Mairena v. Barr

• Decision Date: 07 March 2019
• Docket Number: No. 15-72833,15-72833
• Citation: 917 F.3d 1119
• Parties: Danilo Alberto MAIRENA, AKA Danilo Alberto Mairewa, AKA Danilo Alberto Mariena, AKA Danilo Marieno, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

917 F.3d 1119

Danilo Alberto MAIRENA, AKA Danilo Alberto Mairewa, AKA Danilo Alberto Mariena, AKA Danilo Marieno, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 15-72833

United States Court of Appeals, Ninth Circuit.

Filed March 7, 2019

Submitted November 14, 2018^* Pasadena, California

Tania Pham, Law Offices of Tania T. Pham, Woodland Hills, California, for Petitioner.

Benjamin J. Zeitlin, Attorney; Carl McIntyre, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX2-897

Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Carol Bagley Amon,^** District Judge.

PER CURIAM:

Petitioner Danilo Mairena, a native and citizen of Nicaragua, petitions for review of a final order of the Board of Immigration Appeals ("BIA") dismissing his appeal of the Immigration Judge's ("IJ") denial of his applications for withholding of removal, protection under the Convention Against Torture ("CAT"), and related relief. We have jurisdiction under 8 U.S.C. § 1252. We deny his petition.

BACKGROUND

Mairena, a native and citizen of Nicaragua born in 1979, entered the United States on a visitor visa in 1984 and attained lawful permanent resident status in 1988. Mairena's wife, two daughters, and parents reside in the United States, and he has no family left in Nicaragua.

On August 9, 2010, Mairena was convicted of willful infliction of corporal injury upon the mother of his child with a prior conviction, in violation of California Penal Code § 273.5(e)(1).¹ He had been previously convicted of corporal injury to a spouse in 2008. Mairena was sentenced to five years of imprisonment: four years for the offense, plus a one-year enhancement, pursuant to California Penal Code § 12022.5(b)(1),² for using a weapon during the commission of the offense. That same day, Mairena was also convicted of dissuading a witness, in violation of California Penal Code § 136.1(c)(1), for which he was sentenced to three years of imprisonment.

On October 10, 2013, the Department of Homeland Security served Mairena with a Notice to Appear and charged him as removable based on those two felony convictions under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act. See 8 U.S.C. § 1227(a)(2)(A)(iii). On March 20, 2014, the IJ (Walsh, I.J. ) concluded that Mairena was removable as charged.

On May 15, 2014, Mariena applied for asylum, withholding of removal, and CAT protection. In his application, Mairena alleged that he feared that the Sandinistas would kill him because his family was previously persecuted by the Sandinistas and was currently fighting with President Daniel Ortega to recover seized family property.³ On October 15, 2014, Mairena applied for adjustment of status and a waiver of inadmissibility.

On April 1, 2015, the IJ denied all relief. As relevant to this petition, the IJ concluded as follows: (1) Mairena was statutorily ineligible for withholding of removal because he was sentenced to an aggregate term of eight years of imprisonment for his two felony convictions, and therefore convicted of a per se particularly serious crime; and (2) Mariena failed to carry his burden of proving that he would more likely than not be tortured if he returned to Nicaragua, and thus CAT protection was not warranted.

On August 27, 2015, the BIA affirmed the IJ's decision and dismissed Mairena's appeal. As relevant to this petition, the BIA concluded as follows: (1) Mariena was statutorily ineligible for withholding of removal because he was sentenced to an aggregate term of five years of imprisonment for his corporal injury conviction, factoring in the one-year enhancement; and (2) the IJ did not clearly err in determining that Mairena failed to establish that he would more likely than not be tortured if he returned to Nicaragua. The BIA did not rely on Mairena's conviction for dissuading a witness, for which he was sentenced to three years of imprisonment.

On September 14, 2015, Mairena timely petitioned this Court for review.

JURISDICTION AND STANDARD OF REVIEW

We lack jurisdiction to review "any final order of removal against an alien who is removable" because he committed an aggravated felony, see 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii), but "we retain jurisdiction to decide our own jurisdiction and to resolve questions of law," Bolanos v. Holder , 734 F.3d 875, 876 (9th Cir. 2013). "Although we cannot reweigh evidence to determine if the crime was indeed particularly serious, [we] can determine whether the BIA applied the correct legal standard." Konou v. Holder , 750 F.3d 1120, 1127 (9th Cir. 2014) (alteration in original) (quoting Blandino-Medina v. Holder , 712 F.3d 1338, 1343 (9th Cir. 2013) ).

