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Mairena v. Barr

United States Court of Appeals, Ninth Circuit

March 7, 2019

Danilo Alberto Mairena, AKA Danilo Alberto Mairewa, AKA Danilo Alberto Mariena, AKA Danilo Marieno, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Submitted November 14, 2018 [*] Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A027-142-897

          Tania Pham, Law Offices of Tania T. Pham, Woodland Hills, California, for Petitioner.

          Benjamin J. Zeitlin, Attorney; Carl McIntyre, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Carol Bagley Amon, [**] District Judge.

         SUMMARY [***]

         Immigration

         Denying Danilo Mairena's petition for review of a decision of the Board of Immigration Appeals that upheld an immigration judge's denial of withholding of removal, protection under the Convention Against Torture ("CAT"), and related relief, the panel held that it is appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime.

         Mairena was convicted of willful infliction of corporal injury upon the mother of his child with a prior conviction, in violation of California Penal Code § 273.5(e)(1), and was sentenced to five years of imprisonment: four years for the offense, plus a one-year enhancement, pursuant to California Penal Code § 12022.5(b)(1), for using a weapon during the commission of the offense.

         In removal proceedings, the BIA concluded that (1) Mariena was statutorily ineligible for withholding of removal because he was sentenced to an aggregate term of five years of imprisonment for his corporal injury conviction, factoring in the one-year enhancement; and (2) the IJ did not clearly err in determining that Mairena failed to establish that he would more likely than not be tortured if he returned to Nicaragua.

         Under 8 U.S.C. § 1231(b)(3)(B)(ii), withholding of removal is not available "if the Attorney General decides that . . . the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States . . . ." The provision further explains: "For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime."

         Mairena did not dispute that his conviction constituted an aggravated felony, but argued that the BIA erred by considering the one-year sentencing enhancement in deciding that he was sentenced to an aggregate term of imprisonment of five years-and consequently convicted of a per se particularly serious crime-because the enhancement was not an element of the offense and because the statutory maximum for his offense was four years.

         The panel noted that aggravated felonies with resulting sentences of at least five years are per se particularly serious and, by contrast, aggravated felonies resulting in sentences fewer than five years are not per se particularly serious and require a case-by-case analysis. The panel also observed that this court has already held that it is appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a particularly serious crime on a case-by-case basis.

         The panel now clarified that it is also appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime. The panel explained that Mairena's contention that the BIA could not consider his sentencing enhancement was foreclosed by the plain language of § 1231(b)(3)(B), in that the five-year requirement is keyed to the "aggregate term of imprisonment" for the actual sentence imposed-not to the statutory maximum. The panel also observed that nothing in the text of the statute prohibits the BIA from considering sentencing enhancements in computing the aggregate term of imprisonment.

         Moreover, the panel noted that, even if it accepted Mairena's contention that it should look to the statutory maximum in interpreting § 1231(b)(3)(B), the statutory maximum for Mairena's offense of conviction was in fact five years, not four years.

         The panel also concluded that substantial evidence supported the BIA's conclusion that Mairena was ineligible for CAT relief. The panel concluded that the IJ was not required to conduct a separate credibility analysis in adjudicating the CAT claim, explaining that the IJ was entitled to rely on the adverse credibility determination in denying CAT relief, provided that the IJ considered other evidence in the record on country conditions in Nicaragua. The panel concluded that the IJ did so in this case. The panel also concluded that the record did not compel the conclusion that Mairena would more likely than not be tortured upon return to Nicaragua.

          OPINION

          PER ...


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