Jose Barrera Huerta v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2020
• Docket: 18-70598
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE BARRERA HUERTA, AKA Joel No. 18-70598 Solorio Moya, Agency No. A205-024-508 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 13, 2020** San Francisco, California

Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,*** District Judge.

Jose Barrera Huerta challenges the Board of Immigration Appeals’ (BIA)

decision denying his requests for withholding of removal and relief under the

* 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 Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.

§ 1252(a)(1). We deny his petition for review.

1. Particularly Serious Crime. We review the BIA’s particularly serious

crime determination for abuse of discretion. Arbid v. Holder, 700 F.3d 379, 383 (9th

Cir. 2012). The Attorney General may not remove a noncitizen to a country if the

Attorney General decides that the noncitizen’s “life or freedom would be threatened

in that country because of the [noncitizen]’s race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).

However, this restriction does not apply if the Attorney General decides that the

noncitizen has been convicted of a “particularly serious crime” and is therefore “a

danger to the community of the United States.” Id. § 1231(b)(3)(B)(ii).

There exists a strong presumption that a drug trafficking offense constitutes a

particularly serious crime. Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir.

2007); Matter of Y-L-, 23 I. & N. Dec. 270, 275–76 (Att’y Gen. 2002). In a “very

rare case,” a noncitizen can overcome the presumption by showing, at a minimum,

(1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the [noncitizen] in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence . . . ; (5) the absence of any organized crime or terrorist organization involvement . . . ; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles.

Y-L-, 23 I. & N. Dec. at 276–77.

2 While Barrera Huerta does not dispute the presumption applies, he contends

the Immigration Judge (IJ) failed to meaningfully review whether he rebutted the

presumption. The IJ determined that Barrera Huerta had not established the six

factors set out in Y-L- to rebut the presumption and disbelieved his testimony that he

did not intend to sell the drugs in the 2013 and 2015 convictions. Barrera Huerta

pleaded no contest to these charges, which both included an element of possession

for sale. See Cal. Health & Safety Code §§ 11351, 11378. Barrera Huerta’s only

evidence in this petition is his testimony that he possessed the drugs for personal use

without the intent to sell. A collateral attack on the convictions will not suffice to

rebut the presumption of a particularly serious crime. See Ramirez-Villalpando v.

Holder, 645 F.3d 1035, 1041 (9th Cir. 2011) (“A petitioner may not collaterally

attack his state court conviction on a petition for review of a BIA decision.”). We

find no abuse of discretion in concluding that Barrera Huerta’s drug trafficking

offenses constituted “particularly serious crime[s].” 8 U.S.C. § 1231(b)(3)(B)(ii).

2. Convention Against Torture Claim. The IJ acknowledged that Barrera

Huerta presented evidence of past torture from the Knights Templar cartel (or its

predecessor). However, Barrera Huerta’s evidence also showed that the Knights

Templar was a regional cartel. The IJ concluded that Barrera Huerta had not shown

that he would face torture if he relocated elsewhere in Mexico. Contrary to Barrera

Huerta’s contention that the IJ failed to evaluate his CAT claim, the IJ considered

3 the appropriate standard and the evidence Barrera Huerta presented. Barrera Huerta

contends that the Knights Templar is a de facto government actor that would have

the opportunity to torture him if he is returned to Mexico. But the present record

does not compel the conclusion that Barrera Huerta is more likely than not to be

tortured upon his return to Mexico. See Nasrallah v. Barr, 140 S. Ct. 1683, 1692

(2020) (factual challenges to CAT claims are reviewed under the highly deferential

substantial evidence standard of review).

Petition for review is DENIED.