We also have jurisdiction to review the BIA's denial of CAT protection where, as here, "the IJ did not rely on [petitioner's] conviction ... but instead denied relief on the merits." Alphonsus v. Holder , 705 F.3d 1031, 1036–37 (9th Cir. 2013), abrogated on other grounds as recognized in Guerrero v. Whitaker , 908 F.3d 541 (9th Cir. 2018).

Where "the BIA conducts its own review of the evidence and law, rather than adopting the IJ's decision, our review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted." Zumel v. Lynch , 803 F.3d 463, 471 (9th Cir. 2015) (quoting Rodriguez v. Holder , 683 F.3d 1164, 1169 (9th Cir. 2012) ). "[W]e treat the incorporated parts of the IJ's decision as the BIA's." Rivera v. Mukasey , 508 F.3d 1271, 1275 (9th Cir. 2007).

We review legal questions de novo and factual findings, including adverse credibility determinations, for substantial evidence. Vilchez v. Holder , 682 F.3d 1195, 1198–99 (9th Cir. 2012) ; Shrestha v. Holder , 590 F.3d 1034, 1039 (9th Cir. 2010). Under the substantial evidence standard, "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary...." 8 U.S.C. § 1252(b)(4)(B) ; see also Arteaga v. Mukasey , 511 F.3d 940, 944 (9th Cir. 2007) ("Under the substantial evidence standard, the court upholds the BIA's determination unless the evidence in the record compels a contrary conclusion.").

DISCUSSION

I. The Particularly Serious Crime Determination

In general, an alien is entitled to withholding of removal if "the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). But withholding of removal is not available "if the Attorney General decides that ... 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). The provision further explains:

For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.

Id. § 1231(b)(3)(B).

Under the statute, the appropriate analytical lens depends on the length of the sentence imposed. "[A]ggravated felonies with resulting sentences of at least five years are per se particularly serious...." Guerrero , 908 F.3d at 545. By contrast, "aggravated felonies resulting in sentences fewer than five years are not per se particularly serious and still require a case-by-case analysis...." Blandino-Medina , 712 F.3d at 1347 (quoting Afridi v. Gonzales , 442 F.3d 1212, 1220 n.4 (9th Cir. 2006) ).⁴

Mairena does not dispute that his conviction for corporal injury constitutes an aggravated felony.⁵ He argues, however, that the BIA erred by considering the one-year sentencing enhancement in deciding that he was sentenced to an aggregate term of imprisonment of five years—and consequently convicted of a per se particularly serious crime—because the enhancement was not an element of the offense and because the statutory maximum for his offense is four years. Instead, he contends, the BIA should have engaged in a case-by-case analysis.

We have already held that it is appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner is convicted of a particularly serious crime on a case-by-case basis. Konou , 750 F.3d at 1128. As this Court explained, the case-by-case analysis calls for analyzing the "type of sentence imposed," and "[a]n enhanced sentence by its plain language can be considered a type of sentence." Konou , 750 F.3d at 1128. We thus rejected the argument that "the BIA cannot consider a sentencing enhancement when it determines whether a crime is particularly serious." Id.

We now clarify that it is also appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime. See Garcia v. Lynch , 652 F. App'x 591, 593 (9th Cir. 2016) (applying Konou to a per se particularly serious crime determination). Mairena's contention that the BIA could not consider his sentencing enhancement is foreclosed by the plain language of the statute. Section 1231(b)(3)(B) asks whether the individual has been convicted of an aggravated felony for which he "has been sentenced to an aggregate term of imprisonment of at least 5 years." 8 U.S.C. § 1231(b)(3)(B). Thus, the five-year requirement is keyed to the "aggregate term of imprisonment" for the actual sentence imposed—not to the statutory maximum. Cf. United States v. Corona-Sanchez , 291 F.3d 1201, 1208–09 (9th Cir. 2002) (en banc) (in determining whether a conviction categorically qualifies as an aggravated felony...