PATRAO v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-19No. No. 18-71896

Summary · law.co

Holding. The petition for review is denied.

Joao Patrao, a Portuguese national, challenged a decision finding him removable from the United States and denying his applications for cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture. The immigration judge and Board of Immigration Appeals determined that Patrao's convictions—one under California Penal Code § 245(a)(4) for assault with force likely to produce great bodily injury, and another under California Health and Safety Code § 11379(a) for drug-related offenses—constituted aggravated felonies barring him from the relief he sought. The court reviewed whether these determinations were legally sound and whether the agency properly applied relevant factors in evaluating Patrao's eligibility for protection from removal.

The court found no error in the agency's classification of Patrao's crime of violence conviction as an aggravated felony that rendered him ineligible for cancellation of removal and asylum. The conviction under Penal Code § 245(a)(4) involved force capable of producing serious injury, which qualifies as a violent offense under immigration law. The agency also properly exercised its discretion in determining this conviction constituted a particularly serious crime barring withholding of removal. Additionally, Patrao failed to demonstrate that removal to Portugal would more likely than not result in torture by the Portuguese government or with its consent, so the denial of relief under the Convention Against Torture was supported by adequate evidence. Patrao's due process challenges and jurisdictional arguments also failed to persuade the court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a conviction under California Penal Code § 245(a)(4) qualifies as a crime of violence and aggravated felony
Whether the agency properly determined the conviction constituted a particularly serious crime
Whether substantial evidence supported denial of Convention Against Torture relief
Whether due process violations occurred in the removal proceedings

Procedural posture

Patrao petitioned for review of the Board of Immigration Appeals' order affirming the immigration judge's decision finding him removable and denying applications for relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

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 judges (“IJ”) decision finding him removable and denying his applications for cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the agencys 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 agencys particularly serious crime determination. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). We review for substantial evidence the agencys 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 BIAs 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 partys opening brief are waived).

The agency did not err in concluding that Patraos 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) (petitioners 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 is based on ‘force likely to produce great bodily injury,’ such force ․ represents ‘actual force’ that is violent in nature.”). Patraos 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 Patraos challenges to the agencys 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 Patraos 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 courts 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 information may be considered in making a particularly serious crime determination). We do not reach Patraos 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 courts review is limited to the actual grounds relied upon by the BIA).

Substantial evidence supports the agencys 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).

Patraos 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 agencys 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.