Danilo Mairena v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANILO ALBERTO MAIRENA, AKA No. 15-72833

Danilo Alberto Mairewa, AKA

Danilo Alberto Mariena, AKA Agency No.

Danilo Marieno, A027-142-897

Petitioner,

v. OPINION

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 14, 2018 *

Pasadena, California

Filed March 7, 2019

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 MAIRENA V. BARR

Before: Ronald M. Gould and Mary H. Murguia, Circuit

Judges, and Carol Bagley Amon, ** District Judge.

Per Curiam Opinion

SUMMARY ***

Immigration

Denying Danilo Mairena’s petition for review of a

decision of the Board of Immigration Appeals that upheld an

immigration judge’s denial of withholding of removal,

protection under the Convention Against Torture (“CAT”),

and related relief, the panel held that it is appropriate for the

BIA to consider sentencing enhancements when it

determines that a petitioner was convicted of a per se

particularly serious crime.

Mairena was convicted of willful infliction of corporal

injury upon the mother of his child with a prior conviction,

in violation of California Penal Code § 273.5(e)(1), and was

sentenced to five years of imprisonment: four years for the

offense, plus a one-year enhancement, pursuant to California

Penal Code § 12022.5(b)(1), for using a weapon during the

commission of the offense.

**

The Honorable Carol Bagley Amon, United States District Judge

for the Eastern District of New York, sitting by designation.

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

MAIRENA V. BARR 3

In removal proceedings, the BIA concluded that (1)

Mariena was statutorily ineligible for withholding of

removal because he was sentenced to an aggregate term of

five years of imprisonment for his corporal injury

conviction, factoring in the one-year enhancement; and (2)

the IJ did not clearly err in determining that Mairena failed

to establish that he would more likely than not be tortured if

he returned to Nicaragua.

Under 8 U.S.C. § 1231(b)(3)(B)(ii), withholding of

removal is not available “if the Attorney General decides

that . . . the alien, having been convicted by a final judgment

of a particularly serious crime is a danger to the community

of the United States . . . .” The provision further explains:

“For purposes of clause (ii), an alien who has been convicted

of an aggravated felony (or felonies) for which the alien has

been sentenced to an aggregate term of imprisonment of at

least 5 years shall be considered to have committed a

particularly serious crime.”

Mairena did not dispute that his conviction constituted

an aggravated felony, but argued that the BIA erred by

considering the one-year sentencing enhancement in

deciding that he was sentenced to an aggregate term of

imprisonment of five years—and consequently convicted of

a per se particularly serious crime—because the

enhancement was not an element of the offense and because

the statutory maximum for his offense was four years.

The panel noted that aggravated felonies with resulting

sentences of at least five years are per se particularly serious

and, by contrast, aggravated felonies resulting in sentences

fewer than five years are not per se particularly serious and

require a case-by-case analysis. The panel also observed that

this court has already held that it is appropriate for the BIA

4 MAIRENA V. BARR

to consider sentencing enhancements when it determines

that a petitioner was convicted of a particularly serious crime

on a case-by-case basis.

The panel now clarified that it is also appropriate for the

BIA to consider sentencing enhancements when it

determines that a petitioner was convicted of a per se

particularly serious crime. The panel explained that

Mairena’s contention that the BIA could not consider his

sentencing enhancement was foreclosed by the plain

language of § 1231(b)(3)(B), in that the five-year

requirement is keyed to the “aggregate term of

imprisonment” for the actual sentence imposed—not to the

statutory maximum. The panel also observed that nothing in

the text of the statute prohibits the BIA from considering

sentencing enhancements in computing the aggregate term

of imprisonment.

Moreover, the panel noted that, even if it accepted

Mairena’s contention that it should look to the statutory

maximum in interpreting § 1231(b)(3)(B), the statutory

maximum for Mairena’s offense of conviction was in fact

five years, not four years.

The panel also concluded that substantial evidence

supported the BIA’s conclusion that Mairena was ineligible

for CAT relief. The panel concluded that the IJ was not

required to conduct a separate credibility analysis in

adjudicating the CAT claim, explaining that the IJ was

entitled to rely on the adverse credibility determination in

denying CAT relief, provided that the IJ considered other

evidence in the record on country conditions in Nicaragua.

