NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR SANCHEZ-REYES, AKA Oscar No. 15-73247
Corral Reyes,
Agency No. A205-721-332
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Oscar Sanchez-Reyes, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying asylum, withholding of removal, and
*
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).
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
continuance and review de novo questions of law. Ahmed v. Holder, 569 F.3d
1009, 1012 (9th Cir. 2009). We review for abuse of discretion the agency’s
particularly serious crime determination and review for substantial evidence the
denial of CAT relief. Konou v. Holder, 750 F.3d 1120, 1124, 1127 (9th Cir. 2014).
We deny the petition for review.
The agency did not err in declining to discuss all of the factors when
determining Sanchez-Reyes had not rebutted the presumption that his conviction
was a particularly serious crime, where Matter of Y-L- mandates that each of six
factors be met before any further analysis is conducted. See 23 I. & N. Dec. 270,
276-77 (“[o]nly if all of these criteria were demonstrated by an alien would it be
appropriate to consider whether other, more unusual circumstances . . . might
justify departure from the default interpretation” (emphasis in original)). To the
extent Sanchez-Reyes challenges the agency’s determination that his conviction
under California Health and Safety Code § 11352(a) is a particularly serious crime,
we cannot consider his contentions, where the agency cited to and applied the
correct standard to the proper evidence. See Avendano-Hernandez v. Lynch, 800
F.3d 1072, 1077 (9th Cir. 2015) (court’s review is limited to whether the agency
relied on the appropriate factors and proper evidence; the court may not reweigh
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the evidence and reach its own determination). Accordingly, the agency did not err
in denying Sanchez-Reyes’ applications for asylum and withholding of removal.
See 8 U.S.C. §1158(b)(2)(A)(ii) (asylum is not available to aliens who have been
convicted of a particularly serious crime); 8 U.S.C. § 1231(b)(3)(B)(ii) (same for
withholding of removal).
Because the particularly serious crime determination is dispositive, we need
not reach Sanchez-Reyes’ contentions regarding his membership in a particular
social group. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
Substantial evidence supports the agency’s denial of CAT relief, where
Sanchez-Reyes failed to demonstrate it is more likely than not that he would be
tortured upon returning to Mexico by or with the acquiescence of the Mexican
government. See 8 C.F.R. § 1208.16(c)(2); Delgado-Ortiz v. Holder, 600 F.3d
1148, 1152 (9th Cir. 2010) (alien has the burden to establish it is more likely than
not he would be tortured if removed).
The agency did not err or abuse its discretion in denying Sanchez-Reyes’
request for a third continuance to seek post-conviction relief in state court and for
his wife to pursue a U Visa, where success on either of those outside proceedings
was speculative. See Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (IJ not
required to grant a continuance based on speculation); see also Matter of Sanchez
Sosa, 25 I. & N. Dec. 807, 812-13 (BIA 2012) (discussing factors in determining
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whether to grant a continuance that relate particularly to a U visa, including
likelihood of success).
Under the circumstances in this case, the BIA did not err in declining to
address Sanchez-Reyes’ contentions regarding voluntary departure, where the
record does not show he sought this relief.
PETITION FOR REVIEW DENIED.
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