Paulo Valdez-Lopez v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
APR 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULO CESAR VALDEZ-LOPEZ, No. 14-70894

Petitioner, Agency No. A077-148-764

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

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

Submitted April 17, 2017**
San Francisco, California

Before: D.W. NELSON and IKUTA, Circuit Judges, and SEABRIGHT,*** Chief
District Judge.

Paulo Cesar Valdez-Lopez (“Valdez-Lopez”), a native and citizen of

Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable J. Michael Seabright, United States Chief District
Judge for the District of Hawaii, sitting by designation.
dismissing his appeal from an immigration judge’s (“IJ”) decision (1) denying his

application for withholding of removal, and protection under the Convention

Against Torture (“CAT”); and (2) denying his request for recusal. We deny the

petition for review.

In this “withholding-only” proceeding under 8 C.F.R. § 241.8(e), we have

jurisdiction under 8 U.S.C. § 1252(a) to “review reinstated removal orders under

the standard applicable to final orders of removal.” Andrade-Garcia v. Lynch, 828

F.3d 829, 836 (9th Cir. 2016).

The BIA and IJ applied the correct legal standard in analyzing whether

Valdez-Lopez’s conviction under Nevada Revised Statutes § 453.337 for

Possession of a Controlled Substance for the Purpose of Sale was a “particularly

serious crime” for purposes of 8 U.S.C. § 1231(b)(3)(B)(ii). That is, “the agency

relied on the ‘appropriate factors’ and ‘proper evidence’ to reach this conclusion.”

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (quoting

Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010)). As such, there was no

abuse of discretion in concluding that Valdez-Lopez was convicted of a

particularly serious crime, and that he is therefore ineligible to seek withholding of

removal. See id. (holding that we “review for abuse of discretion the BIA’s

2
conclusion that an offense constitutes a particularly serious crime”) (citing Arbid

v. Holder, 700 F.3d 379, 382, 384-85 (9th Cir. 2012)).1

The record does not compel the conclusion that Valdez-Lopez is eligible for

CAT relief. Arbid, 700 F.3d at 386. Substantial evidence supports the BIA’s and

IJ’s conclusion that the Mexican government would not acquiesce in torture of

Valdez-Lopez. See, e.g., Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir.

2014).

Finally, the IJ did not deny Valdez-Lopez due process when she denied his

motion to recuse herself. See Vargas-Hernandez v. Gonzales, 497 F.3d 919, 925

(9th Cir. 2007) (explaining that a review of motions for recusal of an immigration

judge is governed by constitutional due process standards). Valdez-Lopez neither

identified an extrajudicial source of bias, nor demonstrated “such pervasive bias

and prejudice . . . as would constitute bias against a party.” Id. (quoting Matter of

Exame, 18 I. & N. Dec. 303, 306 (BIA 1982) (internal quotation marks omitted));

see also Litecky v. United States, 510 U.S. 540, 555 (1994).

PETITION FOR REVIEW DENIED.

1
Because Valdez-Lopez is ineligible to seek withholding of removal, we
need not reach, on the merits, whether he met his burden to prove that it is more
likely than not that he would be subject to persecution because of his membership
in a particular social group.