FILED
NOT FOR PUBLICATION
MAY 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEDERICO DIEGO DE DIEGO, No. 13-72048
Petitioner, Agency No. A077-424-906
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2017
Seattle, Washington
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
Federico Diego de Diego1 petitions for review of the Board of Immigration
Appeals’s (BIA) order dismissing his appeal from an immigration judge’s (IJ)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
The docket identifies the petitioner as “Frederico Diego de Diego,” but the
administrative record and his briefs reflect the name “Federico.” The Clerk is
directed to amend the name listed on the docket consistent with the caption as it
appears in this disposition.
removal order. Because Diego is removable as an aggravated felon under 8 U.S.C.
§ 1227(a)(2)(A)(iii), our jurisdiction is limited to “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D). We also retain jurisdiction to review
denial of relief under the Convention Against Torture (CAT) where, as here, the IJ
“does not rely on an alien’s conviction in denying CAT relief and instead denies
relief on the merits.” Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007); but
cf. Pechenkov v. Holder, 705 F.3d 444, 451 (9th Cir. 2012) (Graber, J.,
concurring).
The BIA did not violate Diego’s due process rights by affirming the IJ’s
decision and writing separately only to address Diego’s “salient contentions on
appeal.” See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir. 2003).
Diego received multiple full and fair hearings, and multiple detailed and reasoned
opinions from the IJ.2
The IJ applied the correct legal standard in concluding that Diego committed
particularly serious crimes, making him ineligible for withholding of removal
2
In a separate opinion published today, we resolve Diego’s claims that the
BIA erred in terminating his asylee status and denying adjustment of status and
waiver of inadmissibility. See Diego v. Sessions, — F.3d — (9th Cir. 2017)
2
under 8 U.S.C. § 1231(b)(3)(B)(ii).3 See Konou v. Holder, 750 F.3d 1120, 1127
(9th Cir. 2014); In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007); In re
Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982). Our review is limited to whether
the agency applied the correct legal standard; we cannot reweigh the evidence. See
Konou, 750 F.3d at 1127.
The IJ did not err in concluding that Diego failed to demonstrate that he
would more likely than not be tortured if he returned to Guatemala. See 8 C.F.R.
§ 208.16(c)(2). There is no indication that the IJ failed to consider all of the
evidence, see Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011), and nothing in the
record compels the conclusion that Diego would more likely than not be tortured if
he returned to Guatemala, see Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir.
2013); Morales, 478 F.3d at 977. The BIA did not err in reviewing for clear error
the IJ’s factual findings regarding the likelihood that Diego would be tortured. See
Vitug, 723 F.3d at 1063–64; In re Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA 2015).
3
The IJ also did not err by failing to terminate Diego’s prior grant of
withholding of removal expressly; the IJ expressly terminated Diego’s asylee
status, denied Diego’s application for asylum and withholding of removal, and
ordered Diego removed to Guatemala. The IJ’s decision that Diego was ineligible
for withholding of removal because he had committed particularly serious crimes
and the IJ’s order of removal make clear that the IJ was also terminating Diego’s
prior grant of withholding. The IJ’s and BIA’s decisions are “clear enough” that
we are not left to speculate about their determinations and rationales. Delgado v.
Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc).
3
PETITION DISMISSED IN PART AND DENIED IN PART.
4