NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAN E. GUZMAN, No. 18-72832
Petitioner, Agency No. A076-871-564
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2020**
Seattle, Washington
Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,*** District
Judge.
Adan E. Guzman, the petitioner, is a native of El Salvador who became a
Lawful Permanent Resident in the United States in 1999. He petitions for review
*
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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
of the Board of Immigration Appeals (BIA) denial of asylum, withholding of
removal, and deferral under the Convention Against Torture (CAT). Guzman
argues: (1) the IJ and BIA erred when they allowed the DHS to lodge additional
charges of removability because it violated collateral estoppel; (2) the IJ and BIA
erred by determining that Guzman’s conviction of the Washington State felony
harassment statute constituted a crime of violence and thus an aggravated felony;
and (3) the IJ and BIA erred by finding that Guzman did not show it was more
likely than not that he would be tortured if removed to El Salvador. We have
jurisdiction under 8 U.S.C. § 1252, and deny the petition.1
We review questions of law de novo and factual findings for substantial
evidence. Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). For a petitioner to
prevail under the substantial evidence standard, the petitioner must show that the
evidence compels the conclusion that these findings are erroneous. Id.
Guzman committed multiple crimes during his time in the United States, and
was originally found removable for committing an aggravated felony in relation to
a second-degree assault conviction in 2008. Intervening case law from this Court
rendered that conviction no longer an aggravated felony, United States v.
Robinson, 869 F.3d 933 (9th Cir. 2017), and the Department of Homeland Security
1
Because the parties are familiar with the facts, we do not discuss them at
length here.
2
(DHS) lodged additional charges of removability against Guzman based on a
felony harassment conviction under RCW 9A.46.020(2)(b)(ii). Guzman applied
for asylum, withholding of removal, and withholding and deferral of removal
under CAT.
The Immigration Judge (IJ) first found that the DHS was not barred from
lodging additional charges of removability following remand from the Ninth
Circuit. Second, relying on U.S. v. Werle, 877 F.3d 879 (9th Cir. 2017), the IJ
determined that Guzman’s felony harassment conviction constituted a “crime of
violence” and thus an aggravated felony. The IJ also found that Guzman had not
shown it was more likely than not that he would be tortured if removed, and that he
could relocate within El Salvador. The BIA affirmed the IJ’s decision.
1. The DHS was not barred from lodging additional charges of removability
following the remand from this Court. 8 C.F.R. § 1003.30 provides that the DHS
may bring additional charges of removal “[a]t any time” during removal
proceedings. There was no final judgment barring relitigation. Therefore, Guzman
has not shown that the DHS was barred from lodging additional claims. See
Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1324 (9th Cir. 2006).
2. Guzman has not shown that the BIA erred in holding that a felony
harassment conviction under RCW 9A.46.020(2)(b)(ii) constitutes a crime of
violence and is thus an aggravated felony. In U.S. v. Werle, 877 F.3d 879 (9th Cir.
3
2017), we held that a conviction of felony harassment under the specified code
subsection constitutes a crime of violence under the federal sentencing guidelines.
Id. at 884. The language in the federal sentencing guidelines describing a crime of
violence is identical to the definition of a crime of a violence in the immigration
context. Compare 18 U.S.C. § 16(a) with FSG § 4B1.2. We see no reason to
interpret these identical phrases differently just because the underlying proceedings
here are immigration as opposed to sentencing guidelines. See Werle, 877 F.3d at
884 n.2 (“While § 16(a) includes threats of physical force to property, its language
is otherwise ‘identical in all material respects’ to § 4B1.2(a)(1).”). Thus, the BIA
did not err in relying on Werle in determining that Guzman’s felony harassment
conviction was for a crime of violence, rendering Guzman removable. 8 U.S.C. §
1227(a)(2)(A)(iii).
3. Guzman has not shown that he is more likely than not to be persecuted or
tortured if removed to El Salvador. 8 C.F.R. § 1208.16(c)(2). Guzman has not
countered evidence in the record indicating that he can safely relocate within El
Salvador. See Maldonado v. Lynch, 786 F.3d 1155, 1163-64 (9th Cir. 2015).
Guzman has not shown it is more likely than not he would be tortured if removed
to El Salvador. Accordingly, he does not qualify for deferral of removal under the
Convention Against Torture.
Guzman’s petition is DENIED.
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