Vicente Valle v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2022
• Docket: 20-72769
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICENTE VALLE, No. 20-72769

Petitioner, Agency No. A029-138-276

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

Respondent.

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

Submitted February 16, 2022** Pasadena, California

Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,*** District Judge.

Vicente Valle, a native and citizen of El Salvador, petitions for review of the

Board of Immigration Appeals’ determination that his 1994 drug-trafficking

* 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 Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. offense is a particularly serious crime for purposes of 8 U.S.C. § 1231(b)(3)(B)(ii).

We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

In determining whether a crime is particularly serious, the Board looks “to

such factors as the nature of the conviction, the circumstances and underlying facts

of the conviction, the type of sentence imposed, and, most importantly, whether the

type and circumstances of the crime indicate that the alien will be a danger to the

community.” Matter of Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982). In

making that determination, the Board may not engage in additional fact finding,

but it may apply the Frentescu factors de novo to the underlying facts found by the

immigration judge. See Perez-Palafox v. Holder, 744 F.3d 1138, 1145 (9th Cir.

2014).

We review the Board’s particularly serious crime determination for abuse of

discretion. Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019). While we lack

jurisdiction over the Board’s ultimate determination, we retain jurisdiction to

“review whether ‘the agency relied on the appropriate factors and proper evidence

to reach [its] conclusion.’” Id. (alteration in original) (quoting Avendano-

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

The Board did not abuse its discretion in concluding that Valle’s drug-

trafficking offense is a particularly serious crime. First, the immigration judge

found sufficient facts to support the Board’s determination. The Board relied on

2 the immigration judge’s factual findings and analysis of why Valle was not merely

a “peripheral figure” in the 1994 trafficking offense, the type and length of Valle’s

sentence, pre-1994 Board decisions discussing “the dangers associated with” drug

trafficking, and the fact that Valle offered no evidence to dispute the particularly

serious crime determination. In doing so, the Board applied the “appropriate

factors”—the Frentescu factors—to the “proper evidence”—the immigration

judge’s factual findings. See Flores-Vega, 932 F.3d at 884.

Second, Valle has not identified relevant evidence that the Board failed to

consider. Valle argues that his conviction under California Health & Safety Code

§ 11359 did not involve trafficking in a controlled substance, but his claim is

foreclosed by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014), in which we

held that a conviction under that statute is “categorically an aggravated felony,

namely ‘illicit trafficking in a controlled substance.’” Id. at 1037 (quoting 8 U.S.C.

§ 1101(a)(43)(B)). Additionally, Valle points to a California state court’s

expungement of his conviction, the later legalization of certain uses of marijuana in

California, the specific facts of his crime and sentence, and his behavior since his

conviction. But those arguments go to the weight the Board gave to his conviction,

and we lack jurisdiction to “reweigh the evidence and reach our own determination

about the crime’s seriousness.” Avendano-Hernandez, 800 F.3d at 1077.

PETITION DENIED.