FILED
NOT FOR PUBLICATION SEP 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE M. LOPEZ, No. 11-70733
Petitioner, Agency No. A094-391-074
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 11, 2014**
San Francisco, California
Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
Jorge Lopez, a native and citizen of El Salvador, petitions for review of the
order of the Board of Immigration Appeals (“BIA”) that affirmed the Immigration
Judge’s (“IJ”) denial of his application for asylum and denial of his application for
special rule cancellation of removal under Section 203 of the Nicaraguan
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Adjustment and Central American Relief Act (“NACARA”). Lopez also petitions
for review of the BIA’s order revoking the IJ’s grant of voluntary departure. We
have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review in its
entirety.
When, as here, the BIA conducts its own review of the evidence and law,
“our review is limited to the BIA’s decision, except to the extent the IJ’s opinion is
expressly adopted.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000).
We review to determine whether the BIA’s decision to deny asylum is supported
by substantial evidence. Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010).
We have jurisdiction to review the BIA’s legal conclusions under NACARA, but
we do not have jurisdiction to review the BIA’s ultimate factual conclusions
regarding eligibility for special rule cancellation of removal. Ixcot v. Holder, 646
F.3d 1202, 1213–14 (9th Cir. 2011).
Substantial evidence supports the BIA’s finding that guerrillas in El
Salvador did not know Lopez’s political opinion or impute a political opinion to
him. Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (“To establish a
nexus to the political opinion ground, the [petitioner] must show (1) that [the
petitioner] had either an affirmative or imputed political opinion, and (2) that [the
petitioner was] targeted on account of that opinion.”). Lopez admitted that the
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guerrillas did not know his political opinion. And the only evidence that the
guerrillas imputed a political opinion to Lopez was the fact that his brother was in
the Salvadoran army and the guerrillas asked about his brother’s location. Those
facts alone do not compel a finding of imputed political opinion. See Garcia-
Milian v. Holder, 755 F.3d 1026, 1032–33 (9th Cir. 2013) (concluding that
substantial evidence supported the BIA’s finding of no imputed political opinion
where the only evidence of imputation was the persecutors’ statement they were
looking for the petitioner’s husband because of the husband’s own political
opinion).
Moreover, substantial evidence supports the BIA’s finding that the guerrillas
did not persecute Lopez “on account of” his own political opinion or one imputed
to him. The guerrillas’ typical threat was “join us or we will kill you.” This
supports the BIA’s finding that the guerrillas threatened Lopez in conjunction with
their attempts to recruit Lopez to their cause, not because Lopez had a particular
political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 481–82 (1992)
(holding that resisting recruitment, without more, did not establish guerrillas
imputed a political opinion to the petitioner).
The BIA correctly found that Lopez’s California conviction for attempted
second-degree robbery was a crime of moral turpitude under 8 U.S.C. §
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1182(a)(2)(A)(i)(I). See Mendoza v. Holder, 623 F.3d 1299, 1303–04 (9th Cir.
2010) (finding as reasonable under Chevron the BIA’s interpretation that
California robbery convictions are crimes involving moral turpitude). The BIA
was also correct that Lopez’s conviction was not a “petty offense” because the
maximum penalty for the conviction was 2.5 years. Cal. Penal Code §§ 213(a)(2),
664(a). That penalty exceeds the one-year ceiling for a conviction to qualify as a
“petty offense.” See 8 U.S.C. § 1182(a)(2)(A)(ii)(II); Mendez-Mendez v. Mukasey,
525 F.3d 828, 832–35 (9th Cir. 2008) (holding that the maximum penalty possible
for a conviction determines whether a conviction is a “petty offense”). Lopez’s
individual sentencing factors are irrelevant to this determination. Mendez-Mendez,
525 F.3d at 833 (“[T]he relevant question is the statutory maximum, not the
maximum sentence that can be imposed on the particular defendant.”). The BIA
therefore correctly raised Lopez’s burden to show an “exceptional and extremely
unusual hardship” to obtain special rule cancellation of removal under NACARA.
See 8 C.F.R. § 1240.66(c).
We do not have jurisdiction to decide whether Lopez established an
“exceptional and extremely unusual hardship” would result from his deportation.
See Ixcot, 646 F.3d at 1213–14.
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Lopez claims that his due process rights were violated because the IJ was
biased. We reject that claim because Lopez was not prevented from reasonably
presenting his case and the BIA reviewed the record independently. See Ibarra-
Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006).
Lopez’s request for remand to the BIA to reinstate the IJ’s grant of voluntary
departure is denied. The BIA revoked the IJ’s grant of voluntary departure because
Lopez did not file proof of his departure bond. Lopez argues that he did not
receive adequate notice of the requirement to file proof of his departure bond. But
the IJ made clear to Lopez that he needed to file proof of his departure bond.
For these reasons, the petition is denied.
DENIED.
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