Summary
denying CAT claim where petitioner's evidence of torture was too speculative
Summary of this case from Lagos-Lagos v. BarrOpinion
No. 06-70634.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed August 12, 2010.
Christopher John Stender, Esquire, Stender Lappin, San Diego, CA, for Petitioner.
Susan Houser, OIL, U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A038-085-623.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The BIA did not err in finding that Escobar's robbery conviction under California Penal Code § 212.5(c) is a "particularly serious crime" rendering him ineligible for withholding of removal. 8 U.S.C. § 1231(b)(3)(B)(ii). Current dangerousness is not a factor that the BIA is required to consider in making its "particularly serious crime" determination, see Anaya-Ortiz v. Holder, 594 F.3d 673, 679 (9th Cir. 2010); 8 C.F.R. § 1208.16(d)(2), and the BIA did not adopt or rely on the Immigration Judge's comments regarding the potential injury to the victim. So, even assuming those comments were inappropriate, they are irrelevant. Escobar's claim that the IJ denied him the opportunity to present evidence and argument as to whether his crime was "particularly serious" also fails. The IJ gave Escobar ample opportunity to present evidence and argument, and Escobar declined to do so.
Escobar's argument that his nolo contendere plea cannot support the BIA's removability determination is waived because it was not included in his opening brief. See United States v. Traynor, 990 F.2d 1153, 1159 (9th Cir. 1993). Even were we to assess the merits of this claim, we would affirm. For immigration purposes, convictions matter, not actual guilt, see 8 U.S.C. § 1231(b)(3)(B), and a no contest plea resulting in some form of punishment is considered a conviction, see 8 U.S.C. § 1101(a)(48)(A).
Escobar's speculative evidence didn't show it was more likely than not that he would be tortured in Honduras because of his gang affiliation, so there was "substantial evidence" for the BIA's denial of CAT protection. Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010) ("We review for substantial evidence the BIA's determination that [petitioner] is not eligible for protection under CAT.").