Oscar Aguilar-Zamora v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION FEB 13 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

OSCAR SAUL AGUILAR-ZAMORA, No. 09-72865

Petitioner, Agency No. A029-135-696

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 11, 2013 **

Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

Oscar Saul Aguilar-Zamora, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’(“BIA”) order dismissing his appeal

from an immigration judge’s removal order. Our jurisdiction is governed by 8

U.S.C. § 1252. We review for abuse of discretion the agency’s determination that

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
an alien was convicted of a particularly serious crime. Arbid v. Holder, 700 F.3d

379, 383 (9th Cir. 2012). We review de novo questions of law, and review for

substantial evidence the agency’s factual findings. Wakkary v. Holder, 558 F.3d

1049, 1056 (9th Cir. 2009). We deny in part, and dismiss in part the petition for

review.

Aguilar-Zamora conceded that his 1993 conviction for assault with a deadly

weapon under California Penal Code § 245(a)(1), for which he was sentenced to

two years of imprisonment, is an aggravated felony. The agency did not abuse its

discretion in not considering whether Aguilar-Zamora poses a danger to the

community in its determination that his aggravated felony was a particularly

serious crime rendering him ineligible for withholding of removal where the

agency is no longer required to engage in a separate determination of the danger an

alien poses to the community. See 8 C.F.R. § 1208.16(d)(2); Anaya-Ortiz v.

Holder, 594 F.3d 673, 679 (9th Cir. 2010); see also Matter of N-A-M-, 24 I. & N.

Dec. 336, 342 (BIA 2007) (“[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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 Substantial evidence supports the agency’s determination that Aguilar-

Zamora failed to establish that it is more likely than not that he would be tortured if

he returned to El Salvador. See Wakkary, 558 F.3d at 1067-68.

The agency did not err in determining that Aguilar-Zamora is ineligible for

special rule cancellation under section 203 of the Nicaraguan Adjustment and

Central American Relief Act of 1997 (“NACARA”) due to his aggravated felony

conviction. See 8 C.F.R. § 1240.66(a) (aggravated felony bar to special rule

cancellation of removal); Ortiz v. INS, 179 F.3d 1148, 1154 n.7 (9th Cir. 1999)

(relief under NACARA is unavailable to those who have been convicted of an

aggravated felony).

We lack jurisdiction to review the agency’s determination that Aguilar-

Zamora did not merit voluntary departure as a matter of discretion. See 8 U.S.C.

§ 1252(a)(2)(B)(i); Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011).

Aguilar-Zamora’s contention that the BIA’s streamlined decision failed to

provide a reasoned basis for its conclusions is belied by the record.

Aguilar-Zamora’s August 2, 2010, motion to supplement the record is

granted.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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