Aurora Virrueta-Paliminos v. Eric Holder, Jr.

U.S. Court of Appeals for the Ninth Circuit
Aurora Virrueta-Paliminos v. Eric Holder, Jr., 600 F. App'x 516 (9th Cir. 2015)

Aurora Virrueta-Paliminos v. Eric Holder, Jr.

Opinion

MEMORANDUM ***

Aurora Virrueta-Paliminos, a Mexican citizen and lawful permanent resident of *517 the United States, petitions for review of the Board of Immigration Appeals’ dismissal of her appeal from the Immigration Judge’s denial of her applications for withholding of removal under the Immigration and Nationality Act and withholding and deferral of removal under the Convention Against Torture. Except as noted below, we have jurisdiction pursuant to 8 U.S.C. § 1252. We DENY IN PART AND DISMISS IN PART.

The BIA applied the correct legal stan dard — Matter of Y-L-, 28 I. & N. Dec. 270 (A.G. 2002) — to determine that Virrueta-Paliminos’s conviction for violating California Health and Safety Code § 11351 was a particularly serious crime barring her applications for withholding of removal. Miguel-Miguel v. Gonzales, 500 F.3d 941, 947-49 (9th Cir. 2007). The BIA’s application of Y-L- complies with Blandino-Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013), because Y-L- “requires the agency to conduct a case-by-case analysis,” id. at 1343, of drug trafficking crimes for which the petitioner was sentenced to less than five years by looking to whether the individualized circumstances of the crime overcome the strong presumption that it is particularly serious, see Y-L- 23 I. & N. Dec. at 276-77. 1 It is irrelevant whether the agency properly found Virrueta-Pali-minos’s testimony regarding her criminal conviction not credible because she admitted through counsel that she had been convicted of violating § 11351 and the BIA’s conclusion was based on the amount of drugs involved in that crime, a fact Virrueta-Paliminos never contested. This aspect of the petition is therefore denied.

The court lacks jurisdiction “over the BIA’s ultimate determination that [Virrue-ta-Paliminos] committed a ‘particularly serious crime’ ” because the quantity of drugs involved was not small. Anayou-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010). It also lacks jurisdiction to consider whether Virrueta-Paliminos demonstrated she is a member of a particular social group and is likely to be tortured in Mexico because the agency did not reach these issues. I.N.S. v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). These aspects of the petition are dismissed.

The court denies the remainder of Vir-rueta-Paliminos’s petition for review because substantial evidence supports the BIA’s determination that she failed to show the Mexican government would acquiesce in her torture. The country conditions reports are too general to compel any reasonable factfinder to conclude anything beyond the fact that some police in some undefined areas of Mexico would acquiesce in the torture of citizens by drug cartels. They do not compel the conclusion that a public official would acquiesce in Virrueta-Paliminos’s torture. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010); Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006).

PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.

MOTION TO REMAND DENIED.

***

This disposition is not appropriate for publication and is not precedent except as provid *517 ed by 9th Cir. R. 36-3.

1

. On this basis, the court also DENIES Vir-rueta-Paliminos’s pending motion.

Reference

Full Case Name
Aurora VIRRUETA-PALIMINOS, AKA Aurora Virructa, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent
Status
Unpublished