Silia Ramirez-Garcia v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2018
• Docket: 15-71480
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 16 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SILIA BETZABE RAMIREZ- ) Nos. 15-71480 GARCIA, ) 15-71809 ) Petitioner, ) Agency No. A097-559-607 ) v. ) MEMORANDUM* ) JEFFERSON B. SESSIONS III, ) Attorney General, ) ) Respondent. ) )

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

Submitted March 13, 2018** San Francisco, California

Before: FERNANDEZ and McKEOWN, Circuit Judges, and BENITEZ,*** District Judge.

Silia Ramirez-Garcia, a native and citizen of Mexico, petitions for review of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. the Board of Immigration Appeals’ (BIA) dismissal of her appeal from the

Immigration Judge’s (IJ) denial of her motion for termination of proceedings,1 her

application for withholding of removal,2 and her application for Convention

Against Torture3 (CAT) relief.4 She also petitions for review of the BIA’s

dismissal of her appeal from the IJ’s denial of her motion for reconsideration.5 We

deny the petitions in part and dismiss for lack of jurisdiction in part.

(1) Ramirez claims that proceedings should have been terminated on the

basis that she was entitled to United States citizenship because her father had

become a citizen. However, in her appeal to the BIA she failed to develop the

issue in her brief, as a result of which it deemed her appeal abandoned in that

respect. The record supports that determination. See Abebe v. Mukasey, 554 F.3d

1203, 1208 (9th Cir. 2009) (en banc) (per curiam); Singh v. Ashcroft, 361 F.3d

1152, 1157 (9th Cir. 2004). Thus, we lack jurisdiction to consider that claim. See

1 8 C.F.R. § 1239.2(f). 2 8 U.S.C. § 1231(b)(3). 3 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18. 4 Appeal No. 15-71480. Ramirez does not seek review of the denial of her application for asylum. 5 8 C.F.R. § 1003.23(b)(1), (2); see also 8 U.S.C. § 1229a(c)(6).

2 Abebe, 554 F.3d at 1208.

(2) A determination by the BIA that an alien is not eligible for

withholding of removal or CAT relief “must be upheld if ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” INS v.

Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117 L. Ed. 2d 38 (1992);

see also Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th Cir. 2010). Its

determination “can be reversed only if the evidence presented . . . was such that a

reasonable factfinder would have to” come to the opposite conclusion. Elias-

Zacarias, 502 U.S. at 481, 112 S. Ct. at 815. When an alien seeks to overturn the

BIA’s adverse determination, the alien “must show that the evidence [she]

presented was so compelling that no reasonable factfinder could fail to find” in her

favor. Id. at 483–84, 112 S. Ct. at 817. The same standard applies to credibility

determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004); Alvarez-

Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). However, when a

determination is based upon credibility, “‘a specific, cogent reason for any stated

disbelief’” must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir. 2004);

see also Valderrama v. INS, 260 F.3d 1083, 1085 (9th Cir. 2001) (per curiam).

Here the BIA’s decision regarding Ramirez’s credibility is supported by

3 substantial evidence.6 It properly noted the inconsistency in her stories regarding

her involvement in the drug crime for which she had been convicted.7 It also noted

the amount of drugs involved and her pecuniary purpose. Thus, the BIA did not

err when it determined that she had been convicted of a particularly serious crime,8

especially in light of the “strong presumption that drug trafficking offenses are

particularly serious crimes.”9 Thus, Ramirez was not eligible for withholding of

removal.

Moreover, the evidence in the record does not compel a determination that it

is more likely than not that Ramirez would be tortured in Mexico. Thus, she is not

entitled to CAT relief. See Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir.

2009); Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006); Nahrvani v.

Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005).

6 We note that in some respects the BIA seems to have adopted the reasoning of the IJ and in others it contributed its own reasoning. We have, therefore, reviewed both decisions. See Kumar v. Holder, 728 F.3d 993, 998 (9th Cir. 2013); see also Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014); cf. Malhi v. INS, 336 F.3d 989, 992 (9th Cir. 2003). 7 The fact that some hearsay was relied upon was not fatal; that evidence was reliable and could be considered. See Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006). 8 See 8 U.S.C. § 1231(b)(3)(B)(ii); see also Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th Cir. 2010); In re N–A–M–, 24 I. & N. Dec. 336, 342 (B.I.A. 2007). 9 Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007); see also Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir. 2008);

4 (3) The BIA did not err10 when it determined that the IJ had properly

denied the motion for reconsideration;11 as it indicated, the evidence she pointed to

did not undermine the adverse determinations properly made by the IJ and the BIA

in their original decisions.12

Petition DISMISSED in part, and DENIED in part.

10 See Edu v. Holder, 624 F.3d 1137, 1142 n.4 (9th Cir. 2010); Sembiring v. Gonzales, 499 F.3d 981, 983–85 (9th Cir. 2007); Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002); see also United States v. Hinkson, 585 F.3d 1247, 1262–63 (9th Cir. 2009) (en banc). 11 See 8 C.F.R. § 1003.23(b)(2); see also 8 U.S.C. § 1229a(c)(6). 12 See Najmabadi v. Holder, 597 F.3d 983, 990, 992–93 (9th Cir. 2010).