FILED
NOT FOR PUBLICATION NOV 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSENDO ESCARPITA-CABRERA, No. 14-72095
Petitioner, Agency No. A095-271-224
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Rosendo Escarpita-Cabrera, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s denial of his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law, and we review for substantial evidence the agency’s factual
findings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We
grant in part, deny in part, and dismiss in part the petition for review, and remand.
The agency determined that Escarpita-Cabrera’s theft conviction under
California Penal Code § 487(c) was an aggravated felony theft offense under 8
U.S.C. § 1101(a)(43)(G) that rendered him statutorily ineligible for asylum. At the
time it decided this case, the agency did not have the benefit of this court’s
decision in Lopez-Valencia v. Lynch, 798 F.3d 863, 871 (9th Cir. 2015),
concluding that “California’s theft statute is both overbroad and indivisible . . . and
a conviction under it can never be a ‘theft offense’ as defined in 8 U.S.C.
§ 1101(a)(43)(G).” We therefore grant in part his motions to remand, and remand
for the BIA to consider whether Escarpita-Cabrera is eligible for asylum.
Substantial evidence supports the agency’s denial of withholding of
removal, where Escarpita-Cabrera failed to establish past persecution, see Lim v.
INS, 224 F.3d 929, 936 (9th Cir. 2000) (“Threats standing alone . . . constitute past
persecution in only a small category of cases, and only when the threats are so
menacing as to cause significant actual suffering or harm.” (internal quotation
marks and citation omitted)), or that it is more likely than not he will be persecuted
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in Mexico by his father or drug cartel members, see Nagoulko v. INS, 333 F.3d
1012, 1018 (9th Cir. 2003) (fear of future harm too speculative), or that Escarpita-
Cabrera could not reasonably relocate within Mexico, see 8 C.F.R.
§ 1208.16(b)(3).
Substantial evidence also supports the agency’s denial of Escarpita-
Cabrera’s CAT claim because he failed to establish that it is more likely than not
he would be tortured by or with the consent or acquiescence of the government if
returned to Mexico. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
Substantial evidence supports the agency’s determination that Escarpita-
Cabrera had not satisfied his burden of proving by clear and convincing evidence
that he is present in the United States pursuant to a prior lawful admission. See 8
U.S.C. § 1229a(c)(2)(B).
We need not reach Escarpita-Cabrera’s contentions in his motion to remand
regarding the reduction in his sentence for his theft conviction.
Escarpita-Cabrera’s challenge to his continued detention is not properly
before us. See Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (noting
entitlement to bond hearing for certain aliens held in custody and setting forth
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procedure for challenging bond determinations).
Each party shall bear its own costs for this petition for review.
PETITION GRANTED in part; DENIED in part; DISMISSED in part;
REMANDED.
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