Jose Ramos-Mendoza v. Jefferson Sessions, III ( 2018 )

FILED
NOT FOR PUBLICATION
SEP 24 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE RAMOS-MENDOZA, No. 15-73840
Petitioner, Agency No. A078-013-842
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 9, 2018
San Francisco, California
Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA,**
District Judge.
Petitioner Ramos-Mendoza seeks relief from a Board of Immigration
Appeals (“BIA”) order dismissing his appeal from an Immigration Judge’s (“IJ”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
decision denying his application for withholding of removal and protection under
the Convention Against Torture (“CAT”). We have jurisdiction over his timely
petition, 8 U.S.C. § 1252, and we deny it.
I
Ramos-Mendoza’s suspended Nevada sentence of twenty-four to sixty
months in prison qualifies as a sentence to a “term of imprisonment of at least 5
years.” 8 U.S.C. § 1231(b)(3)(B)(iv). We disregard the suspension of his sentence
for purposes of making this calculation. 8 U.S.C. § 1101(a)(48)(B).
We need not address the question of whether the appropriate reference is to
state law, see Shaya v. Holder, 586 F.3d 401, 406 (6th Cir. 2009), or simply to look
to the maximum sentence, see Nguyen v. INS, 53 F.3d 310, 311 (10th Cir. 1995),
because the result in this case is the same. Because Nevada law characterizes an
indeterminate sentence as a sentence “for the maximum period imposed by the
court subject to termination by parole after service of the minimum term,” Spillers
v. State, 436 P.2d 18, 23 (Nev. 1968) (emphasis added), overruled in part on other
grounds, Bean v. State, 465 P.2d 133 (Nev. 1970), either approach confirms that
Ramos-Mendoza’s sentence is “at least 5 years,” § 1231(b)(3)(B)(iv).
Accordingly, we need not, and do not, decide which approach is required;
we only conclude that the BIA did not err in determining that Ramos-Mendoza was
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ineligible for withholding of removal because his “aggravated felony” conviction
resulted in a sentence of “at least 5 years.” § 1231(b)(3)(B)(ii), (iv); see also
Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305–07 (9th Cir. 2015) (noting that an
“aggravated felony” conviction resulting in a sentence of “at least 5 years” in
prison constitutes a “particularly serious crime,” rendering a non-citizen ineligible
for withholding of removal).
II
Substantial evidence supports the BIA’s denial of relief under the CAT.
Arbid v. Holder, 700 F.3d 379, 385–86 (9th Cir. 2012) (standard of review). The
record indicates that LGBTQ individuals in Mexico face discrimination at higher
rates than those in the United States and that the Mexican government’s
enforcement of the country’s anti-discrimination laws is sometimes inadequate.
This evidence, however, does not compel the conclusion that if Ramos-Mendoza is
removed to Mexico, he is more likely than not to be tortured “by or at the
instigation of or with the consent or acquiescence of a public official.” 8 C.F.R. §
1208.18(a)(1); see also Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011) (To
reverse, “the evidence must compel a different conclusion from the one reached by
the BIA.”).
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III
The BIA did not abuse its discretion in affirming the IJ’s denials of Ramos-
Mendoza’s motions for a continuance and a change of venue. Taggar v. Holder,
736 F.3d 886, 889 (9th Cir. 2013) (continuance standard of review); Baires v. INS,
856 F.2d 89, 92 (9th Cir. 1988) (change of venue standard of review). Ramos-
Mendoza had a year to prepare for his hearing before the IJ. Nonetheless,
approximately three weeks before this hearing, he dismissed his old attorney, and
acquired a new one. Ramos-Mendoza offers no excuse for this last-minute
substitution, which formed the basis for his motion for a continuance. Further, he
failed to establish prejudice on the record.
His motion for a change of venue suffered from evidentiary shortcomings, in
addition to being last-minute. The evidence Ramos-Mendoza submitted to support
his claim that he moved from Reno, Nevada to San Francisco, California was not
persuasive. Moreover, even if the BIA abused it discretion by affirming the IJ’s
denials of these motions, Ramos-Mendoza fails to show any prejudice. Sandoval-
Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008).
PETITION DENIED.
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