TEJEDA WONG v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-19No. No. 14-74012

Summary · law.co

Holding. The petition for review is denied. The Board of Immigration Appeals applied the correct legal standard in determining that Tejeda-Wong committed a particularly serious crime, and substantial evidence supports the denial of his asylum, withholding of deportation, and Convention Against Torture protection claims.

Oscar Haroldo Tejeda-Wong, a Guatemalan national, sought review of decisions denying his applications for asylum, withholding of deportation, and Convention Against Torture protection. The immigration judge and Board of Immigration Appeals both rejected his claims based on his conviction for a particularly serious crime. The court examined whether the agency properly applied the legal standard for determining that his crime was particularly serious and whether substantial evidence supported the denial of his other relief requests.

The court found that the Board of Immigration Appeals correctly identified and analyzed the factors relevant to classifying Tejeda-Wong's offense as particularly serious. The agency noted that the crime was inherently violent, involved a police officer, occurred while he was driving a stolen vehicle and attempting to flee, took place while he was on probation for a prior burglary, and resulted in a significant sentence. Because of this classification, Tejeda-Wong became ineligible for asylum and withholding of deportation. The court also found substantial evidence supported the denial of Convention Against Torture protection, as Tejeda-Wong failed to demonstrate a likelihood of torture if returned to Guatemala.

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

Key issues

Whether the Board of Immigration Appeals correctly applied the legal standard for determining a crime is particularly serious
Whether substantial evidence supports denial of asylum and withholding of deportation based on a particularly serious crime conviction
Whether substantial evidence supports denial of Convention Against Torture protection

Procedural posture

Tejeda-Wong petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from an immigration judge's decision denying his applications for asylum, withholding of deportation, and Convention Against Torture protection.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Oscar Haroldo Tejeda-Wong, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges (“IJ”) decision denying his application for asylum, withholding of deportation under former 8 U.S.C. § 1253(h)(1), and protection under the Convention Against Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIAs interpretation of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the agencys factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th Cir. 2006). We review for abuse of discretion the agencys determination that a crime was particularly serious. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). “Although we ‘cannot reweigh evidence to determine if the crime was indeed particularly serious, [we] can determine whether the BIA applied the correct legal standard.’ ” Blandino-Medina v. Holder, 712 F.3d 1338, 1342–43 (9th Cir. 2013) (alteration in original) (quoting Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006)). We deny the petition for review.

With respect to the agencys determination that Tejeda-Wong committed a particularly serious crime, the BIA applied the correct standard and engaged in a “case-specific factual analysis” of Tejeda-Wongs crime. Flores-Vega v. Barr, 932 F.3d 878, 884–85 (9th Cir. 2019). Among other things, the BIA noted that the crime was inherently violent and was committed against a uniformed police officer; that Tejeda-Wong was driving a vehicle reported as stolen and attempted to flee, escalating the situation and leading to gunfire; that he committed the offense while on probation for a prior burglary; and that he received a significant sentence. Tejeda-Wongs conviction for a particularly serious crime makes him ineligible for asylum and withholding of deportation.

The particularly serious crime also makes Tejeda-Wong ineligible for withholding of removal under CAT, but not ineligible for deferral of removal. 8 C.F.R. §§ 1208.16(d)(2), 1208.17(a). Substantial evidence supports the agencys denial of CAT protection because Tejeda-Wong failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Mairena v. Barr, 917 F.3d 1119, 1125 (9th Cir. 2019) (per curiam) (stating standard).

PETITION FOR REVIEW DENIED.

FOOTNOTES

. Tejeda-Wong did not challenge the IJs denial of his application for suspension of deportation under NACARA in either the BIA or this court.