Joao Patrao v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOAO PATRAO, No. 18-71896
Petitioner, Agency No. A035-290-110
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Joao Patrao, a native and citizen of Portugal, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision finding him removable and denying his
applications for cancellation of removal, asylum, withholding of removal, 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).
relief under the Convention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. § 1252. We review de novo the agency’s determination that a crime is as
an aggravated felony. Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir.
2020). 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. Tamang
v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). We review de novo due process
claims in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir.
2014). We deny the petition for review.
In his opening brief, Patrao does not raise any challenge to the BIA’s
determination as to his removability. See Lopez-Vasquez v. Holder, 706 F.3d
1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a
party’s opening brief are waived).
The agency did not err in concluding that Patrao’s crime of conviction,
California Penal Code (“CPC”) § 245(a)(4), is categorically a crime of violence
and, thus, an aggravated felony that bars cancellation of removal and asylum. See
8 U.S.C. § 1229b(a)(3); 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i); see also United States
v. Vasquez-Gonzalez, 901 F.3d 1060, 1065-68 (9th Cir. 2018) (petitioner’s offense
under CPC § 245(a)(1) was a crime of violence and thus an aggravated felony);
United States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009) (“If the conviction
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is based on ‘force likely to produce great bodily injury,’ such force . . . represents
‘actual force’ that is violent in nature.”). Patrao’s contention that agency failed to
consider evidence or otherwise erred in its analysis fails as unsupported by the
record. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“[BIA] does
not have to write an exegesis on every contention” (citation and internal quotation
marks omitted)); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)
(concluding petitioner did not overcome the presumption that the BIA reviewed the
record). In light of this disposition, we need not reach Patrao’s challenges to the
agency’s determination that his conviction in violation of California Health and
Safety Code (“CHSC”) § 11379(a) was an aggravated felony that rendered him
ineligible for cancellation of removal and asylum. See Simeonov v. Ashcroft, 371
F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues
unnecessary to the results they reach).
The agency did not abuse its discretion in determining Patrao’s conviction
under CPC § 245(a)(4) was a particularly serious crime barring him from
eligibility for withholding of removal, where it applied the appropriate factors to
weigh the seriousness of the crime in a case-specific inquiry. See Avendano-
Hernandez, 800 F.3d at 1077 (the court’s review “is limited to ensuring that the
agency relied on the appropriate factors and proper evidence to reach [its]
conclusion.”); see also Bare v. Barr, 975 F.3d 952, 964 (9th Cir. 2020) (all reliable
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information may be considered in making a particularly serious crime
determination). We do not reach Patrao’s contentions as to whether his conviction
in violation of CHSC § 11379(a) constituted a particularly serious crime for
purposes of withholding of removal. See Najmabadi, 597 F.3d at 986 (the court’s
review is limited to the actual grounds relied upon by the BIA).
Substantial evidence supports the agency’s denial of deferral of removal
under CAT because Patrao failed to show it is more likely than not he would be
tortured by or with the consent or acquiescence of the government if returned to
Portugal. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
Patrao’s contentions that the IJ and the BIA violated his right to due process
fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to
prevail on a due process claim).
To the extent Patrao challenges the agency’s jurisdiction over his
proceedings under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201
L.Ed.2d 433 (2018), his contention is foreclosed by Aguilar Fermin v. Barr, 958
F.3d 887, 889, 895 (9th Cir. 2020) (“the lack of time, date, and place in the NTA
sent to [petitioner] did not deprive the immigration court of jurisdiction over her
case”).
PETITION FOR REVIEW DENIED.
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