FILED
NOT FOR PUBLICATION
MAY 28 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVANGELINA PALOMINO- No. 16-73728
ESPINOZA,
Agency No. A090-217-004
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2019**
San Francisco, California
Before: IKUTA and CHRISTEN, Circuit Judges, and MORRIS,*** District Judge.
Petitioner Evangelina Palomino-Espinoza seeks review of the Board of
Immigration Appeals’s (BIA) denial of her applications for withholding of removal
*
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 Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
and for protection under the Convention Against Torture (CAT). Because the
parties are familiar with the facts, we do not recite them here.
Jurisdiction is proper pursuant to 8 U.S.C. § 1252. We review for abuse of
discretion the conclusion that an offense constitutes a particularly serious crime,
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015), and we
review the agency’s denial of CAT relief for substantial evidence. Ai Jun Zhi v.
Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). We deny the petition for review.
1. The Agency Did Not Abuse Its Discretion in Making Its Particularly
Serious Crime Determination. Palomino-Espinoza’s concessions in a 1990 pre-
sentence report (PSR) detailed her role in a conspiracy to distribute narcotics. She
argues that the agency abused its discretion by affording greater weight to the PSR
than it afforded to her 2014 testimony in immigration court about her role in the
conspiracy. Because “all reliable information may be considered in making a
particularly serious crime determination, including the conviction records and
sentencing information,” Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir.
2010) (internal quotation marks omitted), the agency did not abuse its discretion by
relying on the concessions included in the PSR.
Palomino-Espinoza also argues that the agency erred in its particularly
serious crime determination by failing to address each factor set forth in Matter of
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Frentescu, 18 I & N Dec. 244 (BIA 1982). Our review of a particularly serious
crime determination “is limited to ensuring that the agency relied on the
appropriate factors and proper evidence[.]” Avendano-Hernandez, 800 F.3d at
1077 (internal quotation marks and brackets omitted). Frentescu requires that the
agency consider the nature of the conviction, the circumstances and underlying
facts of the conviction, and the type of sentence imposed. Anaya-Ortiz, 594 F.3d at
679. In this case, the Immigration Judge considered “all factors” enumerated in
Frentescu and adequately explained the determination that Palomino-Espinoza had
been convicted of a particularly serious crime. The BIA adopted and affirmed the
Immigration Judge’s decision. Because the agency correctly indicated that it was
relying on the appropriate Frentescu factors, the agency did not abuse its discretion
in determining that Palomino-Espinoza had been convicted of a particularly serious
crime.
2. Substantial Evidence Supports the Agency’s Denial of CAT
Protection. The agency did not err by concluding that Palomino-Espinoza failed to
demonstrate eligibility for deferral of removal under the CAT. To qualify for CAT
relief, a petitioner must establish that “‘it is more likely than not that he or she
would be tortured if removed to the proposed country of removal.’” Garcia-
Milian, v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R.
3
§ 208.16(c)(2)). The torture must be “inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official
capacity.” Id. (internal quotation marks omitted). The record shows that the
Mexican government has taken steps to combat violence against women. “Even
though, as a practical matter, these steps have not achieved the desired goals of
resolving crimes and protecting citizens, they support the [agency’s] determination
that the government is not wilfully blind to attacks on women[.]” Id. at 1035.
Accordingly, even assuming that Palomino-Espinoza has demonstrated it is more
likely than not that she will be tortured if removed to Mexico, the record does not
compel the conclusion that the Mexican government will acquiesce in her torture.
PETITION FOR REVIEW DENIED.
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