Minjiu Sito v. Holder , 387 F. App'x 700 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
MINJIU SITO, No. 05-74913
Petitioner, Agency No. A071-781-639
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 9, 2010**
San Francisco, California
Before: RYMER, RAWLINSON and CALLAHAN, Circuit Judges.
Minjiu Sito brings this petition for review of the Board of Immigration
Appeals's ('BIA') decision affirming the immigration judge's ('IJ')
determinations that he is removable based on his aggravated felony convictions
and ineligible for relief from removal. We have jurisdiction pursuant to 8 U.S.C. y
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1252. We review the BIA's legal holdings de novo. Simeonov v. Ashcroft, 371
F.3d 532, 535 (9th Cir. 2004). We deny the petition for review.1
1. The BIA did not err in finding Sito removable as an aggravated felon
because his robbery convictions under California Penal Code y 212.5(b) are
categorical crimes of violence under 8 U.S.C. y 1101(a)(43)(F), and Sito was
sentenced to a term of imprisonment of at least one year for his crimes. See U.S. v.
McDougherty, 920 F.2d 569, 573 (9th Cir. 1990) ('[R]obbery under California law
is [] by definition a crime of violence.'); see also Nieves-Medrano v. Holder, 590
F.3d 1057, 1057-58 (9th Cir. 2010). To the extent that Sito argues against
retroactive application to his crimes of the definition of 'aggravated felony'
contained in the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, his challenge is foreclosed by our precedent. See Aragon-Ayon v. INS, 206
F.3d 847, 852-53 (9th Cir. 2000).
2. Sito is statutorily ineligible for relief under former section 212(c) of
the Immigration and Nationality Act ('INA'), 8 U.S.C. y 1182(c), because he was
placed in removal proceedings rather than exclusion proceedings. Abebe v.
Holder, 554 F.3d 1203, 1205 (9th Cir. 2009) (en banc) (per curiam). Further,
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
-2-
aliens in removal proceedings are not denied equal protection of the law because
Congress chose to maµe avenues of relief available in exclusion proceedings that it
did not maµe available to aliens in removal proceedings. Id. at 1206-07. Abebe
thus forecloses each of Sito's challenges to the BIA's refusal to pass on the IJ's
discretionary denial of y 212(c) relief. Cf. Simeonov, 371 F.3d at 538.
3. We have jurisdiction to consider Sito's claim for deferral of removal
under the Convention Against Torture ('CAT'). See Bromfield v. Muµasey, 543
F.3d 1071, 1075 (9th Cir. 2008).
4. We review for substantial evidence the IJ's determination, adopted by
the BIA, that Sito failed to show that he would more liµely than not be tortured if
removed to China. Muradin v. Gonzales, 494 F.3d 1208, 1210 (9th Cir. 2007);
Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004). That is, record evidence
must compel reversal. Muradin, 494 F.3d at 1210.
5. Sito testified that he feared persecution in China based on his United
States criminal record. He also feared that the Chinese government persecutes
students without identity documents, which he testified that he did not µnow how
to obtain. The BIA's determination that the Chinese authorities do not have
interest in crimes committed, prosecuted, and punished beyond their territorial
jurisdiction is supported by substantial evidence. The government has stipulated
-3-
that it will obtain the appropriate travel documents from Chinese authorities before
Sito is deported to China, and Sito has not met his burden to show that he is unable
to get necessary identity documents on his return to China. Thus, the BIA's
determination that Sito has not met his burden to show that he will more liµely than
not be tortured because of inadequate documentation is supported by substantial
evidence.
Accordingly, Sito's petition for review is DENIED.
-4-
FILED
Sito v. Holder, Case No. 05-74913 JUL 13 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
I concur in the result.