The panel concluded that the IJ did so in this case. The panel

also concluded that the record did not compel the conclusion

MAIRENA V. BARR 5

that Mairena would more likely than not be tortured upon

return to Nicaragua.

COUNSEL

Tania Pham, Law Offices of Tania T. Pham, Woodland

Hills, California, for Petitioner.

Benjamin J. Zeitlin, Attorney; Carl McIntyre, Assistant

Director; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

PER CURIAM:

Petitioner Danilo Mairena, a native and citizen of

Nicaragua, petitions for review of a final order of the Board

of Immigration Appeals (“BIA”) dismissing his appeal of the

Immigration Judge’s (“IJ”) denial of his applications for

withholding of removal, protection under the Convention

Against Torture (“CAT”), and related relief. We have

jurisdiction under 8 U.S.C. § 1252. We deny his petition.

BACKGROUND

Mairena, a native and citizen of Nicaragua born in 1979,

entered the United States on a visitor visa in 1984 and

attained lawful permanent resident status in 1988. Mairena’s

wife, two daughters, and parents reside in the United States,

and he has no family left in Nicaragua.

6 MAIRENA V. BARR

On August 9, 2010, Mairena was convicted of willful

infliction of corporal injury upon the mother of his child with

a prior conviction, in violation of California Penal Code

§ 273.5(e)(1). 1 He had been previously convicted of

corporal injury to a spouse in 2008. Mairena was sentenced

to five years of imprisonment: four years for the offense,

plus a one-year enhancement, pursuant to California Penal

Code § 12022.5(b)(1), 2 for using a weapon during the

commission of the offense. That same day, Mairena was

also convicted of dissuading a witness, in violation of

California Penal Code § 136.1(c)(1), for which he was

sentenced to three years of imprisonment.

On October 10, 2013, the Department of Homeland

Security served Mairena with a Notice to Appear and

charged him as removable based on those two felony

convictions under § 237(a)(2)(A)(iii) of the Immigration and

Nationality Act. See 8 U.S.C. § 1227(a)(2)(A)(iii). On

1

California Penal Code § 273.5(e)(1) has been amended since

Mairena’s conviction. Mairena was convicted under what is now

California Penal Code § 273.5(f)(1). Compare Cal. Penal Code

§ 273.5(e)(1) (2010), with id. § 273.5(f)(1) (2018).

2

Although the judgment of conviction lists California Penal Code

§ 12022.5(b)(1) as the source of the one-year enhancement, it

presumably should have listed California Penal Code § 12022(b)(1).

The former authorizes an additional term of five, six, or ten years for the

use of an assault weapon; the latter authorizes an additional term of one

year for the use of a deadly or dangerous weapon in the commission of

a felony. Compare Cal. Penal Code § 12022.5(b)(1) (2010), with id.

§ 12022(b)(1) (2010). The First Amended Information charges Mairena

under the latter provision for using a pipe during the offense. In any

event, the particular enhancement provision is irrelevant to our

resolution of the issues presented in this case.

MAIRENA V. BARR 7

March 20, 2014, the IJ (Walsh, I.J.) concluded that Mairena

was removable as charged.

On May 15, 2014, Mariena applied for asylum,

withholding of removal, and CAT protection. In his

application, Mairena alleged that he feared that the

Sandinistas would kill him because his family was

previously persecuted by the Sandinistas and was currently

fighting with President Daniel Ortega to recover seized

family property. 3 On October 15, 2014, Mairena applied for

adjustment of status and a waiver of inadmissibility.

On April 1, 2015, the IJ denied all relief. As relevant to

this petition, the IJ concluded as follows: (1) Mairena was

statutorily ineligible for withholding of removal because he

was sentenced to an aggregate term of eight years of

imprisonment for his two felony convictions, and therefore

convicted of a per se particularly serious crime; and

(2) Mariena failed to carry his burden of proving that he

would more likely than not be tortured if he returned to

Nicaragua, and thus CAT protection was not warranted.

