Rafael Trujillo Parra v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 2021
• Docket: 20-71578
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAFAEL TRUJILLO PARRA, No. 20-71578

Petitioner, Agency No. A209-877-416

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

Respondent.

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

Argued and Submitted July 28, 2021 Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and ROBRENO,** District Judge.

Rafael Trujillo Parra, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) denial of his applications for (1)

withholding of removal, and (2) deferral of removal under the Convention Against

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Torture (“CAT”). Because “the BIA cite[d] [Matter of] Burbano[, 20 I. & N. Dec.

872, 874 (BIA 1994)] and also provide[d] its own review of the evidence and law,

we review both the [Immigration Judge’s (“IJ”)] and the BIA’s decisions.” Ali v.

Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). As the parties are familiar with the

facts, we do not recount them here. We deny the petition.1

1. Particularly Serious Crime

Parra argues that the BIA and IJ erred in concluding that his assault

conviction was for a “particularly serious crime,” rendering him ineligible for

withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R.

§ 1208.16(d)(2). We review that decision only for abuse of discretion as to

whether the agency applied the correct legal standard and relied on the appropriate

factors and evidence. Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020). We do not

re-weigh the evidence leading to the agency’s “ultimate determination.” Id.

(citation omitted).

In conducting the particularly serious crime analysis, the IJ considers three

factors: “(1) the nature of the conviction, (2) the type of sentence imposed, and (3)

the circumstances and underlying facts of the conviction.” Id. (internal quotation

1 There is a pending motion and supplemental motion to stay Parra’s removal. Dkt. Nos. 1, 6. At Parra’s request during oral argument, we leave the temporary stay of removal intact until the mandate in this case issues. Once the mandate issues, we deny both motions as moot.

2 marks and citation omitted). A noncitizen convicted of a particularly serious crime

is now presumed to be a “danger to the community.” See Flores-Vega v. Barr, 932

F.3d 878, 884 (9th Cir. 2019) (citation omitted). The IJ also considers evidence of

the noncitizen’s mental health during the commission of the crime. See Gomez-

Sanchez v. Sessions, 892 F.3d 985, 995-97 (9th Cir. 2018).

Parra argues that the IJ abused her discretion by evaluating the wrong

factors, incorrectly focusing on Parra’s mental illness and his “likelihood of future

misconduct” rather than the nature of his crime. The record, however, shows

otherwise. In a detailed order, the IJ extensively discussed the severity of Parra’s

crime and the factors underlying his assault conviction, noting that the attack was

“unprovoked,” involved repeated punches and kicks “against a random victim,”

and “produced great bodily injury.” The IJ also properly considered how Parra’s

mental health impacted the severity of his crime. Thus, we decline to disturb the

agency’s conclusion that Parra’s conviction was for a “particularly serious crime.”

2. CAT Deferral

Parra next challenges the denial of his CAT deferral claim. The IJ rejected

Parra’s claim after determining he did not show it was “more likely than not” that

he would be tortured if removed to Mexico. 8 C.F.R. § 1208.17(a). Specifically,

the IJ concluded that Parra’s fear of torture was predicated on a specific sequence

of events, and though Parra demonstrated the likelihood he would be taken into

3 police custody if removed to Mexico, he did not demonstrate the likelihood he

would be tortured by police officers, sent to a mental health institution, or harmed

by mental health workers with the requisite intent to torture him. We review the

agency’s conclusion that Parra failed to meet his burden for substantial evidence.

Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir. 2011). “Substantial evidence

review means that we may only reverse the agency’s determination where ‘the

evidence compels a contrary conclusion.’” Parada v. Sessions, 902 F.3d 901, 908-

09 (9th Cir. 2018) (citation omitted).

The evidence does not compel the conclusion that Parra demonstrated his

likelihood of torture. Even if Parra can show it is more likely than not that police

officers would transfer him to a Mexican mental institution, he cannot show that

the mental health workers would possess the requisite intent to harm him. In

Villegas v. Mukasey, we held that generally poor conditions in Mexican mental

health institutions were insufficient to show a “specific intent to harm the mentally

disabled.” 523 F.3d 984, 985 (9th Cir. 2008). Though we recognized the patients

were living in “terrible squalor,” we concluded that “the conditions do not amount

to torture within the meaning of the CAT.” Id. at 989; see also Acevedo Granados

v. Garland, 992 F.3d 755, 764-65 (9th Cir. 2021). Because we discern no

meaningful distinction between Parra’s evidence of torture and the evidence we

deemed insufficient in Villegas, 523 F.3d at 986, we conclude that Parra cannot

4 meet his burden to show likelihood of torture under the CAT.

Finally, Parra argues for the first time in a Federal Rule of Appellate

Procedure 28(j) letter that the agency erroneously failed to aggregate his combined

risk of torture from either the police or mental health institutions, citing Quijada-

Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015). See also Guerra v. Barr, 974

F.3d 909, 916 (9th Cir. 2020). Parra contends that the agency treated both sources

of risk as “distinct, siloed CAT claims.” The Government responds that Parra

waived this issue by failing to raise it in his opening brief, and we agree. We “will

not ordinarily consider matters on appeal that are not specifically and distinctly

argued in appellant’s opening brief.” Alcaraz v. INS, 384 F.3d 1150, 1161 (9th

Cir. 2004) (citation omitted). Though we have recognized an exception to this rule

where failure to consider an issue would “result in manifest injustice,” we conclude

that in this case, failing to reach the aggregation issue does not meet that standard.

Id. (citation omitted). Thus, Parra waived the aggregation issue by failing to raise

it properly in his opening brief.

For the above reasons, the petition for review is DENIED.