Rodriguez Picazo v. Garland

FILED NOT FOR PUBLICATION SEP 19 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OSCAR RODRIGUEZ PICAZO, No. 22-1964 Agency No. Petitioner, A073-889-287 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 15, 2023** Pasadena, California Before: SCHROEDER, FRIEDLAND, and MILLER, Circuit Judges Oscar Rodriguez Picazo, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals affirming an immigration judge’s denial of his applications for withholding of removal and protection under * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. We review the Board’s legal determinations de novo. Vitug v. Holder, 723 F.3d 1056, 1062 (9th Cir. 2013). We review factual findings for substantial evidence. See id. 1. Picazo argues that his conviction under California Health & Safety Code section 11378, which criminalizes possessing a controlled substance for sale, was not a conviction for an aggravated felony. Before the immigration judge and through counsel, however, Picazo conceded that he was convicted under that section for possessing methamphetamine for sale. He further conceded that the conviction was one for committing an aggravated felony and that he was therefore removable. See 8 U.S.C. § 1227(a)(2)(A)(iii). Although Picazo now takes a different view, “[w]e have held that concessions in removal proceedings are binding except in ‘egregious circumstances.’” Menendez v. Whitaker, 908 F.3d 467, 474 (9th Cir. 2018) (quoting Santiago-Rodriguez v. Holder, 657 F.3d 820, 831 (9th Cir. 2011)). In his briefing before this court, Picazo makes a passing reference to ineffective assistance of counsel. But Picazo did not argue ineffectiveness before the Board, and the Government has preserved its argument that Picazo failed to exhaust the ineffectiveness argument. See Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1116 2 22-1964 (2023). We therefore do not consider the argument now. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023); 8 U.S.C. § 1252(d)(1). Picazo would also be relieved of the concession that he committed an aggravated felony if he “offer[ed] evidence proving that ‘the factual admissions and concession of [removability] were untrue or incorrect.’” Santiago-Rodriguez, 657 F.3d at 832 (quoting Matter of Velasquez, 19 I. & N. Dec. 377, 383 (B.I.A. 1986)). But Picazo does not contend that the Board ultimately got it wrong in concluding that he committed an aggravated felony. See United States v. Verduzco- Rangel, 884 F.3d 918, 923 (9th Cir. 2018) (holding that a conviction under section 11378 is a “drug trafficking aggravated felony” when methamphetamine is the substance involved). Picazo mainly argues that the Board was barred from reaching the conclusion it did without considering judicially noticeable …

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