United States v. 2020-10-19 | 18-70598 | JOSE BARRERA HUERTA V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE BARRERA HUERTA, AKA Joel
Solorio Moya,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 18-70598

Agency No. A205-024-508

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted October 13, 2020
**

San Francisco, California

Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,
***
District
Judge.

Jose Barrera Huerta challenges the Board of Immigration Appeals’ (BIA)
decision denying his requests for withholding of removal and relief under the

*
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 Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
FILED

OCT 19 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
§ 1252(a)(1). We deny his petition for review.
1. Particularly Serious Crime. We review the BIA’s particularly serious
crime determination for abuse of discretion. Arbid v. Holder, 700 F.3d 379, 383 (9th
Cir. 2012). The Attorney General may not remove a noncitizen to a country if the
Attorney General decides that the noncitizen’s “life or freedom would be threatened
in that country because of the [noncitizen]’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
However, this restriction does not apply if the Attorney General decides that the
noncitizen has been convicted of a “particularly serious crime” and is therefore “a
danger to the community of the United States.” Id. § 1231(b)(3)(B)(ii).
There exists a strong presumption that a drug trafficking offense constitutes a
particularly serious crime. Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir.
2007); Matter of Y-L-, 23 I. & N. Dec. 270, 275–76 (Att’y Gen. 2002). In a “very
rare case,” a noncitizen can overcome the presumption by showing, at a minimum,
(1) a very small quantity of controlled substance; (2) a very modest
amount of money paid for the drugs in the offending transaction; (3)
merely peripheral involvement by the [noncitizen] in the criminal
activity, transaction, or conspiracy; (4) the absence of any violence or
threat of violence . . . ; (5) the absence of any organized crime or
terrorist organization involvement . . . ; and (6) the absence of any
adverse or harmful effect of the activity or transaction on juveniles.

Y-L-, 23 I. & N. Dec. at 276–77.

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While Barrera Huerta does not dispute the presumption applies, he contends
the Immigration Judge (IJ) failed to meaningfully review whether he rebutted the
presumption. The IJ determined that Barrera Huerta had not established the six
factors set out in Y-L- to rebut the presumption and disbelieved his testimony that he
did not intend to sell the drugs in the 2013 and 2015 convictions. Barrera Huerta
pleaded no contest to these charges, which both included an element of possession
for sale. See Cal. Health & Safety Code §§ 11351, 11378. Barrera Huerta’s only
evidence in this petition is his testimony that he possessed the drugs for personal use
without the intent to sell. A collateral attack on the convictions will not suffice to
rebut the presumption of a particularly serious crime. See Ramirez-Villalpando v.
Holder, 645 F.3d 1035, 1041 (9th Cir. 2011) (“A petitioner may not collaterally
attack his state court conviction on a petition for review of a BIA decision.”). We
find no abuse of discretion in concluding that Barrera Huerta’s drug trafficking
offenses constituted “particularly serious crime[s].” 8 U.S.C. § 1231(b)(3)(B)(ii).
2. Convention Against Torture Claim. The IJ acknowledged that Barrera
Huerta presented evidence of past torture from the Knights Templar cartel (or its
predecessor). However, Barrera Huerta’s evidence also showed that the Knights
Templar was a regional cartel. The IJ concluded that Barrera Huerta had not shown
that he would face torture if he relocated elsewhere in Mexico. Contrary to Barrera
Huerta’s contention that the IJ failed to evaluate his CAT claim, the IJ considered

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the appropriate standard and the evidence Barrera Huerta presented. Barrera Huerta
contends that the Knights Templar is a de facto government actor that would have
the opportunity to torture him if he is returned to Mexico. But the present record
does not compel the conclusion that Barrera Huerta is more likely than not to be
tortured upon his return to Mexico. See Nasrallah v. Barr, 140 S. Ct. 1683, 1692
(2020) (factual challenges to CAT claims are reviewed under the highly deferential
substantial evidence standard of review).
Petition for review is DENIED.