Torres-Torres v. Barr, 111920 FED9, 18-71349

Docket Nº:18-71349
Party Name:JUAN ALBERTO TORRES-TORRES, AKA Juan Alberto Torres, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
Judge Panel:Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.
Case Date:November 19, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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JUAN ALBERTO TORRES-TORRES, AKA Juan Alberto Torres, Petitioner,

v.

WILLIAM P. BARR, Attorney General, Respondent.

No. 18-71349

United States Court of Appeals, Ninth Circuit

November 19, 2020

NOT FOR PUBLICATION

Submitted November 17, 2020 [**] San Francisco, California

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A041-765-869

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

MEMORANDUM [*]

Juan Alberto Torres Torres, a legal permanent resident and a citizen of Mexico, petitions for review of a Board of Immigration Appeals ("BIA") decision affirming an immigration judge's ("IJ") denial of withholding of removal and denial of relief under the Convention Against Torture ("CAT"). We have jurisdiction under 28 U.S.C. § 1252.

1. Torres Torres challenges the IJ's finding that his conviction for conspiracy to distribute cocaine in violation of federal law was a "particularly serious" crime. "We have jurisdiction to review for abuse of discretion the BIA's conclusion that an offense constitutes a particularly serious crime. Our review is limited to ensuring that the agency relied on the appropriate factors and proper evidence . . . . We may not reweigh the evidence and reach our own determination about the crime's seriousness." Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (citations and quotation omitted).

The Attorney General has created "an extraordinarily strong presumption that drug trafficking offenses are particularly serious crimes." Miguel-Miguel v. Gonzales, 500 F.3d 941, 947 (9th Cir. 2007). Under In Re Y-L-, 23 I. & N. Dec. 270, 274 (2002) overruled on other grounds by Zheng v. Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003), "aggravated felonies involving unlawful trafficking in controlled substances" are presumptively particularly serious crimes, and "[o]nly under the most extenuating circumstances that are both extraordinary and compelling would departure from this interpretation be warranted or permissible."

To overcome the In re Y-L- presumption, a petitioner must demonstrate at a minimum: (1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement . . . in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense;(5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles.

In Re Y-L-, 23 I. & N. Dec. at 276-77. The IJ's finding that Torres Torres was only able to demonstrate that there was no violence associated with his crime was supported by substantial evidence. Thus, the BIA did not abuse its discretion in holding that Torres Torres failed to rebut the presumption.1

2. We have jurisdiction to review a denial of CAT relief where, as here, the petitioner brings a factual challenge. Nasrallah v. Barr, 140 S.Ct. 1683, 1694 (2020). We "review the factual findings behind the...

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