On August 27, 2015, the BIA affirmed the IJ’s decision

and dismissed Mairena’s appeal. As relevant to this petition,

the BIA concluded as follows: (1) Mariena was statutorily

ineligible for withholding of removal because he was

sentenced to an aggregate term of five years of imprisonment

for his corporal injury conviction, factoring in the one-year

enhancement; and (2) the IJ did not clearly err in determining

that Mairena failed to establish that he would more likely

3

According to the United States Department of State Nicaragua

2013 Human Rights Report, contained in the record below, the

Sandinista National Liberation Front is a political party that has

increasingly concentrated political power in Nicaragua.

8 MAIRENA V. BARR

than not be tortured if he returned to Nicaragua. The BIA

did not rely on Mairena’s conviction for dissuading a

witness, for which he was sentenced to three years of

imprisonment.

On September 14, 2015, Mairena timely petitioned this

Court for review.

JURISDICTION AND STANDARD OF REVIEW

We lack jurisdiction to review “any final order of

removal against an alien who is removable” because he

committed an aggravated felony, see 8 U.S.C.

§§ 1252(a)(2)(C), 1227(a)(2)(A)(iii), but “we retain

jurisdiction to decide our own jurisdiction and to resolve

questions of law,” Bolanos v. Holder, 734 F.3d 875, 876 (9th

Cir. 2013). “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.” Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir.

2014) (alteration in original) (quoting Blandino-Medina v.

Holder, 712 F.3d 1338, 1343 (9th Cir. 2013)).

We also have jurisdiction to review the BIA’s denial of

CAT protection where, as here, “the IJ did not rely on

[petitioner’s] conviction . . . but instead denied relief on the

merits.” Alphonsus v. Holder, 705 F.3d 1031, 1036–37 (9th

Cir. 2013), abrogated on other grounds as recognized in

Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018).

Where “the BIA conducts its own review of the evidence

and law, rather than adopting the IJ’s decision, our review is

limited to the BIA’s decision, except to the extent the IJ’s

opinion is expressly adopted.” Zumel v. Lynch, 803 F.3d

463, 471 (9th Cir. 2015) (quoting Rodriguez v. Holder,

683 F.3d 1164, 1169 (9th Cir. 2012)). “[W]e treat the

MAIRENA V. BARR 9

incorporated parts of the IJ’s decision as the BIA’s.” Rivera

v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007).

We review legal questions de novo and factual findings,

including adverse credibility determinations, for substantial

evidence. Vilchez v. Holder, 682 F.3d 1195, 1198–99 (9th

Cir. 2012); Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.

2010). Under the substantial evidence standard,

“administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to

the contrary . . . .” 8 U.S.C. § 1252(b)(4)(B); see also

Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007)

(“Under the substantial evidence standard, the court upholds

the BIA’s determination unless the evidence in the record

compels a contrary conclusion.”).

DISCUSSION

I. The Particularly Serious Crime Determination

In general, an alien is entitled to withholding of removal

if “the alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nationality,

membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3)(A). But withholding of

removal is not available “if the Attorney General decides

that . . . the alien, having been convicted by a final judgment

of a particularly serious crime is a danger to the community

of the United States . . . .” Id. § 1231(b)(3)(B)(ii). The

provision further explains:

For purposes of clause (ii), an alien who has

been convicted of an aggravated felony (or

felonies) for which the alien has been

sentenced to an aggregate term of

imprisonment of at least 5 years shall be

10 MAIRENA V. BARR

considered to have committed a particularly

serious crime. The previous sentence shall

not preclude the Attorney General from

determining that, notwithstanding the length

of sentence imposed, an alien has been

convicted of a particularly serious crime.

Id. § 1231(b)(3)(B).

Under the statute, the appropriate analytical lens depends

on the length of the sentence imposed. “[A]ggravated

felonies with resulting sentences of at least five years are per

se particularly serious . . . .” Guerrero, 908 F.3d at 545. By

contrast, “aggravated felonies resulting in sentences fewer

than five years are not per se particularly serious and still

require a case-by-case analysis . . . .” Blandino-Medina,

712 F.3d at 1347 (quoting Afridi v. Gonzales, 442 F.3d 1212,

1220 n.4 (9th Cir. 2006)). 4

Mairena does not dispute that his conviction for corporal

injury constitutes an aggravated felony. 5 He argues,

4

Under the case-by-case analysis, this Court considers the

conviction in light of the Frentescu factors: “the nature of the conviction,

the circumstances and underlying facts of the conviction, the type of

sentence imposed, and, most importantly, whether the type and

circumstances of the crime indicate that the alien will be a danger to the

community.” Konou, 750 F.3d at 1127 (quoting Matter of Frentescu,

18 I & N. Dec. 244, 247 (B.I.A. 1982)). We review for abuse of

discretion the BIA’s case-by-case determination that an individual was

convicted of a particularly serious crime. Id.

