Hugo Cardenas v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO ERIC CARDENAS, AKA Jose No. 17-73243
Angel Garcia,
Agency No. A087-226-314
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 10, 2020**
Pasadena, California
Before: PARKER,*** CHRISTEN, and WATFORD, Circuit Judges.
Petitioner Hugo Eric Cardenas (“Cardenas”), a native and citizen of Mexico,
seeks review of a November 22, 2017 order of the Board of Immigration Appeals
*
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).
***
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
(“BIA”) dismissing his appeal of an immigration judge’s decision finding him
removable and denying his applications for asylum, withholding of removal, and
protection under the regulations implementing the Convention Against Torture
(“CAT”). This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we
deny the petition.
Substantial evidence supports the agency’s determinations that Cardenas
failed to file his asylum application within the one-year time limit and did not
establish changed circumstances sufficient to excuse the untimely filing. See 8
U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(4); see also Ramadan v. Gonzales,
479 F.3d 646, 657-58 (9th Cir. 2007).
The record before the Court does not compel a contrary result. Cardenas’s
argument that he had the “subjective intent” to timely apply—taken as true—
would not constitute “changed circumstances” sufficient to excuse his late filing. 1
As this Court has explained “the timing of an alien's intent to apply for asylum has
no role in the changed circumstances analysis. Changed circumstances are those
which materially affect the applicant's eligibility for asylum.” Fakhry v. Mukasey,
1
We do not consider the extraordinary circumstances exception because
Cardenas has not asserted that his asylum application is untimely under that
exception. See Vahora v. Holder, 641 F.3d 1038, 1042 n.3 (9th Cir. 2011) (citing
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)).
2
524 F.3d 1057, 1063 (9th Cir. 2008) (internal quotation marks omitted) (citing 8
U.S.C. § 1158(a)(2)(D)).
Further, the agency did not abuse its discretion in concluding that
Cardenas’s conviction under California Penal Code 246.3(a) for willful discharge
of a firearm with gross negligence constituted a particularly serious crime and that
Petitioner was therefore ineligible for withholding of removal under the INA and
under the Conventions Against Torture as a matter of law. See Arbid v. Holder,
700 F.3d 379, 385 (9th Cir. 2012) (per curiam); Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1077 (9th Cir. 2015).
The agency employed the correct legal standard in concluding that in view
of the danger to others caused by Cardenas’s actions in willfully firing a gun in a
grossly negligent manner which could have resulted in injury or death to a person,
Cardenas had been convicted of a particularly serious crime, thereby rendering him
ineligible for withholding of removal and CAT withholding. See Anaya-Ortiz v.
Holder, 594 F.3d 673, 679-80 (9th Cir. 2010); Matter of N-A-M-, 24 I. & N. Dec.
336, 338 (BIA 2007) (explaining the agency “examine[s] the nature of the
conviction, the type of sentence imposed, and the circumstances and underlying
facts of the conviction” to determine whether it was a particularly serious crime).
The agency did not abuse its discretion in determining that Cardenas’s
conviction for willful discharge of a firearm with gross negligence constituted a
3
particularly serious crime. Avendano-Hernandez, 800 F.3d at 1077; Alphonsus v.
Holder, 705 F.3d 1031, 1041 (9th Cir. 2013).
We have considered Petitioner’s other arguments and conclude they are
without merit.
PETITION FOR REVIEW DENIED
4