Sebastian Mejia-Leon v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEBASTIAN MEJIA-LEON, AKA Jose No. 18-73104
Antonio Mejia,
Agency No. A044-347-845
Petitioner,
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.
Sebastian Mejia-Leon, 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 applications for cancellation of removal
and asylum, withholding of removal, and relief under the Convention Against
*
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).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. Whether a
crime is as an aggravated felony is a question of law subject to de novo review.
Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020). We review for
substantial evidence the agency’s factual findings. Garcia-Milian v. Holder, 755
F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the petition
for review.
Mejia-Leon’s conviction for cultivating marijuana under Cal. Health &
Safety Code § 11358 (“CHSC”) is categorically an aggravated felony drug
trafficking offense. See United States v. Reveles-Espinoza, 522 F.3d 1044, 1047-
48 (9th Cir. 2008). Accordingly, the agency did not err in concluding that Mejia-
Leon was not eligible for cancellation of removal, see 8 U.S.C § 1229b(a)(3), and
asylum, see 8 U.S.C. §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i).
Because Mejia-Leon was found removable due to his conviction for an
aggravated felony crime, our jurisdiction to review the agency’s particularly
serious crime determination is limited to constitutional claims and questions of
law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Pechenkov v. Holder, 705 F.3d 444, 448-
49 (9th Cir. 2012). We reject Mejia-Leon’s contention that the agency misapplied
the law or otherwise erred in its particularly serious crime determination, where the
agency considered the appropriate factors in a case-specific inquiry. See Flores-
Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (“[W]e lack jurisdiction over the
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BIA’s ultimate determination that [petitioner] committed a particularly serious
crime… But we retain jurisdiction to determine whether the BIA applied the
correct legal standard.” (internal citation and quotation marks omitted)); Anaya-
Ortiz v. Holder, 594 F.3d 673, 679-80 (9th Cir. 2010) (concluding that the agency
engaged in the appropriate particularly serious crime analysis). To the extent
Mejia-Leon challenges the agency’s weighing of factors, we lack jurisdiction to
review it. See Pechenkov, 705 F.3d at 448-49. Thus, Mejia-Leon’s withholding of
removal claim fails. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).
Mejia-Leon’s contentions as to the validity of his conviction under CHSC
§ 11358 are not properly before this court. See Ramirez-Villalpando v. Holder,
645 F.3d 1035, 1041 (9th Cir. 2011) (a collateral attack on a criminal conviction is
not properly considered in a petition for review of a BIA decision).
Substantial evidence supports the BIA’s denial of deferral of removal under
CAT because Mejia-Leon 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
Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We reject as
unsupported by the record Mejia-Leon’s contentions that the agency misapplied
the law or otherwise erred in its analysis of his deferral of removal under CAT
claim.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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