Jose Landa v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2019
• Docket: 17-73024
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LANDA, AKA Jose Iturbide Landa, No. 17-73024

Petitioner, Agency No. A090-199-473

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

Respondent.

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

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Jose Landa, a native and citizen of Mexico, petitions for review of the Board

of Immigration Appeals’ order dismissing his appeal from an immigration judge’s

(“IJ”) decision denying his application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed

by 8 U.S.C. § 1252. We review de novo questions of law and constitutional claims.

* 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). Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We review for

substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d

1066, 1070 (9th Cir. 2008). We dismiss in part and deny in part the petition for

review.

Because Landa was found removable due to his conviction for a crime

involving moral turpitude, our jurisdiction to review the agency’s particularly

serious crime determination is limited to colorable constitutional claims and

questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Pechenkov v. Holder, 705 F.3d

444, 448-49 (9th Cir. 2012).

The agency did not err or violate due process in relying on the police report

relating to Landa’s conviction for assault with attempt to commit rape under

California Penal Code § 220, where Landa failed to establish that it was inaccurate

or unreliable. See Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010) (all

reliable information may be considered in making a particularly serious crime

determination); Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (the opponent of

a government record bears the burden of showing it is unreliable) (internal citation

omitted)); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (an alien must show

error and substantial prejudice to prevail on a due process claim). We reject

Landa’s contention that he was entitled to cross-examine the officer who prepared

the police report, where he did not challenge the contents of the report before the

2 17-73024 IJ. See 8 U.S.C. § 1229a(b)(4)(B); Espinoza, 45 F.3d at 311 (aliens in deportation

proceedings may not assert a cross-examination right to prevent the government

from establishing uncontested facts). To the extent Landa contends the agency

ignored evidence or argument, the record does not support this contention.

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010). We lack further

jurisdiction over Landa’s challenge to the agency’s weighing of factors in its

particularly serious crime determination. See Avendando-Hernandez v. Lynch, 800

F.3d 1072, 1077 (9th Cir. 2015) (court may not reweigh the evidence and reach its

own determination about the crime’s seriousness); Pechenkov, 705 F.3d at 448-49.

Thus, his asylum and withholding of removal claims fail. See 8 U.S.C.

§§ 1158(b)(2)(A)(ii); 1231(b)(3)(B); 8 C.F.R. § 1208.16(d)(2).

Substantial evidence supports the agency’s denial of CAT relief, where

Landa failed to show that it is more likely than not that he would be tortured by or

with the acquiescence of a government official in Mexico. See 8 C.F.R.

§ 1208.18(a)(1); Silaya, 524 F.3d at 1073.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

3 17-73024