ROSAS FELIX v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-18No. No. 19-72337

Summary · law.co

Holding. The court denied the petition for review, upholding the agency's denial of relief under the Convention Against Torture and the finding that Rosas-Felix's conviction constituted a particularly serious crime rendering him ineligible for asylum and withholding of removal.

Pedro Rosas-Felix, a Mexican national, sought review of immigration decisions denying him protection from removal under the Convention Against Torture and finding him ineligible for asylum and withholding of removal due to a conviction deemed a particularly serious crime. The court reviewed the immigration agency's legal conclusions fresh and its factual findings for substantial evidence. The court upheld the agency's determination that Rosas-Felix failed to demonstrate a likelihood of torture if returned to Mexico, noting that incidents he experienced—including beatings, a threatening letter, and a shooting at his vehicle—did not establish a particularized threat beyond general risks faced by Mexican citizens, and that police failure to prosecute murders of family members did not by itself prove government acquiescence in torture.

Rosas-Felix also argued his attorneys' concession that his methamphetamine conviction constituted a particularly serious crime should be withdrawn based on intervening court decisions. The court rejected this argument, finding that the cases he relied upon either were withdrawn or were unpublished and thus did not change the law. The court further determined that controlling precedent established his California methamphetamine conviction matched the federal definition of a controlled substance, confirming his ineligibility for asylum regardless of the attorney concession.

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

Key issues

Whether substantial evidence supported denial of deferral of removal under the Convention Against Torture
Whether family members' victimization and police ineffectiveness established government acquiescence in torture
Whether intervening case law entitled petitioner to withdraw attorney's concession regarding the nature of his conviction
Whether California methamphetamine possession conviction qualifies as a drug trafficking aggravated felony under federal law

Procedural posture

Rosas-Felix petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from an Immigration Judge's denial of Convention Against Torture protection and determination that his conviction constituted a particularly serious crime.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Pedro Rosas-Felix, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from an Immigration Judges (IJ) decision denying his application for deferral of removal under the Convention Against Torture (CAT). Rosas-Felix also seeks review of the BIAs decision not to disturb the IJs determination that his conviction constituted a particularly serious crime (PSC), and that, as a result, he is statutorily ineligible for asylum and withholding of removal. Because the parties are familiar with the factual and procedural background of this case, we will not restate it here.

We review the agencys “legal conclusions de novo and its factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.

1. Substantial evidence supports the BIAs denial of Rosas-Felixs application for deferral of removal under CAT because the record does not compel the conclusion that it is more likely than not that he will be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Zheng v. Holder, 644 F.3d 829, 835–36 (9th Cir. 2011); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019). The BIA reasonably determined that the incidents Rosas-Felix experienced—including two beatings at the hands of unknown individuals in a United States prison, receipt of a threatening letter, and an incident in which his truck was shot at in Mexicali—did not establish that he would be subjected to torture if removed to Mexico, even when viewed in conjunction with the deaths, kidnapping, and harm his family members had suffered. Absent evidence of any “particularized threat of torture” beyond that which all citizens of Mexico face, Rosas-Felix cannot obtain relief under CAT. Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted).

Further, the failure of the police to bring the murderers of Rosas-Felixs father and brother to justice “is not in itself sufficient to establish acquiescence in the crime.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Although Rosas-Felix testified that his family fears the police because they believe the police work alongside organized crime, he admitted that he has no evidence of such corruption. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (“Police ineffectiveness is not enough to establish an entitlement to relief, absent evidence of corruption or other inability or unwillingness to oppose criminal organizations.” (internal quotation marks and citation omitted)).

2. The BIA did not abuse its discretion in declining to remand to allow Rosas-Felix to withdraw his attorneys concession that his conviction constitutes a PSC rendering him ineligible for asylum and withholding of removal. Absent “egregious circumstances,” such as an “intervening change in law,” an individual in immigration proceedings is bound by his attorneys admissions. Santiago-Rodriguez v. Holder, 657 F.3d 820, 830–31 (9th Cir. 2011) (citations omitted). Rosas-Felix asserts that this courts intervening decision in Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018), withdrawn by Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), establishes that his conviction did not qualify as a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i); therefore, he contends his conviction would also not qualify as an aggravated felony relating to illicit trafficking in a controlled substance, making his concession that his conviction was a PSC invalid. But Lorenzo v. Sessions was withdrawn, Whitaker, 913 F.3d at 930; the superseding disposition, 752 F. Appx 482 (9th Cir. 2019), is a non-precedential unpublished memorandum decision and did not change the law, see In re Burns, 974 F.2d 1064, 1068 (9th Cir. 1992).

In any event, United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020), forecloses any contention that a conviction for possessing methamphetamine for sale under Cal. Health & Safety Code § 11379 does not fit the federal definition of controlled substance and, therefore, cannot constitute a drug trafficking aggravated felony disqualifying Rosas-Felix from asylum and cancellation of removal. There, this court held “as a matter of law, that Californias definition of methamphetamine is a categorical match to the definition under the federal [Controlled Substances Act].” Id. at 1154 n.5.

PETITION FOR REVIEW DENIED.