Sellan-Mazzini v. Gonzales
Sellan-Mazzini v. Gonzales
Opinion of the Court
MEMORANDUM
Tony Adan Sellan-Mazzini, a native and
We grant Sellan-Mazzini’s petition for review in No. 05-73033, vacate the BIA’s April 21, 2005 order dismissing his appeal on the merits, and remand to the BIA for reconsideration of its determination that Sellan-Mazzini’s 2001 conviction was for a particularly serious crime. We reject Sellan-Mazzini’s other challenges to the April 21, 2005 order. Finally, we deny SellanMazzini’s petition for review in No. 05-77274, which seeks review of the BIA’s November 21, 2005 order denying his motion to reopen.
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to consider Sellan-Mazzini’s argument that the IJ applied the wrong legal standard when concluding that Sellan-Mazzini’s 2001 California conviction for second-degree robbery with a deadly or dangerous weapon was for a particularly serious crime. See Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006). As the BIA’s April 21, 2005 order appears to adopt the I J’s rationale, we review the I J’s reasoning. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
The IJ misapplied the law when it concluded that Sellan-Mazzini’s 2001 conviction was for a particularly serious crime. Although required to do so, the IJ did not engage in a case-specific inquiry into the specific facts underlying Sellan-Mazzini’s conviction. See Afridi, 442 F.3d at 1220; see also In re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982), superseded in part by statute, Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208 div. C sec. 305(a)(3), § 241(b)(3)(B), 110 Stat. 3009, 3009-602 (1996). We therefore grant Sellan-Mazzini’s petition for review and remand for the BIA to apply the Frentescu case-specific inquiry to determine whether Sellan-Mazzini’s 2001 robbery conviction was for a particularly serious crime.
We reject Sellan-Mazzini’s claim that the BIA erred in denying him relief under the Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s determination that the conditions to which Sellan-Mazzini would likely be subjected do not constitute torture. See 8 U.S.C. § 1252(a)(2)(D); Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir. 2007). Substantial evidence, however, supports the BIA’s determination that he is ineligible for CAT relief. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Finally, we reject Sellan-Mazzini’s various due process claims. Sellan-Mazzini has not shown prejudice from any mistakes made by his counsel at the removal hearing. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857-58 (9th Cir. 2004) (per curiam). Sellan-Mazzini also failed to show that the BIA denied him a reasonable opportunity to present his case. Cf. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
PETITION FOR REVIEW IN NO. 05-73033 GRANTED, BIA ORDER VACATED AND REMANDED. PETITION FOR REVIEW IN NO. 05-77274 DENIED.
This disposition is not appropriate for publication and is not precedent except as provid
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