Sosa v. Holder , 457 F. App'x 691 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO C. SOSA, No. 04-71994
Petitioner, Agency No. A070-663-257
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 10, 2007
Pasadena, California
Before: BERZON and IKUTA, Circuit Judges, and SINGLETON, Senior District
Judge.**
Fernando Sosa, a citizen of Ecuador, petitions this court for review of a
decision of the Board of Immigration Appeals (BIA) dismissing his appeal from an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, sitting by designation.
Immigration Judge’s (IJ) denial of asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). We deny the petition.
1. On June 18, 1999, Sosa pleaded “no contest” to a violation of California
Penal Code § 273.5(a),“willfully inflict[ing]” on his spouse “corporal injury
resulting in a traumatic condition.” The BIA affirmed the IJ’s finding that Sosa
had thus been convicted of a “particularly serious crime” and is therefore ineligible
for asylum under 8 U.S.C. § 1158(b)(2)(A)(ii) and for withholding of removal
under 8 U.S.C. § 1231 (b)(3)(B)(ii).
The IJ applied the correct legal standard in evaluating Sosa’s conviction.
Whether a crime is “particularly serious” is a case-specific determination, “the
proper focus” of which “is on the nature of the crime.” In re N-A-M-, 24 I. & N.
Dec. 336, 342 (BIA 2007); see also Anaya-Ortiz v. Holder, 594 F.3d 673, 679 (9th
Cir. 2010) (quoting In re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)).
“[O]nce the elements of the offense are examined and found to potentially bring
the offense within the ambit of a particularly serious crime, all reliable information
may be considered in making a particularly serious crime determination.” Anaya-
Ortiz, 594 F.3d at 677 (quoting N-A-M-, 24 I. & N. Dec. at 342).
The IJ’s citation of the preliminary hearing transcript and his
characterization of the events underlying Sosa’s conviction make clear that he
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performed the individualized inquiry into the circumstances of Sosa’s conviction
required under our caselaw. See Afridi v. Gonzales, 442 F.3d 1212, 1219-20
(2006), overruled on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d
1147, 1160 n.15 (9th Cir. 2008) (en banc). That Sosa’s sentence was minimal is
not dispositive, for “the sentence imposed is not a dominant factor in determining
whether a conviction is for a particularly serious crime.” N-A-M-, 24 I. & N. Dec.
at 343 (citing In re Y-L-, A-G-, & R-S-R-, 23 I. & N. Dec. 270, 273-74, 277-78
(A.G. 2002)); see also Afridi, 442 F.3d at 1220-21. The IJ properly relied upon
the nature of Sosa’s conviction and the underlying circumstances in which Sosa’s
crime was committed to find that it was “particularly serious.”
This determination is supported by substantial evidence. See Andriasian v.
INS, 180 F.3d 1033, 1040 (9th Cir. 1999). Although she later recanted, Sosa’s
wife reported to a police officer that Sosa had raped her, and a medical
examination showed evidence of physical injury. The IJ found that the evidence in
the record demonstrated that Sosa “actually committed marital rape,” which the IJ
characterized as “a horrendous crime” that he had “no doubt . . . is . . . particularly
serious.” The evidence does not “compel[] a contrary conclusion.” See id. at 1040(quoting Meza-Manay v. INS, 139 F.3d 759, 762 (9th Cir.1998)) (internal quotation
marks omitted).
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2. To obtain deferral of removal under CAT, Sosa “was required to prove that”
it is “more likely than not” that, if removed to Ecuador, he would “be tortured at
the instigation of, or with the acquiescence of the” Ecuadoran government. See
Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir. 2011) (en banc) (quoting Silaya
v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008)) (internal quotation marks
omitted). The BIA’s determination that Sosa did not meet this burden is supported
by substantial evidence. Although Sosa demonstrated that he had been persecuted
in the past, there is no evidence in the record that those who tortured him over
twenty years ago would do so again, or that if they did so, such torture would be
instigated or acquiesced in by the Ecuadoran government. The record “does not
compel the conclusion that [Sosa] will be tortured” if returned to Ecuador. Cf.
Delgado, 648 F.3d at 1108.
PETITION DENIED.
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