Helio Escobar-Cuellar v. Loretta E. Lynch , 650 F. App'x 446 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HELIO ESCOBAR-CUELLAR, a.k.a. No. 12-73317
Helio Balmore Escobar Cuellar,
Agency No. A094-317-517
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 6, 2016
Pasadena, California
Before: M. SMITH and NGUYEN, Circuit Judges, and GORDON,** District
Judge.
Helio Escobar-Cuellar petitions for review of a decision by the Board of
Immigration Appeals (BIA) denying his applications for asylum, withholding of
removal, and cancellation of removal. We have jurisdiction under 8 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Andrew P. Gordon, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
1252(a), and we deny the petition.
The BIA properly determined that Escobar-Cuellar was ineligible for
cancellation of removal because he was previously convicted of a crime involving
moral turpitude (“CIMT”) for which a sentence of one year or longer may be
imposed. See 8 U.S.C. § 1229b(b)(1)(C); 8 U.S.C. § 1227(a)(2)(i). Namely,
Escobar-Cuellar pled guilty to felony grand theft, a crime punishable under
California law by up to three years. Cal. Penal Code § 489. Escobar-Cuellar argues
that his conviction was converted to a misdemeanor by operation of California
Penal Code § 17(b)(1), but § 17(b)(1) does not apply where, as here, the imposition
of sentence was suspended.1 See United States v. Robinson, 967 F.2d 287, 293 (9th
Cir. 1992), recognized as overruled in other part by Ortega-Mendez v. Gonzales,
450 F.3d 1010, 1019–20 (9th Cir. 2006). Therefore, because the record shows that
Escobar-Cuellar was convicted of CIMT for which a three-year sentence could
1
At oral argument, Escobar-Cuellar’s counsel for the first time asked the court to
take judicial notice of a transcript of a state court oral decision, dated April 22,
2016, granting a motion to reduce his conviction to a misdemeanor under
California Penal Code § 17(b)(3). Because our review is limited to the
administrative record, this request for judicial notice is denied. Fisher v. INS, 79
F.3d 955, 964 (9th Cir. 1996). To seek consideration of this new evidence,
Escobar-Cuellar’s proper course of action is to seek to reopen the proceedings
below.
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have been imposed, the BIA properly found that he was ineligible for cancellation
of removal.
Substantial evidence supports the BIA’s denial of Escobar-Cuellar’s
application for withholding of removal. The BIA’s determination that any
persecution suffered by Escobar-Cuellar was on account of his membership in the
army, not his political opinion, is supported by the record. Absent any evidence
that the guerillas singled out Escobar-Cuellar for his political opinion, evidence of
generalized antagonism toward him as an army member does not constitute
persecution on a protected ground. See Cruz-Navarro v. INS, 232 F.3d 1024, 1030
(9th Cir. 2000) (rejecting the petitioner’s argument that the guerillas had imputed
“pro-government, anti-communist political beliefs to him,” and instead concluding
that the petitioner “fail[ed] to link his persecution to anything other than his status
as a police officer”).
Finally, we note that Escobar-Cuellar did not challenge on appeal the
agency’s decision denying his asylum application as untimely.
PETITION FOR REVIEW DENIED.
3