Cesar Virgen-Hernandez v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR VIRGEN-HERNANDEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-73713
Agency No. A088-718-849
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Cesar Virgen-Hernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for withholding of
removal and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the agency’s
* 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).
FILED
MAR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 16-73713
particularly serious crime determination, and review for substantial evidence the
agency’s factual findings. Konou v. Holder, 750 F.3d 1120, 1124, 1127 (9th Cir.
2014). We deny the petition for review.
The agency did not abuse its discretion in determining Virgen-Hernandez’s
conviction for possession with intent to distribute cocaine is a particularly serious
crime that renders him ineligible for withholding of removal, where drug
trafficking crimes are presumed to be particularly serious, and the agency relied on
the appropriate factors and proper evidence in concluding Virgen-Hernandez failed
to rebut that presumption. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R.
§ 1208.16(d)(2); Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007)
(recognizing the “strong presumption” that drug trafficking offenses are
particularly serious); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir.
2015) (“Our review is limited to ensuring that the agency relied on the appropriate
factors and proper evidence to reach this conclusion.” (internal quotations
omitted)); Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (holding the
BIA adequately considered evidence and sufficiently announced its decision).
Because the particularly serious crime determination is dispositive, we do
not, and the BIA was not required to, address Virgen-Hernandez’s remaining
contentions regarding eligibility withholding of removal. See Simeonov v. Ashcroft,
371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide

-- 2 of 3 --

3 16-73713
issues unnecessary to the results they reach).
Substantial evidence supports the agency’s denial of CAT relief, where
Virgen-Hernandez did not show it is more likely than not he would be tortured by
or with the acquiescence of the Mexican government. See Zheng v. Holder, 644
F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative);
Najmabadi, 597 F.3d at 990-91.
PETITION FOR REVIEW DENIED.

-- 3 of 3 --