NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSUE PEREZ-REBOLLAR, No. 13-74211
Petitioner, Agency No. A205-920-543
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 17, 2017**
San Francisco, California
Before: WARDLAW and GOULD, Circuit Judges, and SHEA,*** District Judge.
Josue Perez-Rebollar, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision affirming the immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Edward F. Shea, Senior United States District Judge
for the Eastern District of Washington, sitting by designation.
judge’s (“IJ”) denial of his applications for withholding of removal and protection
under the Convention Against Torture (“CAT”). Because the BIA adopted the IJ’s
decision but also put forth its own reasoning, we review both decisions. See
Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014). We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.
1. Substantial evidence supports the IJ’s adverse credibility determination,
which the BIA affirmed. Under the REAL ID Act credibility standards, the IJ was
required to assess Perez’s credibility by looking at the totality of the circumstances.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Shrestha v. Holder, 590 F.3d 1034, 1039–40
(9th Cir. 2010). These include, among other things, the “consistency” and
“inherent plausibility” of his testimony. Shrestha, 590 F.3d at 1040. The IJ was
required to support his adverse credibility finding by pointing to “specific instances
in the record.” Id. at 1042.
The IJ properly relied on and cited three inconsistences in Perez’s testimony,
as well as an implausible statement, to explain why he found Perez’s testimony
about his 2013 conviction not credible. Perez gave conflicting answers as to
whether he lived in the apartment where police found drugs and firearms at the
time of his arrest. Despite giving police the names of two people living in that
apartment, he claimed during his hearing not to know the names of anyone who
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lived there. Moreover, though Perez initially claimed during his hearing not to
know the names of the drugs he sold, he later acknowledged that he had sold
marijuana, crack cocaine, cocaine, and heroin. Further, the IJ noted that Perez
testified, implausibly, that he had not purchased the drugs he sold but received
them for free. However, even if Perez had been deemed credible, that
determination would not have altered the IJ’s conclusion that his conviction was
particularly serious.
2. The agency did not abuse its discretion by concluding that Perez’s
conviction was particularly serious. The agency properly found that “the nature of
the conviction, the underlying facts and circumstances[,] and the sentence imposed
justif[ied] the presumption that [Perez was] a danger to the community.” Delgado
v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc).
The agency concluded that Perez’s conviction was particularly serious
because the police report from his arrest indicated that he was “seen selling drugs
in an apartment parking lot”; “admitted to the police that he had been selling crack
cocaine, cocaine base, heroin, and marijuana”; “admitted making 28 sales, earning
$100-150 per day, over the course of 3 weeks”; and “admitted living in apartment
38 for 3 weeks with 2 others, where heroin, methamphetamine, crack cocaine,
marijuana, scales, packing materials, and 10 firearms were found.”
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The agency’s findings were proper. See Perez-Palafox v. Holder, 744 F.3d
1138, 1143 (9th Cir. 2014) (describing the BIA’s determination that a conviction
for transportation of methamphetamine was particularly serious); Ramirez-Ramos
v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987) (“There is no question that this circuit
has ratified the BIA’s consistent view that convictions for drug possession and
trafficking are particularly serious . . . .”). Though Perez contends that the
seriousness of his conviction was diminished by his lenient sentence and the fact
that he sold drugs to help his mother, the BIA has established that such
circumstances are accorded little and no weight, respectively. See In re N–A–M–,
24 I. & N. Dec. 336, 343 (BIA 2007) (explaining that the “sentence imposed is not
a dominant factor” in determining whether a conviction was particularly serious);
Matter of G–G–S–, 26 I. & N. Dec. 339, 343 (BIA 2014) (noting that the
determination of seriousness “does not involve an examination of an alien’s
personal circumstances and equities, such as family or community ties”).
3. Substantial evidence supports the agency’s denial of deferral of removal
under CAT. To receive CAT protection, Perez bore the burden of proving that it
was “more likely than not that he . . . would be tortured if removed” to Mexico.
Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005) (alteration in original)
(quoting Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001)). Though “country
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conditions alone can play a decisive role” in granting CAT relief, Kamalthas v.
INS, 251 F.3d 1279, 1280 (9th Cir. 2001), Perez needed to show that the conditions
were such that torture was likely under the “specific circumstances” of his case, Go
v. Holder, 640 F.3d 1047, 1054 (9th Cir. 2011) (emphasis in original).
The country condition reports in the record did not support a likelihood of
future torture. Though they showed violence related to drug trafficking in Mexico,
they did not show that Perez was specifically at risk. His contention that drug
cartels or criminal gangs would target him because he previously lived in the
United States, and thus would be perceived as wealthy, was unsupported. In
addition, that argument was contradicted by the fact that his family in Mexico has
not been harmed despite it being known that they are related to persons in the
United States.
PETITION FOR REVIEW DENIED.
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