FILED
NOT FOR PUBLICATION
NOV 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS GARCIA, Juan Carlos No. 15-73170
Carrillo-Tecun,
Agency No. A078-739-040
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 8, 2016**
Portland, Oregon
Before: McKEOWN, W. FLETCHER and FISHER, Circuit Judges.
Juan Carlos Garcia petitions for review of the Board of Immigration
Appeals’ (BIA) dismissal of his appeal of an Immigration Judge’s (IJ) decision
finding him ineligible for asylum, withholding of removal and withholding under
the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
*
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).
§ 1252(a)(2)(D) to review constitutional claims and questions of law, and we deny
the petition.
1. Garcia’s conviction for delivery of methamphetamine under Oregon
Revised Statutes (ORS) § 475.992 constitutes an aggravated felony, making him
ineligible for asylum. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). An aggravated
felony includes a felony controlled substance offense under the federal Controlled
Substances Act (CSA). See id. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). Although
ORS § 475.992 defines certain crimes that would not be considered felonies under
the CSA – such as simple possession – the statute is divisible as between
possession and delivery of methamphetamine because it provides different
punishments for each. See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016).
Delivery of methamphetamine is a felony under the CSA, and Garcia does not
argue Oregon defines delivery more broadly than its federal counterpart. Compare
ORS § 475.992(1)(b), with 21 U.S.C. § 841(a)(1), (b)(1)(C). Under the modified
categorical approach, therefore, Garcia’s conviction for delivery of
methamphetamine under Oregon law qualifies as an aggravated felony.
2. The BIA and the IJ, moreover, did not abuse their discretion in
concluding Garcia was convicted of a particularly serious crime, making him
ineligible for statutory withholding and withholding under the CAT. See Arbid v.
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Holder, 700 F.3d 379, 385 (9th Cir. 2012). Garcia’s aggravated felony conviction
for delivery of methamphetamine presumptively constitutes a particularly serious
crime. See In re Y-L-, 23 I. & N. Dec. 270, 274 (A.G. 2002). Only in a “very rare
case” under “extraordinary and compelling circumstances,” can this presumption
be rebutted. Id. at 276-77. The IJ and the BIA applied the correct legal standard
and sufficiently explained why no extraordinary and compelling circumstances
rebut the presumption here. See Avendano-Hernandez v. Lynch, 800 F.3d 1072,
1077 (9th Cir. 2015); Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en
banc). We do not “reweigh the evidence” to make our own determination whether
the crime was particularly serious. Avendano-Hernandez, 800 F.3d at 1077.
Accordingly, Garcia is ineligible for withholding of removal and withholding
under the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).
PETITION DENIED.
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