FILED
NOT FOR PUBLICATION APR 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURORA VIRRUETA-PALIMINOS, No. 13-72099
AKA Aurora Virructa,
Agency No. A091-078-907
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2015**
Pasadena California
Before: SILVERMAN and BEA, Circuit Judges and DONATO,*** District Judge.
Aurora Virrueta-Paliminos, a Mexican citizen and lawful permanent resident
of the United States, petitions for review of the Board of Immigration Appeals’
*
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).
***
The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
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dismissal of her appeal from the Immigration Judge’s denial of her applications for
withholding of removal under the Immigration and Nationality Act and
withholding and deferral of removal under the Convention Against Torture.
Except as noted below, we have jurisdiction pursuant to 8 U.S.C. § 1252. We
DENY IN PART AND DISMISS IN PART.
The BIA applied the correct legal standard – Matter of Y-L-, 23 I. & N. Dec.
270 (A.G. 2002) – to determine that Virrueta-Paliminos’s conviction for violating
California Health and Safety Code § 11351 was a particularly serious crime barring
her applications for withholding of removal. Miguel-Miguel v. Gonzales, 500 F.3d
941, 947-49 (9th Cir. 2007). The BIA’s application of Y-L- complies with
Blandino-Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013), because Y-L- “requires
the agency to conduct a case-by-case analysis,” id. at 1343, of drug trafficking
crimes for which the petitioner was sentenced to less than five years by looking to
whether the individualized circumstances of the crime overcome the strong
presumption that it is particularly serious, see Y-L-, 23 I. & N. Dec. at 276-77.1 It
is irrelevant whether the agency properly found Virrueta-Paliminos’s testimony
regarding her criminal conviction not credible because she admitted through
1
On this basis, the court also DENIES Virrueta-Paliminos’s pending motion
to remand.
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counsel that she had been convicted of violating § 11351 and the BIA’s conclusion
was based on the amount of drugs involved in that crime, a fact Virrueta-Paliminos
never contested. This aspect of the petition is therefore denied.
The court lacks jurisdiction “over the BIA’s ultimate determination that
[Virrueta-Paliminos] committed a ‘particularly serious crime’” because the
quantity of drugs involved was not small. Anaya-Ortiz v. Holder, 594 F.3d 673,
676 (9th Cir. 2010). It also lacks jurisdiction to consider whether Virrueta-
Paliminos demonstrated she is a member of a particular social group and is likely
to be tortured in Mexico because the agency did not reach these issues. I.N.S. v.
Ventura, 537 U.S. 12, 16-17 (2002); Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th
Cir. 2004) (per curiam). These aspects of the petition are dismissed.
The court denies the remainder of Virrueta-Paliminos’s petition for review
because substantial evidence supports the BIA’s determination that she failed to
show the Mexican government would acquiesce in her torture. The country
conditions reports are too general to compel any reasonable factfinder to conclude
anything beyond the fact that some police in some undefined areas of Mexico
would acquiesce in the torture of citizens by drug cartels. They do not compel the
conclusion that a public official would acquiesce in Virrueta-Paliminos’s torture.
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See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010); Almaghzar v.
Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006).
PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.
MOTION TO REMAND DENIED.