Rodriguez Picazo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2023
• Docket: 22-1964
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 19 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR RODRIGUEZ PICAZO, No. 22-1964 Agency No. Petitioner, A073-889-287 v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 15, 2023** Pasadena, California

Before: SCHROEDER, FRIEDLAND, and MILLER, Circuit Judges

Oscar Rodriguez Picazo, a native and citizen of Mexico, petitions for review

of a decision of the Board of Immigration Appeals affirming an immigration

judge’s denial of his applications for withholding of removal and protection under

* 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 Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition.

We review the Board’s legal determinations de novo. Vitug v. Holder, 723

F.3d 1056, 1062 (9th Cir. 2013). We review factual findings for substantial

evidence. See id.

1. Picazo argues that his conviction under California Health & Safety Code

section 11378, which criminalizes possessing a controlled substance for sale, was

not a conviction for an aggravated felony. Before the immigration judge and

through counsel, however, Picazo conceded that he was convicted under that

section for possessing methamphetamine for sale. He further conceded that the

conviction was one for committing an aggravated felony and that he was therefore

removable. See 8 U.S.C. § 1227(a)(2)(A)(iii).

Although Picazo now takes a different view, “[w]e have held that

concessions in removal proceedings are binding except in ‘egregious

circumstances.’” Menendez v. Whitaker, 908 F.3d 467, 474 (9th Cir. 2018)

(quoting Santiago-Rodriguez v. Holder, 657 F.3d 820, 831 (9th Cir. 2011)). In his

briefing before this court, Picazo makes a passing reference to ineffective

assistance of counsel. But Picazo did not argue ineffectiveness before the Board,

and the Government has preserved its argument that Picazo failed to exhaust the

ineffectiveness argument. See Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1116

2 22-1964 (2023). We therefore do not consider the argument now. See Umana-Escobar v.

Garland, 69 F.4th 544, 550 (9th Cir. 2023); 8 U.S.C. § 1252(d)(1).

Picazo would also be relieved of the concession that he committed an

aggravated felony if he “offer[ed] evidence proving that ‘the factual admissions

and concession of [removability] were untrue or incorrect.’” Santiago-Rodriguez,

657 F.3d at 832 (quoting Matter of Velasquez, 19 I. & N. Dec. 377, 383 (B.I.A.

1986)). But Picazo does not contend that the Board ultimately got it wrong in

concluding that he committed an aggravated felony. See United States v. Verduzco-

Rangel, 884 F.3d 918, 923 (9th Cir. 2018) (holding that a conviction under section

11378 is a “drug trafficking aggravated felony” when methamphetamine is the

substance involved). Picazo mainly argues that the Board was barred from

reaching the conclusion it did without considering judicially noticeable documents

from the record of conviction. That argument fails to show that his concessions

before the immigration judge were incorrect or untrue.

2. Picazo also argues that the Board erred in concluding that his conviction

under California Health & Safety Code section 11378 for possessing

methamphetamine for sale was a “particularly serious crime,” which made him

ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). We review

the Board’s determination solely for whether “the agency relied on the appropriate

factors and proper evidence to reach [its] conclusion.” Flores-Vega v. Barr, 932

3 22-1964 F.3d 878, 884 (9th Cir. 2019) (alteration in original) (quoting Avendano-

Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)).

The Board conducted a proper analysis. The Board relied on Matter of Y-L-,

23 I. & N. Dec. 270 (A.G. 2002), under which a drug trafficking offense is

presumptively particularly serious unless the alien can establish “all of” six

mitigating circumstances. Id. at 276–77 (emphasis in original). The Matter of Y-L-

test represents a lawful exercise of the agency’s discretion. Miguel-Miguel v.

Gonzales, 500 F.3d 941, 948–49 (9th Cir. 2007). And the Board appropriately

applied the test. For instance, Picazo argued that his involvement in any drug

tracking offense was “peripheral.” But, as the Board observed, Picazo did not

support that claim with record evidence, and Picazo indeed testified that he had

possessed methamphetamine with the purpose of selling.

3. Finally, Picazo challenges the agency’s denial of his application for CAT

relief. To be entitled to such relief, Picazo must “establish that ‘it is more likely

than not that he . . . would be tortured if removed to the proposed country of

removal.’” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R.

§ 208.16(c)(2)).

Picazo offers evidence of gang violence in Mexico, but “generalized

evidence of violence and crime in Mexico” does not suffice to establish eligibility

under the CAT. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per

4 22-1964 curiam). Although gangs have killed relatives of Picazo in Mexico, Picazo has not

himself faced threats when visiting the country, and he also testified that his

cousins were killed as part of “random” violence. A reasonable adjudicator would

not be compelled to conclude that Picazo himself is more likely than not to face

torture in Mexico.

The temporary stay of removal will remain in place until issuance of the

mandate, and the motion to stay removal (Dkt. No. 2) is otherwise denied.

PETITION DENIED.

5 22-1964