FILED
NOT FOR PUBLICATION JUN 12 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS RICO-BALLESTEROS, No. 13-74196
Petitioner, Agency No. A045-569-895
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2015**
San Francisco, California
Before: SCHROEDER, D.W. NELSON, and CHRISTEN, Circuit Judges.
Jose Luis Rico-Ballesteros (“Rico-Ballesteros”) petitions this court for
review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from
*
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 Immigration Judge’s (“IJ”) order of removal. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition.
First, the BIA did not err in concluding that Rico-Ballesteros was removable
for having been convicted of an aggravated felony under the Immigration and
Nationality Act (“INA”), see 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction
for receipt of stolen property in violation of Cal. Penal Code § 496(a). We have
previously held violation of Cal. Penal Code § 496(a) is categorically a “theft
offense” and, thus, an aggravated felony under the INA. Verdugo-Gonzalez v.
Holder, 581 F.3d 1059, 1062 (9th Cir. 2009); see 8 U.S.C. § 1101(a)(43)(G).
Rico-Ballesteros argues that Verdugo-Gonzalez was abrogated by the Supreme
Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013). We
conclude, however, that Verdugo-Gonzalez and Descamps are not “clearly
irreconcilable,” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc),
thus we are bound by our precedent to conclude that Rico-Ballesteros is removable
for having committed an aggravated felony.1 Additionally, because we hold
Verdugo-Gonzalez is controlling, we find no merit to Rico-Ballesteros’s contention
1
Rico-Ballesteros also argues the BIA erred by finding him removable for
having committed a controlled substance offense. See 8 U.S.C. § 1227(a)(2)(B)(i).
The government has not pursued this argument on appeal, and we need not reach it
as we find him removable on another ground.
2
that his case should be remanded to the BIA because the BIA arguably
misconstrued his argument on this issue.
Second, substantial evidence supports the BIA’s finding that Rico-
Ballesteros was not entitled to relief pursuant to the Convention Against Torture
(“CAT”). We note that, at first glance, both the IJ and the BIA appear to have
applied the incorrect standard with regards to internal relocation by finding that
Rico-Ballesteros “ha[d] not demonstrated that ‘internal relocation’ is impossible.”
See Maldonado v. Lynch, No. 09-71491, ---F.3d----, 2015 WL 2343051, at *6 (9th
Cir. May 18, 2015) (en banc) (holding that a petitioner need not show that
“relocation is impossible” in order to establish eligibility for CAT relief).
However, upon closer review of the IJ’s and BIA’s decisions, internal relocation
was properly considered as only one factor in their respective determinations, thus
Rico-Ballesteros was not improperly required to show that relocation is impossible
in order to establish his eligibility for CAT relief. Cf. id. at *7 (“The BIA’s
conclusion demonstrates that failure to [show that relocation was impossible] was
the determinative blow to Maldonado’s petition.”). Although there is evidence in
the record to support Rico-Ballesteros’s position, there is also substantial evidence
to support the BIA’s determination, thus the court must uphold the agency’s
determination. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). We find
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particularly salient the BIA’s finding, supported by the record, that Rico-
Ballesteros has a “similarly-situated” brother who continues to reside in the
vicinity of their home in Mexico and has not faced harm or threats from cartel
members or the police. See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001),
superseded by statute on other grounds. Accordingly, we conclude the record
does not compel the conclusion that Rico-Ballesteros will more likely than not be
tortured if he returns to Mexico.2 See Garcia-Milian v. Holder, 755 F.3d 1026,
1031 (9th Cir. 2013).
Finally, we reject Rico-Ballesteros’s argument that the BIA improperly
ignored a letter3 that he submitted from an expert witness. As the government
correctly notes, a petitioner must show that there are “clear indications” that the
agency did not consider the documentary evidence in question. Garcia v. Holder,
749 F.3d 785, 791–92 (9th Cir. 2014). The letter was premised on Rico-
2
Because we hold the record does not compel the conclusion that “more
likely than not [Rico-Ballesteros] will be tortured upon return to his homeland,” we
need not decide whether there would be “sufficient state action involved in that
torture.” Konou v. Holder, 750 F.3d 1120, 1124–26 (9th Cir. 2014) (citation
omitted). Additionally, we do not reach Rico-Ballesteros’s argument that the BIA
improperly ignored his reliance on Cordoba v. Holder, 726 F.3d 1106, 1117 (9th
Cir. 2013), as it solely concerns government acquiescence.
3
Although Rico-Ballesteros refers to the document as an “affidavit,” it is an
unsigned, unsworn statement and, thus, is properly considered a “letter.” Aden v.
Holder, 589 F.3d 1040, 1043 (9th Cir. 2009).
4
Ballesteros being targeted by the cartel, the police or both upon his return to
Mexico, which was not a finding made by the IJ or the BIA. Thus, the fact that
neither the IJ nor the BIA explicitly discussed the letter is not a clear indication
that they did not consider the letter. Cf. Cole v. Holder, 659 F.3d 762, 771 (9th
Cir. 2011) (explaining that the BIA is not required to “discuss each piece of
evidence submitted”).
PETITION FOR REVIEW DENIED.
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