Cesar Negrete v. Merrick Garland

FILED NOT FOR PUBLICATION JUL 7 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CESAR PAZ-NEGRETE, AKA Cesar Paz, No. 16-73889 AKA Cesar Negrete Paz, Agency No. A019-342-111 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 14, 2023** Pasadena, California Before: BYBEE and CHRISTEN, Circuit Judges, and FITZWATER,*** District Judge. * 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 Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.  Cesar Paz-Negrete petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an Immigration Judge’s (IJ) decision finding him removable based on an aggravated felony conviction and denying his applications for asylum, withholding, and protection under the Convention Against Torture (CAT). On appeal, Paz-Negrete has also filed a motion to remand for termination of his removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review and the motion to remand. 1. As a threshold matter, Paz-Negrete argues in his motion to remand that the immigration court lacked jurisdiction because his Notice to Appear (NTA) did not state the time and date of his removal hearing. This argument is foreclosed by our en banc decision in United States v. Bastide-Hernandez, which held that a defective NTA does not deprive the immigration court of jurisdiction. 39 F.4th 1187, 1193–94 (9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 755 (2023). 2. Next, Paz-Negrete argues the IJ erred by finding him removable based on an aggravated-felony conviction. See 8 U.S.C. § 1227(a)(2)(A)(iii). Paz-Negrete was convicted of violating California Penal Code § 245(a)(1), which criminalizes “an assault upon the person of another with a deadly weapon or instrument other than a firearm.” The IJ concluded this conviction constituted an aggravated felony 2 because § 245(a)(1) is a “crime of violence.” See 8 U.S.C. § 1101(a)(43)(F). 8 U.S.C. § 16(a) defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The generic federal definition of “crime of violence” requires both violent force and intentional or knowing conduct. See Johnson v. United States, 559 U.S. 133, 140 (2010); Leocal v. Ashcroft, 543 U.S. 1, 9–11 (2004); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006) (en banc); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016–17 (9th Cir. 2006); see also Borden v. United States, 141 S. Ct. 1817, 1833 (2021). Paz-Negrete argues that § 245(a)(1) is broader than § 16(a) because its elements can be satisfied by an offensive touching or reckless or negligent conduct, but our court rejected both those arguments in United States v. Grajeda, 581 F.3d 1186, 1189–97 (9th Cir. 2009), and United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1065–68 (9th Cir. 2018). Paz-Negrete asserts that Grajeda and Vasquez- Gonzalez are distinguishable because those cases examined the 1995 version of § 245(a)(1), which criminalized assault “with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.” See Cal. Penal Code § 245(a)(1) (1995) (emphasis added). The 1995 statute was later amended to omit the second element, Vasquez-Gonzalez, 901 F.3d at 1068 & n.8, 3 and Paz-Negrete was convicted under the modern version of the statute. But because the element removed was “defined in the disjunctive,” Grajeda, 581 F.3d at 1191, the amendment could not change Grajeda’s and Vasquez-Gonzalez’s conclusions that a § 245(a)(1) conviction is encompassed by § 16(a)’s definition of “crime of violence.” Because Grajeda and Vasquez-Gonzalez are binding authority, we conclude the IJ correctly determined that Paz-Negrete’s § 245(a)(1) conviction constituted an aggravated felony. 3. Last, we conclude substantial evidence supports the agency’s denial of CAT relief. As both the IJ and BIA noted, the past harm Paz-Negrete suffered likely does not rise to the level of torture given his minimal injuries. See 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.”); see also Ahmed v. Keisler, 504 F.3d 1183, 1201 (9th Cir. 2007) (concluding “it is not clear” on substantial-evidence review that severe beating would “rise to the level of torture”). As to Paz- Negrete’s future likelihood of torture, the agency’s finding is supported by the facts that Paz-Negrete visited Tijuana numerous times with no incident for over a decade and did not show he was unable to live in other Mexican states. Though the country-conditions report that Paz-Negrete submitted described incidents of 4 torture by Mexican government officials and organized criminal groups, this evidence did not suffice to meet Paz-Negrete’s burden of showing he faced an individualized risk of torture. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (holding that “generalized evidence of violence and crime in Mexico is not particular to Petitioners and is insufficient to meet [the CAT] standard”). PETITION FOR REVIEW AND MOTION TO REMAND DENIED. 5