Opinion
No. 16-73713
03-15-2019
CESAR VIRGEN-HERNANDEZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A088-718-849 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Cesar Virgen-Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's decision denying his application for withholding of removal and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the agency's particularly serious crime determination, and review for substantial evidence the agency's factual findings. Konou v. Holder, 750 F.3d 1120, 1124, 1127 (9th Cir. 2014). We deny the petition for review.
The agency did not abuse its discretion in determining Virgen-Hernandez's conviction for possession with intent to distribute cocaine is a particularly serious crime that renders him ineligible for withholding of removal, where drug trafficking crimes are presumed to be particularly serious, and the agency relied on the appropriate factors and proper evidence in concluding Virgen-Hernandez failed to rebut that presumption. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2); Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (recognizing the "strong presumption" that drug trafficking offenses are particularly serious); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) ("Our review is limited to ensuring that the agency relied on the appropriate factors and proper evidence to reach this conclusion." (internal quotations omitted)); Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (holding the BIA adequately considered evidence and sufficiently announced its decision).
Because the particularly serious crime determination is dispositive, we do not, and the BIA was not required to, address Virgen-Hernandez's remaining contentions regarding eligibility withholding of removal. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach).
Substantial evidence supports the agency's denial of CAT relief, where Virgen-Hernandez did not show it is more likely than not he would be tortured by or with the acquiescence of the Mexican government. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative); Najmabadi, 597 F.3d at 990-91.
PETITION FOR REVIEW DENIED.