FILED
NOT FOR PUBLICATION FEB 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JORGE ALBERTO CUBIAS-GOMEZ, No. 08-71949
AKA Jorge Alberto-Gomez Cubias,
Agency No. A044-806-888
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 8, 2011
Pasadena, California
Before: REINHARDT, RAWLINSON, and N.R. SMITH, Circuit Judges.
Jorge Cubias-Gomez petitions for review of a Board of Immigration Appeals
order finding him removable as an aggravated felon and thus ineligible for asylum,
and also denying his application for withholding of removal. We review the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
aggravated felony determination de novo and the denial of withholding of removal
for substantial evidence, and we deny the petition.
1. We agree with the BIA that the record of conviction establishes that
Cubias’s conviction under Cal. Vehicle Code § 10851(a) was a generic theft
offense within the meaning of the Immigration and Nationality Act. Section
10851(a) encompasses liability for both principals and accessories after the fact to
auto theft, and is therefore a divisible statute. United States v. Vidal, 504 F.3d
1072, 1086 (9th Cir. 2007) (en banc). Cubias was charged as a principal, however,
and Cubias signed a statement on his written plea form that read, “I agree that I did
the things that are stated in the charges that I am admitting.” The plea form
indicated that those “charges” included the specific count alleging a violation of
section 10851(a), and nothing in the record suggests the allegations in that count
were ever changed after the Complaint was filed. We therefore conclude that,
under the modified categorical approach, the record of conviction “confirms that
the plea ‘necessarily rested on the fact identifying the [offense] as generic.’” Vidal,
504 F.3d at 1086 (quoting Shepard v. United States, 544 U.S. 13, 21 (2005)).
2. Substantial evidence supports the BIA’s determination that Cubias is not
entitled to withholding because he provided insufficient evidence to establish that
it is more likely than not that he would be persecuted on account of his political
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opinion concerning gangs. Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir.
2009). Cubias’s testimony did not establish that he would be targeted for
persecution, and he presented no other evidence that he would face a high risk of
persecution. The record does not compel us to conclude that the requisite fear or
likelihood of persecution exists. Id. at 1060. We therefore affirm the BIA’s
determination as to this issue as well.
3. Cubias does not challenge the BIA’s denial of relief under the
Convention Against Torture and of his due process claims, and therefore waives
these claims. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
PETITION DENIED.
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