NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO GALEANA, AKA Francisco No. 18-71900
Galenana, AKA Francisco Galerna,
Agency No. A208-836-693
Petitioner,
v. MEMORANDUM*
JEFFREY A. ROSEN, Acting Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2020**
Pasadena, California
Before: THOMAS, Chief Judge, O'SCANNLAIN, Circuit Judge, and EZRA,***
District Judge.
Petitioner Francisco Galeana (“Petitioner”) is a native and citizen of Mexico.
*
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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
He petitions for review of an order of the Board of Immigration Appeals (“BIA”)
dismissing his appeal from the decision of an Immigration Judge (“IJ”) denying his
application for withholding or deferral of removal pursuant to the Immigration and
Nationality Act (“INA”) and related relief under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition
for review. Because the parties are familiar with the facts and history of this
matter, we need not recount them here.
The BIA did not abuse its discretion in determining that Petitioner’s
particular conviction for second degree robbery in violation of California Penal
Code § 211/212.5 constitutes a particularly serious crime (“PSC”). A PSC is a
crime which “justif[ies] the presumption that the convicted immigrant is a danger
to the community.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir.
2015) (quoting Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011)). Upon
consideration of “(1) the nature of the conviction, (2) the type of sentence imposed,
and (3) the circumstances and underlying facts of the conviction,” the BIA
appropriately determined that Petitioner failed to demonstrate that the offense is
not particularly serious. Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (internal
quotation marks and citations omitted).
“[T]he proper focus for determining whether a crime is particularly serious
is on the nature of the crime and not the likelihood of future serious misconduct.”
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Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir. 2013), abrogated on other
grounds as recognized in Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018).
“[O]nce an individual is found to have been convicted for committing a
particularly serious crime . . . the individual is irrebuttably presumed to be a
danger.” Gomez-Sanchez v. Sessions, 892 F.3d 985, 991 (9th Cir. 2018).
Like the IJ, the BIA did not disregard Petitioner’s credible testimony but
rather found that testimony insufficient to prove the crime is not particularly
serious. Cf. Avendano-Hernandez, 800 F.3d at 1076–78 (noting the BIA found
applicant’s evidence insufficient to reduce the seriousness of her crime, not that the
BIA mischaracterized the facts and circumstances). We cannot “reweigh the
evidence” to reach a different conclusion about the seriousness of Petitioner’s
crime. Id. at 1076.
The BIA’s consideration of Petitioner’s mental illness is also consistent with
the Ninth Circuit’s recent decision in Gomez-Sanchez, 892 F.3d 985. Under
Gomez-Sanchez, the BIA cannot treat evidence of mental health as “categorically
irrelevant” to a PSC determination when the petitioner “claim[s] that his violent act
was a result of his mental illness.” Id. at 989, 996. Petitioner, however, presented
no evidence directly attributing the robbery to his bipolar disorder.
Gomez-Sanchez is, therefore, inapplicable. Having committed a particularly
serious crime, Petitioner was properly deemed ineligible for withholding of
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removal under the INA. 8 U.S.C. § 1231(b)(3)(B)(ii).
Additionally, substantial evidence supports the BIA’s determination that
Petitioner failed to establish a clear probability that he would be subject to torture
in a mental institution if removed to Mexico as required for a deferral of removal
under the CAT. 8 C.F.R. § 1208.17(d)(3). “‘[T]o constitute torture, an act must be
specifically intended to inflict severe physical or mental pain or suffering.’”
Villegas v. Mukasey, 523 F.3d 984, 988 (9th Cir. 2008) (quoting 8 C.F.R.
§ 1208.18(a)(5)) (emphasis in case but not regulation). Petitioner’s theory of
events that may lead to mistreatment in a Mexican mental institution did not
demonstrate that he would likely be “subject to a particularized threat of torture.”
Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th Cir. 2008) (emphasis in original)
(internal quotation marks and citations omitted). No “reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Likewise, substantial evidence supports the BIA’s conclusion that Petitioner
did not establish a clear probability that he would be identified as a gang member
by his tattoos and tortured with the acquiescence of a Mexican government official
on that basis. The BIA properly concluded that Petitioner’s lengthy chain of
hypothetical events was too speculative to demonstrate a clear probability of
torture with governmental acquiescence. See Medina-Rodriguez v. Barr, 979 F.3d
738, 750–51 (9th Cir. 2020).
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PETITION DENIED.
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