Fernando Castillo v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO CASTILLO, No. 20-71083
Petitioner, Agency No. A074-423-399
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Fernando Castillo, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, relief under the Convention Against Torture (“CAT”), and his application
*
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).
for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the agency’s particularly serious crime
determination. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir.
2015). We review for substantial evidence the agency’s factual findings. Zehatye
v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We review de novo
questions of law. Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th Cir. 2005).
We deny the petition for review.
The agency did not abuse its discretion in determining that Castillo’s
conviction was a particularly serious crime that barred him from asylum and
withholding of removal, where the agency considered the correct factors. See
Avendano-Hernandez, 800 F.3d at 1077 (“Our review is limited to ensuring that
the agency relied on the appropriate factors and proper evidence to reach this
conclusion.” (internal quotation marks and citation omitted)); Anaya-Ortiz v.
Holder, 594 F.3d 673, 678 (9th Cir. 2010) (“[A]ll reliable information may be
considered in making a particularly serious crime determination….” (citation
omitted)). Thus, Castillo’s asylum and withholding of removal claims fail.
Substantial evidence supports the agency’s denial of deferral of removal
under CAT because Castillo failed to show it is more likely than not he will be
tortured by or with the consent or acquiescence of the government if returned to
Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
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The BIA did not err in concluding that Castillo is statutorily precluded from
establishing good moral character because he was incarcerated, as a result of a
conviction, for more than 180 days during the relevant period. See 8 U.S.C.
§ 1101(f)(7); Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1233 (9th Cir. 2008)
(concluding that a petitioner was ineligible for cancellation of removal under 8
U.S.C. § 1101(f)(7)). We do not otherwise address Castillo’s contentions as to
whether his conviction constitutes a crime involving moral turpitude because the
agency relied on the length of his incarceration, not the nature of his crime. See
Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing
the decision of the BIA, we consider only the grounds relied upon by that agency.”
(citation and internal quotation marks omitted)). Thus, Castillo’s cancellation of
removal claim fails.
As stated in the court’s June 11, 2020 order, the temporary stay of removal
remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
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