Mairena v. Barr, No. 15-72833 (9th Cir. 2019)
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The Ninth Circuit denied a petition for review of the BIA's decision upholding the IJ's denial of withholding of removal and protection under the Convention Against Torture (CAT). The panel held that it was appropriate for the BIA to consider sentencing enhancements when it determined that a petitioner was convicted of a particularly serious crime on a case-by-case basis.
The panel clarified that it was also appropriate for the BIA to consider sentencing enhancements when it determined that a petitioner was convicted of a per se particularly serious crime. In this case, petitioner was convicted of willful infliction of corporal injury upon the mother of his child with a prior conviction, and was sentenced with a one-year enhancement that made his aggregate term of imprisonment five years. The panel held that the BIA applied the correct legal standard when it determined that petitioner was convicted of a per se particularly serious crime and was therefore ineligible for withholding of removal. The panel also held that substantial evidence supported the denial of CAT relief.
Court Description: Immigration. Denying Danilo Mairena’s petition for review of a decision of the Board of Immigration Appeals that upheld an immigration judge’s denial of withholding of removal, protection under the Convention Against Torture (“CAT”), and related relief, the panel held that it is appropriate for the BIA to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime. Mairena was convicted of willful infliction of corporal injury upon the mother of his child with a prior conviction, in violation of California Penal Code § 273.5(e)(1), and was sentenced to five years of imprisonment: four years for the offense, plus a one-year enhancement, pursuant to California Penal Code § 12022.5(b)(1), for using a weapon during the commission of the offense.
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