Konou v. Holder, No. 09-71454 (9th Cir. 2014)
Annotate this CasePetitioner, a native and citizen of the Marshall Islands, sought review of the BIA's order reversing the IJ's finding that he was eligible for relief under the Convention Against Torture (CAT). Petitioner fled the Marshall Islands as a teenager after being sexually assaulted and beaten as a homeless, homosexual child. The authorities there allegedly did nothing to intervene. Petitioner was later convicted in California state court of assault with a deadly weapon other than a firearm and of battery with serious bodily injury following a fight with his then-boyfriend. The court concluded that the record contained substantial evidence supporting the BIA's conclusion that petitioner would not likely be subjected to torture based on his sexual orientation if removed to the Marshall Islands; the BIA's interpretation of the State Department Report, which found that the Marshall Islands have no enforced proscriptions on homosexuality, was entitled to deference; and the BIA was not required to presume that petitioner would be tortured again because of his own credible testimony that he had been subjected to torture as a homeless child. The court also concluded that the BIA did not abuse its discretion in determining that petitioner's assault-and-battery convictions were particularly serious crimes. Just because a sentencing enhancement cannot be considered for the purpose of determining whether the crime is an aggravated felony does not imply that it cannot be considered for purposes of determining whether the crime is particularly serious. The BIA adopted the IJ's reasoning. The court concluded, in light of Delgado v. Holder, that the IJ properly considered the two-year enhancement under the Frentescu factors. Accordingly, the court denied the petition for review.
Court Description: Immigration. The panel denied a petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture. The panel held that the Board may consider sentencing enhancements for purposes of determining whether an alien who has not committed an aggravated felony has nonetheless committed a particularly serious crime, and that in this case, the Board did not abuse its discretion in concluding that the nature of petitioner’s conviction, the circumstances and facts underlying the conviction, and the type of sentence imposed, including the sentencing enhancement, supported the finding that petitioner’s assault and battery conviction constituted a particularly serious crime. The panel held that substantial evidence supported the Board’s determination that petitioner failed to establish a clear probability of future torture because the Marshall Islands country report indicated that laws criminalizing homosexuality were categorically not enforced.
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