NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLON ANTONIO RAMOS, No. 20-70594
Petitioner, Agency No. A095-074-538
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 5, 2021**
Pasadena, California
Before: KLEINFELD, WARDLAW, and GOULD, Circuit Judges.
Marlon Antonio Ramos (“Ramos”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of his appeal from the Immigration Judge’s
(“IJ”) denial of his applications for withholding of removal and CAT protection.
Because the parties are familiar with the facts and procedural history of the case, we
*
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).
do not recite them here. We dismiss in part and deny in part the petition.
First, because Ramos was convicted of violating 21 U.S.C. § 846, Ramos’s
conviction is an aggravated felony drug trafficking crime. Moncrieffe v. Holder, 569
U.S. 184, 188 (2013) (a conviction under the Controlled Substances Act that is
punishable by more than one year imprisonment is an aggravated felony for
immigration purposes). We therefore have jurisdiction to consider only questions
of law and constitutional claims. 8 U.S.C. § 1252(a)(2)(D); Guerrero-Lasprilla v.
Barr, 140 S. Ct. 1062, 1067 (2020). We lack jurisdiction to review the agency’s
particularly serious crime determination, because Ramos was convicted of an
aggravated felony drug trafficking offense, and he does not raise a colorable legal or
constitutional claim. For this reason, we dismiss the petition for review with respect
to statutory withholding of removal for lack of jurisdiction.
Second, we have jurisdiction to review Ramos’s petition as to CAT
withholding. However, the BIA properly exercised its discretion in concluding that
Ramos did not rebut the presumption that his conviction for conspiracy to distribute
cocaine, in violation of 21 U.S.C. § 846, was a particularly serious crime, precluding
withholding relief. We can review the determination that Ramos was convicted of
a particularly serious crime barring him from withholding of removal pursuant to
CAT, because the agency’s denial of CAT protection is not a part of Ramos’s final
order of removal. See Nasrallah v. Barr, 140 S. Ct. 1683, 1694 (2020). When
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reviewing the agency’s denial of withholding of removal under the CAT, we have
jurisdiction to review the agency’s discretionary determination that Ramos did not
rebut the presumption that his aggravated felony drug offense was a particularly
serious crime. See id.; Matter of Y-L-, 23 I. & N. Dec. 270, 276–77 (A.G. 2002).
In Matter of Y-L-, the Attorney General decided that the presumption could
only be rebutted if the applicant met six required factors. 23 I. & N. Dec. at 276–
77. The agency reasonably concluded four of the factors weigh against finding that
Ramos rebutted the presumption that his drug trafficking conviction was particularly
serious. But Matter of Y-L- requires Ramos to show these four factors to rebut the
presumption, and he has to show the agency abused its discretion regarding each
factor. Id. He has not done so, and so we deny the petition for review as to Ramos’s
application for withholding of removal under CAT.
Third, substantial evidence supports the BIA’s determination that Ramos did
not establish a clear probability of torture by or with the acquiescence or willful
blindness of a government official. Although Ramos was convicted of an aggravated
felony and a particularly serious crime, he remains eligible for deferral of removal
under CAT. 8 C.F.R. § 1208.17(a). But Ramos has not shown that the record
compels the conclusion he will likely be tortured based on his father’s military
service more than thirty years ago, his conviction and tattoo, his religion, or through
the instigation of his co-conspirators.
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DISMISSED IN PART AND DENIED IN PART.
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