Felix Fernandez-Mejia v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 30 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIX RICARDO FERNANDEZ-MEJIA, No. 20-70412
AKA Felix Fernandez-Mejia,
Agency No. A021-148-380
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 3, 2021
San Francisco, California
Before: WARDLAW and GOULD, Circuit Judges, and PREGERSON,** District
Judge.
Felix Ricardo Fernandez-Mejia (“Fernandez”) petitions for review of the
Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the
Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
removal, and CAT protection. Because the parties are familiar with the facts and
procedural history of the case, we do not recite them here. We have jurisdiction
under 8 U.S.C. § 1252(a)(1), and we deny the petition.
The petition for review is denied for the following reasons.1
1. Fernandez is incorrect that jurisdiction did not vest with the immigration
court because his Notice to Appear (“NTA”) did not have the time, date, or location
of his removal proceedings. In Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th
Cir. 2019) and Aguilar Fermin v. Barr, 958 F.3d 887, 893–95 (9th Cir. 2020), we
have held the regulation requiring this information is not jurisdictional, and any
defect in the NTA caused by leaving out this information can be cured if it is given
in a later issued Notice of Hearing. Fernandez was given the time, date, and location
of the initial hearing in a later issued Notice of Hearing. Any defect in the NTA was
thus remedied, and so the immigration court had jurisdiction.
2. Fernandez’s Wyoming conviction for attempted voluntary manslaughter
categorically is a crime of violence aggravated felony. If an applicant has been
convicted of a particularly serious crime, the applicant is ineligible for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”) and the
Convention Against Torture (“CAT”). 8 U.S.C. §§ 1158(b)(2)(A)(ii),
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Fernandez has also filed a Motion to Stay Removal and a Motion to Take Judicial
Notice. Fernandez’s Motion to Stay Removal is DENIED and Fernandez’s Motion
to Take Judicial Notice is GRANTED.
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1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Under asylum law, an applicant “shall
be considered to have been convicted of a particularly serious crime” if the applicant
has been convicted of an aggravated felony. 8 U.S.C. § 1158(b)(2)(B)(i). As to
withholding of removal, an applicant who has been “convicted of an aggravated
felony (or felonies) for which the alien has been sentenced to an aggregate term of
imprisonment of at least 5 years shall be considered to have committed a particularly
serious crime.” 8 U.S.C. § 1231(b)(3)(B)(iv). These convictions are considered
“per se” particularly serious crimes. Blandino-Medina v. Holder, 712 F.3d 1338,
1345 (9th Cir. 2013).
To determine if Fernandez’s conviction for attempted voluntary manslaughter
is an aggravated felony, we follow the “categorical approach.” See United States v.
Valdavinos-Torres, 704 F.3d 679, 686–87 (9th Cir. 2012) (citing Taylor v. United
States, 495 U.S. 575, 602 (1990)).
Further, a “crime of violence” is defined under 18 U.S.C. § 16(a) as “an
offense that has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” “[U]se of physical force” under 18
U.S.C. § 16(a) “requires active employment,” and so, requires “a higher degree of
intent than negligent or merely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1,
9 (2004). Physical force under 18 U.S.C. § 16(a) means “violent force—that is, force
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capable of causing physical pain or injury to another person.” Johnson v. United
States, 559 U.S. 133, 140 (2010) (emphasis in original).
First, attempted voluntary manslaughter has the requisite mental state to be
considered “active employment” of force, because it is both a specific intent crime
and involves intentional conduct. Reilly v. State, 55 P.3d 1259, 1262 (Wyo. 2002),
abrogated on other grounds by Granzer v. State, 193 P.3d 266 (Wyo. 2008).
Second, voluntary manslaughter involves violent, physical force. Because the
force used in voluntary manslaughter is force than can cause death, an attempt to
commit the act results from “attempted use of physical force.” See United States v.
Castelman, 572 U.S. 157, 169–170 (2014) (concluding that crimes prohibiting
causing bodily injury are crimes of domestic violence because “‘bodily injury’ must
result from ‘physical force’”). Fernandez’s conviction is a per se particularly serious
crime that precludes both asylum and withholding of removal, since it is an
aggravated felony for which he was sentenced to at least five years in prison. Thus,
Fernandez is ineligible for asylum or withholding of removal.
3. Substantial evidence supports the agency’s finding that Fernandez did not
establish eligibility for CAT deferral. 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a). First,
Fernandez did not show a clear probability of future torture or provide evidence of
past torture. Substantial evidence supports the IJ’s finding that Fernandez could
relocate in Honduras to avoid torture, that his mental illness and homelessness did
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not establish an individualized risk of torture, and that he would be targeted for
torture. Second, substantial evidence also supports the conclusion that Fernandez
did not establish a clear probability of government acquiescence to torture. The IJ
properly based this conclusion on the fact that Fernandez was able to file multiple
police reports, and that the police followed up on at least one occasion. Further,
country conditions evidence suggests that the Honduran government has taken
measures to fight crime and corruption. Thus, the IJ correctly determined the
evidence did not establish a clear probability the Honduran government would
acquiesce to torture.
PETITION DENIED.
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