5

“As used in immigration law, ‘aggravated felony’ is a term of art

referring to the offenses enumerated under [8 U.S.C.] § 1101(a)(43).”

Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011) (en banc).

Among the enumerated offenses is “a crime of violence . . . for which

MAIRENA V. BARR 11

however, that the BIA erred by considering the one-year

sentencing enhancement in deciding that he was sentenced

to an aggregate term of imprisonment of five years—and

consequently convicted of a per se particularly serious

crime—because the enhancement was not an element of the

offense and because the statutory maximum for his offense

is four years. Instead, he contends, the BIA should have

engaged in a case-by-case analysis.

We have already held that it is appropriate for the BIA to

consider sentencing enhancements when it determines that a

petitioner is convicted of a particularly serious crime on a

case-by-case basis. Konou, 750 F.3d at 1128. As this Court

explained, the case-by-case analysis calls for analyzing the

“type of sentence imposed,” and “[a]n enhanced sentence by

its plain language can be considered a type of sentence.”

Konou, 750 F.3d at 1128. We thus rejected the argument

that “the BIA cannot consider a sentencing enhancement

when it determines whether a crime is particularly serious.”

Id.

We now clarify that it is also appropriate for the BIA to

consider sentencing enhancements when it determines that a

petitioner was convicted of a per se particularly serious

crime. See Garcia v. Lynch, 652 F. App’x 591, 593 (9th Cir.

2016) (applying Konou to a per se particularly serious crime

determination). Mairena’s contention that the BIA could not

consider his sentencing enhancement is foreclosed by the

plain language of the statute. Section 1231(b)(3)(B) asks

whether the individual has been convicted of an aggravated

felony for which he “has been sentenced to an aggregate

term of imprisonment of at least 5 years.” 8 U.S.C.

the term of imprisonment [is] at least one year.” 8 U.S.C.

§ 1101(a)(43)(F).

12 MAIRENA V. BARR

§ 1231(b)(3)(B). Thus, the five-year requirement is keyed

to the “aggregate term of imprisonment” for the actual

sentence imposed—not to the statutory maximum. Cf.

United States v. Corona-Sanchez, 291 F.3d 1201, 1208–09

(9th Cir. 2002) (en banc) (in determining whether a

conviction categorically qualifies as an aggravated felony

because it is an offense “for which the term of imprisonment

[is] at least one year,” 8 U.S.C. § 1101(a)(43)(G), a court

“must consider the sentence available for the crime itself,

without considering separate recidivist sentencing

enhancements”), superseded by statute on other grounds as

explained in United States v. Gomez-Mendez, 486 F.3d 599,

604–05 (9th Cir. 2007); Rusz v. Ashcroft, 376 F.3d 1182,

1184–85 (9th Cir. 2004) (applying Corona-Sanchez to a

provision of the Immigration and Nationality Act that

provides for the removal of an alien convicted of, inter alia,

“a crime for which a sentence of one year or longer may be

imposed” (quoting 8 U.S.C. § 1227(a)(2)(A)(i)(II))).

Nothing in the text of § 1231(b)(3)(B) prohibits the BIA

from considering sentencing enhancements in computing the

aggregate term of imprisonment.

Moreover, even if we accepted Mairena’s contention that

we should look to the statutory maximum in interpreting

§ 1231(b)(3)(B), the statutory maximum for Mairena’s

offense of conviction was in fact five years, not four years.

Although the statutory maximum for a corporal injury

conviction under California Penal Code § 273.5(a) was

indeed four years, Mairena was convicted under California

Penal Code § 273.5(e)(1), which provided for an enhanced

statutory maximum of five years for an individual with a

prior corporal injury conviction within the last seven years.

Compare Cal. Penal Code § 273.5(a) (2010), with id.

