Oscar Tejeda-Wong v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR HAROLDO TEJEDA-WONG, No. 14-74012
Petitioner, Agency No. A070-125-754
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2021**
Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.
Oscar Haroldo Tejeda-Wong, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his application for
asylum, withholding of deportation under former 8 U.S.C. § 1253(h)(1), and
*
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).
protection under the Convention Against Torture (“CAT”).1
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions
of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the
extent that deference is owed to the BIA’s interpretation of the governing statutes
and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We
review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales,
453 F.3d 1182, 1184–85 (9th Cir. 2006). We review for abuse of discretion the
agency’s determination that a crime was particularly serious. Avendano-
Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). “Although we ‘cannot
reweigh evidence to determine if the crime was indeed particularly serious, [we]
can determine whether the BIA applied the correct legal standard.’” Blandino-
Medina v. Holder, 712 F.3d 1338, 1342–43 (9th Cir. 2013) (alteration in original)
(quoting Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006)). We deny the
petition for review.
With respect to the agency’s determination that Tejeda-Wong committed a
particularly serious crime, the BIA applied the correct standard and engaged in a
“case-specific factual analysis” of Tejeda-Wong’s crime. Flores-Vega v. Barr, 932
F.3d 878, 884–85 (9th Cir. 2019). Among other things, the BIA noted that the
1
Tejeda-Wong did not challenge the IJ’s denial of his application for
suspension of deportation under NACARA in either the BIA or this court.
2 14-74012
crime was inherently violent and was committed against a uniformed police
officer; that Tejeda-Wong was driving a vehicle reported as stolen and attempted
to flee, escalating the situation and leading to gunfire; that he committed the
offense while on probation for a prior burglary; and that he received a significant
sentence. Tejeda-Wong’s conviction for a particularly serious crime makes him
ineligible for asylum and withholding of deportation.
The particularly serious crime also makes Tejeda-Wong ineligible for
withholding of removal under CAT, but not ineligible for deferral of removal. 8
C.F.R. §§ 1208.16(d)(2), 1208.17(a). Substantial evidence supports the agency’s
denial of CAT protection because Tejeda-Wong 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 Guatemala. See Mairena v. Barr, 917 F.3d 1119, 1125
(9th Cir. 2019) (per curiam) (stating standard).
PETITION FOR REVIEW DENIED.
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