Brian Guzman-Nunez v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 31 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BRIAN ROSALIO GUZMAN-NUNEZ, No. 19-70315 AKA Brian Guzman, AKA Bryan Guzman, Agency No. A099-060-254 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 5, 2020 Submission Withdrawn March 16, 2020 Resubmitted July 31, 2020 Pasadena, California Before: NGUYEN, HURWITZ, and FRIEDLAND, Circuit Judges. Brian Guzman-Nunez, a native and citizen of Belize, petitions for review of an order of the Board of Immigration Appeals (“BIA”) holding that the immigration judge (“IJ”) had jurisdiction over Guzman’s removal proceedings and affirming the IJ’s decision denying Guzman asylum, withholding of removal under * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture (“CAT”). We deny the petition for review. 1. We hold that the IJ had jurisdiction over Guzman’s removal proceedings. Our decision in Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019), forecloses Guzman’s argument that, under Pereira v. Sessions, 138 S. Ct. 2105 (2018), the IJ lacked jurisdiction because his Notice to Appear (“NTA”) did not contain the time and place information required by 8 U.S.C. § 1229(a). And our decision in Aguilar Fermin v. Barr, 958 F.3d 887, 894-95, 895 n.4 (9th Cir. 2020), petition for cert. filed (U.S. July 16, 2020) (No. 20-53), forecloses any contention that the IJ lacked jurisdiction because Guzman’s NTA did not contain the place information required by 8 C.F.R. §§ 1003.14(a), 1003.15(b)(6). 2. We hold that the BIA did not abuse its discretion in concluding that Guzman was convicted of a particularly serious crime. Guzman was convicted of possession of cocaine base for purposes of sale, which is presumptively a particularly serious crime. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 945-50 (9th Cir. 2007). In concluding that Guzman failed to rebut this presumption, the BIA relied on the IJ’s findings that “[t]wenty-one individual packets of rock cocaine is not ‘de minimis or inconsequential,’” and that Guzman “was encountered in an area frequented by members of the Hoover Crip gang” at a time when Guzman was a member of the gang. Guzman emphasizes that the twenty- 2 one packets contained only a total of 6.49 grams of cocaine, but we are unable to “reweigh evidence to determine if the crime was indeed particularly serious.” Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014) (quoting Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir. 2013)). Guzman also argues that there is no basis for any connection between his “criminal activity” and “organized crime,” but evidence in the record supports the IJ findings relied on by the BIA. And, although Guzman further contends that he played only a “peripheral role” because there was no evidence he “intend[ed] to sell the substance,” he was convicted ...

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