Opinion
No. 20-71083
01-22-2021
FERNANDO CASTILLO, Petitioner, v. ROBERT M. WILKINSON, Acting Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A074-423-399 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Fernando Castillo, 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 asylum, withholding of removal, relief under the Convention Against Torture ("CAT"), and his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the agency's particularly serious crime determination. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). We review for substantial evidence the agency's factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We review de novo questions of law. Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th Cir. 2005). We deny the petition for review.
The agency did not abuse its discretion in determining that Castillo's conviction was a particularly serious crime that barred him from asylum and withholding of removal, where the agency considered the correct factors. See Avendano-Hernandez, 800 F.3d at 1077 ("Our review is limited to ensuring that the agency relied on the appropriate factors and proper evidence to reach this conclusion." (internal quotation marks and citation omitted)); Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010) ("[A]ll reliable information may be considered in making a particularly serious crime determination...." (citation omitted)). Thus, Castillo's asylum and withholding of removal claims fail.
Substantial evidence supports the agency's denial of deferral of removal under CAT because Castillo failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The BIA did not err in concluding that Castillo is statutorily precluded from establishing good moral character because he was incarcerated, as a result of a conviction, for more than 180 days during the relevant period. See 8 U.S.C. § 1101(f)(7); Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1233 (9th Cir. 2008) (concluding that a petitioner was ineligible for cancellation of removal under 8 U.S.C. § 1101(f)(7)). We do not otherwise address Castillo's contentions as to whether his conviction constitutes a crime involving moral turpitude because the agency relied on the length of his incarceration, not the nature of his crime. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) ("In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency." (citation and internal quotation marks omitted)). Thus, Castillo's cancellation of removal claim fails.
As stated in the court's June 11, 2020 order, the temporary stay of removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.