Evangelina Palomino-Espinoza v. William Barr ( 2019 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    MAY 28 2019
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    EVANGELINA PALOMINO-                             No.   16-73728
    ESPINOZA,
    Agency No. A090-217-004
    Petitioner,
    v.                                              MEMORANDUM*
    WILLIAM P. BARR, Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted May 17, 2019**
    San Francisco, California
    Before: IKUTA and CHRISTEN, Circuit Judges, and MORRIS,*** District Judge.
    Petitioner Evangelina Palomino-Espinoza seeks review of the Board of
    Immigration Appeals’s (BIA) denial of her applications for withholding of removal
    *
    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 Brian M. Morris, United States District Judge for the
    District of Montana, sitting by designation.
    and for protection under the Convention Against Torture (CAT). Because the
    parties are familiar with the facts, we do not recite them here.
    Jurisdiction is proper pursuant to 8 U.S.C. § 1252. We review for abuse of
    discretion the conclusion that an offense constitutes a particularly serious crime,
    Avendano-Hernandez v. Lynch, 
    800 F.3d 1072
    , 1077 (9th Cir. 2015), and we
    review the agency’s denial of CAT relief for substantial evidence. Ai Jun Zhi v.
    Holder, 
    751 F.3d 1088
    , 1091 (9th Cir. 2014). We deny the petition for review.
    1.     The Agency Did Not Abuse Its Discretion in Making Its Particularly
    Serious Crime Determination. Palomino-Espinoza’s concessions in a 1990 pre-
    sentence report (PSR) detailed her role in a conspiracy to distribute narcotics. She
    argues that the agency abused its discretion by affording greater weight to the PSR
    than it afforded to her 2014 testimony in immigration court about her role in the
    conspiracy. Because “all reliable information may be considered in making a
    particularly serious crime determination, including the conviction records and
    sentencing information,” Anaya-Ortiz v. Holder, 
    594 F.3d 673
    , 678 (9th Cir.
    2010) (internal quotation marks omitted), the agency did not abuse its discretion by
    relying on the concessions included in the PSR.
    Palomino-Espinoza also argues that the agency erred in its particularly
    serious crime determination by failing to address each factor set forth in Matter of
    2
    Frentescu, 18 I & N Dec. 244 (BIA 1982). Our review of a particularly serious
    crime determination “is limited to ensuring that the agency relied on the
    appropriate factors and proper evidence[.]” 
    Avendano-Hernandez, 800 F.3d at 1077
    (internal quotation marks and brackets omitted). Frentescu requires that the
    agency consider the nature of the conviction, the circumstances and underlying
    facts of the conviction, and the type of sentence imposed. 
    Anaya-Ortiz, 594 F.3d at 679
    . In this case, the Immigration Judge considered “all factors” enumerated in
    Frentescu and adequately explained the determination that Palomino-Espinoza had
    been convicted of a particularly serious crime. The BIA adopted and affirmed the
    Immigration Judge’s decision. Because the agency correctly indicated that it was
    relying on the appropriate Frentescu factors, the agency did not abuse its discretion
    in determining that Palomino-Espinoza had been convicted of a particularly serious
    crime.
    2.   Substantial Evidence Supports the Agency’s Denial of CAT
    Protection. The agency did not err by concluding that Palomino-Espinoza failed to
    demonstrate eligibility for deferral of removal under the CAT. To qualify for CAT
    relief, a petitioner must establish that “‘it is more likely than not that he or she
    would be tortured if removed to the proposed country of removal.’” Garcia-
    Milian, v. Holder, 
    755 F.3d 1026
    , 1033 (9th Cir. 2014) (quoting 8 C.F.R.
    3
    § 208.16(c)(2)). The torture must be “inflicted by or at the instigation of or with
    the consent or acquiescence of a public official or other person acting in an official
    capacity.” 
    Id. (internal quotation
    marks omitted). The record shows that the
    Mexican government has taken steps to combat violence against women. “Even
    though, as a practical matter, these steps have not achieved the desired goals of
    resolving crimes and protecting citizens, they support the [agency’s] determination
    that the government is not wilfully blind to attacks on women[.]” 
    Id. at 1035.
    Accordingly, even assuming that Palomino-Espinoza has demonstrated it is more
    likely than not that she will be tortured if removed to Mexico, the record does not
    compel the conclusion that the Mexican government will acquiesce in her torture.
    PETITION FOR REVIEW DENIED.
    4
    

Document Info

Docket Number: 16-73728

Filed Date: 5/28/2019

Precedential Status: Non-Precedential

Modified Date: 5/28/2019