Sebastian Mejia-Leon v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2021
• Docket: 18-73104
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SEBASTIAN MEJIA-LEON, AKA Jose No. 18-73104 Antonio Mejia, Agency No. A044-347-845 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Sebastian Mejia-Leon, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his applications for cancellation of removal

and asylum, withholding of removal, and relief 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 panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. Whether a

crime is as an aggravated felony is a question of law subject to de novo review.

Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020). We review for

substantial evidence the agency’s factual findings. Garcia-Milian v. Holder, 755

F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the petition

for review.

Mejia-Leon’s conviction for cultivating marijuana under Cal. Health &

Safety Code § 11358 (“CHSC”) is categorically an aggravated felony drug

trafficking offense. See United States v. Reveles-Espinoza, 522 F.3d 1044, 1047-

48 (9th Cir. 2008). Accordingly, the agency did not err in concluding that Mejia-

Leon was not eligible for cancellation of removal, see 8 U.S.C § 1229b(a)(3), and

asylum, see 8 U.S.C. §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i).

Because Mejia-Leon was found removable due to his conviction for an

aggravated felony crime, our jurisdiction to review the agency’s particularly

serious crime determination is limited to 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). We reject Mejia-Leon’s contention that the agency misapplied

the law or otherwise erred in its particularly serious crime determination, where the

agency considered the appropriate factors in a case-specific inquiry. See Flores-

Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (“[W]e lack jurisdiction over the

2 18-73104 BIA’s ultimate determination that [petitioner] committed a particularly serious

crime… But we retain jurisdiction to determine whether the BIA applied the

correct legal standard.” (internal citation and quotation marks omitted)); Anaya-

Ortiz v. Holder, 594 F.3d 673, 679-80 (9th Cir. 2010) (concluding that the agency

engaged in the appropriate particularly serious crime analysis). To the extent

Mejia-Leon challenges the agency’s weighing of factors, we lack jurisdiction to

review it. See Pechenkov, 705 F.3d at 448-49. Thus, Mejia-Leon’s withholding of

removal claim fails. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).

Mejia-Leon’s contentions as to the validity of his conviction under CHSC

§ 11358 are not properly before this court. See Ramirez-Villalpando v. Holder,

645 F.3d 1035, 1041 (9th Cir. 2011) (a collateral attack on a criminal conviction is

not properly considered in a petition for review of a BIA decision).

Substantial evidence supports the BIA’s denial of deferral of removal under

CAT because Mejia-Leon failed to show it is more likely than not he would be

tortured by or with the consent or acquiescence of the government if returned to

Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We reject as

unsupported by the record Mejia-Leon’s contentions that the agency misapplied

the law or otherwise erred in its analysis of his deferral of removal under CAT

claim.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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