Juan Lopez-Quintana v. Jefferson Sessions , 711 F. App'x 424 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN LUIS LOPEZ-QUINTANA, AKA No. 13-73859
Juan Luis Lopez, AKA Juan Luis Lopez
Quintana, AKA Juan Luis Quintana, Agency No. A077-987-091
Petitioner,
MEMORANDUM*
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 12, 2018**
Pasadena, California
Before: McKEOWN and WARDLAW, Circuit Judges, and QUIST,*** District
Judge.
Juan Lopez-Quintana (“Lopez”) petitions for review of the Board of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gordon J. Quist, United States District Judge for the
Western District of Michigan, sitting by designation.
Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s decision finding him removable from the United States. He challenges the
BIA’s denial of his applications for withholding of removal under Section
241(b)(3) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231, and
for withholding and deferral of removal under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review Lopez’s claims for withholding and deferral of removal, as well
his CAT claims and the factual findings underlying the BIA’s order, for substantial
evidence. See Vinh Tan Nguyen v. Holder, 763 F.3d 1022, 1029 (9th Cir. 2014);
Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th Cir. 2006).
The BIA correctly found that Lopez was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and under 8
U.S.C. § 1227(a)(2)(B)(i) as an alien convicted of a crime relating to a controlled
substance.
Lopez’s convictions for possession of methamphetamine for purposes of sale
constituted “particularly serious crimes” as that term has been interpreted by
Matter of Y-L, 23 I & N Dec. 270 (A.G. 2002). Matter of Y-L found that an
aggravated felony involving drug trafficking presumptively constitutes a
particularly serious crime, and established six threshold requirements that Lopez
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was required to meet in order to rebut the presumption. Id. at 276–77; see also
Alphonsus v. Holder, 705 F.3d 1031, 1042–43 (9th Cir. 2013).
Lopez failed to meet the first threshold requirement—that the amount of
methamphetamine he had in his car was only “a very small quantity.” When asked
at a June 28, 2013 hearing how much methamphetamine he had in his car, Lopez
replied that he could not “remember how much it was,” and he did not offer any
other evidence as to quantity. Once the BIA determined that no evidence
supported the quantity requirement, it had no obligation to consider the other
requirements in Matter of Y-L. Lopez’s claim that the drugs were for “personal
use” is not a matter of record but instead an assertion in his brief on appeal to this
court.
Substantial evidence also supported the BIA’s denial of Lopez’s CAT claim.
Lopez bore the burden to establish a clear probability he would be tortured upon
his return to Mexico. Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009).
Such torture must be inflicted “by or at the instigation of or with the consent or
acquiescence of a public official.” Santos-Lemus v. Mukasey, 542 F.3d 738, 747
(9th Cir. 2008) (citation and internal quotations omitted).
The evidence was insufficient to establish a clear probability that Lopez
would be tortured with the acquiescence of government officials if he returned to
Mexico. Lopez had previously returned to Mexico multiple times, apparently
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without incident. While Lopez presented evidence that his family members had
been threatened and harmed in the past, he did not present compelling evidence
that there was a greater than 50% chance that he would be tortured. Lopez’s
reliance on generalized evidence of gang violence and government corruption in
Mexico similarly fails to establish such a likelihood that he would be tortured upon
his return.
PETITION DENIED.
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