NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISIDRO SUAREZ GARCIA, No. 17-72866
Petitioner, Agency No. A200-251-673
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2020**
Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.
Isidro Suarez Garcia, 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 his application for withholding of
removal and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the agency’s
*
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).
particularly serious crime determination and denial of a motion to remand. Konou
v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014); Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005). We review for substantial evidence the denial of relief
under CAT. Konou, 750, F.3d at 1124. We review de novo questions of law,
including claims of due process violations. Padilla-Martinez v. Holder, 770 F.3d
825, 830 (9th Cir. 2014).
Suarez Garcia’s contention that the “particularly serious crime” provision of
the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii), is
unconstitutionally vague on its face is foreclosed by Guerrero v. Whitaker, 908
F.3d 541, 545 (9th Cir. 2018) (statutory phrase “particularly serious crime” is not
unconstitutionally vague).
The agency did not abuse its discretion in determining that Suarez Garcia’s
California Health and Safety Code § 11351.5 conviction is a particularly serious
crime that bars him from withholding of removal. The agency correctly
determined that drug trafficking crimes are presumed to be particularly serious and
relied on the appropriate factors and proper evidence in concluding Suarez Garcia
failed to rebut that presumption. See 8 U.S.C. § 1231(b)(3)(B)(ii) (an applicant
convicted of a particularly serious crime is ineligible for withholding of removal);
Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012) (no abuse of discretion in a
particularly serious crime determination where the agency reviewed the conviction
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and related records); see also Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th
Cir. 2007) (recognizing the “strong presumption” that drug trafficking offenses are
particularly serious).
Substantial evidence supports the agency’s denial of CAT relief because
Suarez Garcia failed to show it is more likely than not he will be tortured by or
with the consent or acquiescence of the government if returned to Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Zheng v. Holder, 644 F.3d
829, 835-36 (9th Cir. 2011) (claims of possible torture were speculative).
The BIA did not abuse its discretion in declining to remand for the IJ to
consider newly introduced evidence, where Suarez Garcia failed to show that the
evidence is material to his case or that it was previously undiscoverable.
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (no abuse of discretion in
denial of motion to reopen where petitioner failed to introduce previously
unavailable, material evidence). To the extent he contends the BIA violated due
process in declining to consider the evidence, Suarez Garcia has not established
prejudice from any alleged violation. Pagayon v. Holder, 675 F.3d 1182, 1191-92
(9th Cir. 2011) (no due process violation where petitioner could not show prejudice
from the agency’s rejection of corroborating evidence).
PETITION FOR REVIEW DENIED.
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