Fernando Fernandez Segura v. Jeffrey Rosen ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 30 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO FERNANDEZ SEGURA, No. 20-70379
Petitioner, Agency No. A090-076-984
v.
MEMORANDUM*
JEFFREY A. ROSEN, Acting Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 11, 2020**
Pasadena, California
Before: N.R. SMITH and LEE, Circuit Judges, and KENNELLY,*** District
Judge.
*
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 Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
Fernando Fernandez Segura, a native of Mexico, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”), which affirmed an
immigration judge’s (“IJ”) conclusion that his conviction was a particularly serious
crime and the IJ’s denial of his application for deferral of removal under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252.
1. Fernandez Segura challenges the immigration court’s jurisdiction because
his Notice to Appear was deficient. We have rejected this jurisdictional argument
in Aguilar Fermin v. Barr, 958 F.3d 887, 894-95 (9th Cir. 2020) and Karingithi v.
Whittaker, 913 F.3d 1158, 1159 (9th Cir. 2019). The immigration court properly
cured the deficiencies by issuing subsequent notices that included the necessary
information in advance of Fernandez Segura’s hearings. See Aguilar Fermin, 958
F.3d at 894-95.
2. The BIA, by relying on the IJ’s reasoning, properly concluded that
Fernandez Segura’s conviction for importation of marijuana under 21 U.S.C.
§§ 952 & 960 was a particularly serious crime barring him from withholding of
removal. See Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (standard of
review); Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (explaining that
when the BIA relies on an IJ’s reasoning, we “examine the reasoning articulated in
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the IJ’s oral decision”). The IJ properly applied the Matter of Y-L- factors and
explained why Fernandez Segura did not rebut the presumption. See Matter of Y-
L-, 23 I. & N. Dec. 270, 275-76 (A.G. 2002), disapproved of on other grounds by
Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003).
Contrary to Fernandez Segura’s argument, Matter of Y-L- did not designate
drug trafficking crimes as per se particularly serious crimes. See Miguel-Miguel v.
Gonzales, 500 F.3d 941, 947 (9th Cir. 2007).1 Further, neither Matter of Y-L- nor
Miguel-Miguel limits the ability of an IJ to consider mental health evidence as set
forth in Gomez-Sanchez v. Sessions, 892 F.3d 985, 990 (9th Cir. 2018). Rather,
Matter of Y-L-’s presumption requires a petitioner meet the six requirements before
“other, more unusual circumstances [such as mental health evidence] might justify
departure from the presumption” Miguel-Miguel, 500 F.3d at 947 (alteration and
quotation marks omitted) (quoting Matter of Y-L-, 23 I. & N. Dec. at 277).
1
Fernandez Segura requests that we revisit Miguel-Miguel. We decline;
Miguel-Miguel was correctly decided. Further, even if we were to agree with
Fernandez Segura, we lack the authority to overrule a prior panel decision. See
State Bar of Cal. v. Findley, 593 F.3d 1048, 1050 (9th Cir. 2010) (“[T]hree judge
panels of our Circuit are bound by prior panel opinions ‘unless an en banc
decision, Supreme Court decision or subsequent legislation undermines those
decisions.’” (quoting Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1441 (9th Cir.
1994))).
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3. Substantial evidence supports the BIA’s conclusion that Fernandez Segura
was ineligible for deferral of removal under CAT. See Flores-Vega, 932 F.3d at
887. The record does not suggest that the BIA failed to consider record evidence.
See Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004). To the contrary, the
BIA, citing to the IJ’s decision, properly concluded that Fernandez Segura’s fear of
torture was based on speculation. See In re J.F.F., 23 I. & N. Dec. 912, 917-18
(A.G. 2006) (“The evidence does not establish that any step in this hypothetical
chain of events is more likely than not to happen, let alone that the entire chain will
come together to result in the probability of torture of respondent.”). Fernandez
Segura has not pointed to any specific evidence in the record that would compel a
conclusion that he will be tortured if removed to Mexico. See Go v. Holder, 640
F.3d 1047, 1053 (9th Cir. 2011).
PETITION FOR REVIEW DENIED.2
2
Fernandez Segura’s Motions for Stay of Removal (Dkts. 1 & 8) are denied
as moot. The temporary stay of removal remains in effect until issuance of the
mandate.
4