NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR LEOBARDO AVILA, No. 21-1138
Agency No. A092-463-824
Petitioner,
v.
MEMORANDUM*
MERRICK B. GARLAND, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.
Hector Leobardo Avila, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We 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).
de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th
Cir. 2005). We review for substantial evidence the agency’s factual findings.
Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny in part
and dismiss in part the petition for review.
The BIA did not err in concluding that Avila’s aggravated felony
conviction in violation of California Penal Code § 211 and resulting five-year
sentence constitutes a particularly serious crime rendering him ineligible for
asylum and withholding of removal. See 8 U.S.C. §§ 1101(a)(43)(G),
1158(b)(2)(A)(ii), 1158(b)(2)(B)(i), 1231(b)(3)(B); United States v. Martinez-
Hernandez, 932 F.3d 1198, 1206-07 (9th Cir. 2019) (conviction under
California Penal Code § 211 is categorically an aggravated felony theft offense).
Thus, Avila’s asylum and withholding of removal claims fail.
Substantial evidence supports the denial of CAT deferral of removal
because Avila failed to show it is more likely than not he would 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).
To the extent Avila contends his counsel’s performance was ineffective
before the IJ, we lack jurisdiction to consider the issue because he failed to raise
it in his brief before the BIA. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644
(9th Cir. 2012) (court lacks jurisdiction to consider unexhausted claims that
could have been corrected by the BIA, including ineffective assistance of
counsel); see also Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en
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banc) (when a petitioner files a brief before the BIA, he is deemed to have
exhausted only the issues raised and argued in that brief).
To the extent Avila contends the BIA violated his right to due process by
failing to send him a copy of the IJ decision, he failed to show prejudice. See
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice
to prevail on a due process claim).
The stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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