Ricardo Gonzalez Camacena v. Merrick Garland

Opinion

FILED NOT FOR PUBLICATION APR 15 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICARDO ROBERTO GONZALEZ No. 18-72250 CAMACENA, Agency No. A090-780-522 Petitioner,

v. MEMORANDUM*

MERRICK GARLAND, Attorney General,

Respondent.

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

Submitted March 16, 2021** San Francisco, California

Before: BERZON, MURGUIA, and CHRISTEN, Circuit Judges.

Ricardo Gonzalez Camacena, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ decision dismissing his appeal from

an Immigration Judge’s (IJ) order denying withholding of removal pursuant to 8

* 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). U.S.C. § 1231(b)(3) and withholding and deferral of removal pursuant to the

Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.

§ 1252(a), and we dismiss the petition in part, and deny it part.1

1. The IJ determined as a matter of discretion that Camacena’s

conviction for conspiracy to commit alien smuggling in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I) was a particularly serious crime, id. § 1231(b)(3)(B). An

alien is ineligible for statutory withholding of removal if “the alien, having been

convicted by a final judgment of a particularly serious crime is a danger to the

community of the United States.” Id. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2)

(ineligibility for withholding of removal pursuant to CAT).

But the IJ also determined that Camacena’s conviction was an aggravated

felony and Camacena does not challenge that ruling. Pursuant to 8 §

1252(a)(2)(C), “no court shall have jurisdiction to review any final order of

removal against an alien who is removable by reason of having committed [among

other crimes, an aggravated felony].” There are two exceptions to the jurisdiction-

stripping provision of § 1252(a)(2)(C). First, pursuant to 8 U.S.C.

§ 1252(a)(2)(D), we retain jurisdiction to review questions of law and

1 The parties are familiar with the facts, so we recite only those necessary to decide the petition. 2 constitutional challenges. Second, we have jurisdiction if the immigration court

denied relief on the merits of the claim to withholding. See Lemus-Galvan v.

Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008), overruled on other grounds,

Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015). The second exception is not

implicated by the BIA’s ruling and Camacena does not contend the IJ’s

determination implicates “a constitutional or legal question,” Pechenkov v. Holder,

705 F.3d 444, 448–49 (9th Cir. 2012); he merely invites us to “reweigh evidence to

determine if the crime was indeed particularly serious,” which we lack jurisdiction

to do. Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir. 2013) (citation

omitted).

2. Camacena may still seek deferral of removal under CAT. 8 C.F.R.

§ 1208.16(d)(2). The BIA concluded Camacena failed to show it was more likely

than not that he would be tortured by or with the acquiescence of a public official.

See Arrey v. Barr, 916 F.3d 1149, 1160 (9th Cir. 2019). The record does not

compel a contrary conclusion. Camacena testified that he was attacked by inmates

while in pretrial detention after his 2006 arrest for alien smuggling. Camacena

claimed that the leader of the alien-smuggling ring sent the attackers to warn him

not to implicate others in the ring, and as a result of the attack he appeared at one

of his hearings in a wheelchair. Camacena also claimed that he fears the ringleader

3 will seek revenge if Camacena is removed. But Camacena pleaded guilty, did not

implicate anyone else, and admitted he has received no threats of any kind related

to his involvement in the smuggling ring since he was attacked in jail and

subsequently entered a guilty plea. Camacena’s wife, who was also part of the

smuggling ring, has resided in Mexico since being deported in 2007. Camacena

has not shown that his wife has been threatened in connection with the smuggling

ring. In all, the record does not compel the conclusion that Camacena will more

likely than not be tortured if removed.

Camacena also fails to show that the record compels the conclusion that a

public official would acquiesce to his torture. Camacena asserts that the head of

the smuggling ring remains in Mexico, and that the ringleader was accompanied by

a police officer in Mexico and known to pay off the Mexican police. Even

assuming the truth of these allegations, they do not meet Camacena’s burden to

show that he will more likely than not be tortured if he is removed, and that the

Mexican police would have “awareness of such activity and thereafter breach

[their] responsibility to intervene to prevent such activity.” Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (quoting 8 C.F.R. § 208.18(a)(7)).

PETITION FOR REVIEW DISMISSED IN PART, AND DENIED IN PART.