11379(a) constituted a particularly serious crime for

purposes of withholding of removal. See Najmabadi, 597 F.3d at 986 (the court’s

review is limited to the actual grounds relied upon by the BIA).

Substantial evidence supports the agency’s denial of deferral of removal

under CAT because Patrao failed to show it is more likely than not he would be

tortured by or with the consent or acquiescence of the government if returned to

Portugal. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

Patrao’s contentions that the IJ and the BIA violated his right to due process

fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to

prevail on a due process claim).

To the extent Patrao challenges the agency’s jurisdiction over his

proceedings under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201

L.Ed.2d 433 (2018), his contention is foreclosed by Aguilar Fermin v. Barr, 958

F.3d 887, 889, 895 (9th Cir. 2020) (“the lack of time, date, and place in the NTA

sent to [petitioner] did not deprive the immigration court of jurisdiction over her

case”).

PETITION FOR REVIEW DENIED.

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