§ 273.5(e)(1) (2010). When he was convicted in 2010,

Mairena had such a prior conviction from 2008.

MAIRENA V. BARR 13

Accordingly, the BIA applied the correct legal standard

when it determined that Mairena was convicted of a per se

particularly serious crime and was therefore ineligible for

withholding of removal.

II. The Denial of CAT Protection

An individual who is ineligible for withholding of

removal is nevertheless eligible for “deferral of removal to

the country where he or she is more likely than not to be

tortured.” 8 C.F.R. § 1208.17(a). “Torture is an extreme

form of cruel and inhuman treatment that either (1) is not

lawfully sanctioned by that country or (2) is lawfully

sanctioned by that country, but defeats the object and

purpose of CAT.” Konou, 750 F.3d at 1124 (quoting

Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir.

2014)); see also 8 C.F.R. § 1208.18(a)(1) (defining torture).

In addition, 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.”

8 C.F.R. § 1208.18(a)(1); see also Garcia-Milian, 755 F.3d

at 1033.

The applicant bears the burden of proving that he is

eligible for deferral of removal under CAT. 8 C.F.R.

§ 1208.17(d)(3). “Evidence of past torture inflicted upon the

applicant” is relevant in assessing whether torture is more

likely than not. 8 C.F.R. § 1208.16(c)(3); see also

Kamalthas v. I.N.S., 251 F.3d 1279, 1282 (9th Cir. 2001). A

United States Department of State report “can carry an

applicant’s burden of establishing a probability of torture,”

but it “can also serve to outweigh an applicant’s evidence of

a probability of torture.” Konou, 750 F.3d at 1125. In

addition, the “testimony of the applicant, if credible, may be

sufficient to sustain the burden of proof without

14 MAIRENA V. BARR

corroboration.” 8 C.F.R. § 1208.16(c)(2); see also Konou,

750 F.3d at 1124.

Substantial evidence supports the BIA’s conclusion that

Mairena was ineligible for CAT relief. First, the IJ was not

required to conduct a separate credibility analysis in

adjudicating Mairena’s CAT claim. Contrary to Mairena’s

contention, the IJ was entitled to rely on the adverse

credibility determination in denying CAT relief, see Singh v.

Lynch, 802 F.3d 972, 977 (9th Cir. 2015), provided that the

IJ considered other evidence in the record on country

conditions in Nicaragua, Kamalthas, 251 F.3d at 1282–84.

The IJ did so in this case. Second, the record does not

compel the conclusion that Mairena would more likely than

not be tortured upon return to Nicaragua. Although both

Mairena and his family expressed fear that he would be

tortured because of his family’s pro-Contra association,

(1) the persecution for which his family received political

asylum transpired thirty years ago, (2) Mairena himself was

never tortured, and (3) there was no evidence that Mairena

or anyone in his family had received threats while attempting

to regain family land from the government. Mairena has not

contested the accuracy of these findings on appeal; instead,

he essentially seems to disagree with the agency’s

conclusion. But “our task ‘is to determine whether there is

substantial evidence to support the BIA’s finding, not to

substitute an analysis of which side in the factual dispute we

find more persuasive.’” Singh, 802 F.3d at 974–75 (quoting

Molina-Morales v. I.N.S., 237 F.3d 1048, 1050 (9th Cir.

2001)). The BIA also concluded that, while the Department

of State report indicates that some former Contras were

likely killed by the Nicaraguan government, those

individuals—unlike Mairena—were well known and

involved in armed confrontations. The “BIA’s interpretation

of the Report is entitled to deference.” Konou, 750 F.3d at

MAIRENA V. BARR 15

1125; see also Dhital v. Mukasey, 532 F.3d 1044, 1051–52

(9th Cir. 2008) (per curiam) (denying CAT relief where the

Department of State reports indicate that torture has

occurred, but “do not indicate that [petitioner] would face

any particular threat of torture beyond that of which all

citizens of Nepal are at risk”). Finally, Mairena has not

suggested on appeal that either the IJ or the BIA failed to

consider relevant evidence in the record.

Accordingly, substantial evidence supports the BIA’s

determination that Mairena failed to establish that he would

more likely than not be tortured in Nicaragua.

Petition DENIED.