Rommel Escobar, a.k.a. Romel Noe Escobar v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 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 Ronald M. Whyte, Senior United States District Judge***
for the Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMMEL ESCOBAR, a.k.a. Romel
Noe Escobar,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.
No. 06-70634
Agency No. A038-085-623
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 2, 2010**
Pasadena, California
Before: KOZINSKI, Chief Judge, REINHARDT, Circuit Judge and
WHYTE, District Judge.***
FILED
AUG 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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page 2
The BIA did not err in finding that Escobar’s robbery conviction under
California Penal Code § 212.5(c) is a “particularly serious crime” rendering him
ineligible for withholding of removal. 8 U.S.C. § 1231(b)(3)(B)(ii). Current
dangerousness is not a factor that the BIA is required to consider in making its
“particularly serious crime” determination, see Anaya-Ortiz v. Holder, 594 F.3d
673, 679 (9th Cir. 2010); 8 C.F.R. § 1208.16(d)(2), and the BIA did not adopt or
rely on the Immigration Judge’s comments regarding the potential injury to the
victim. So, even assuming those comments were inappropriate, they are irrelevant.
Escobar’s claim that the IJ denied him the opportunity to present evidence and
argument as to whether his crime was “particularly serious” also fails. The IJ gave
Escobar ample opportunity to present evidence and argument, and Escobar
declined to do so.
Escobar’s argument that his nolo contendere plea cannot support the BIA’s
removability determination is waived because it was not included in his opening
brief. See United States v. Traynor, 990 F.2d 1153, 1159 (9th Cir. 1993). Even
were we to assess the merits of this claim, we would affirm. For immigration
purposes, convictions matter, not actual guilt, see 8 U.S.C. § 1231(b)(3)(B), and a
no contest plea resulting in some form of punishment is considered a conviction,
see 8 U.S.C. § 1101(a)(48)(A).

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page 3
Escobar’s speculative evidence didn’t show it was more likely than not that
he would be tortured in Honduras because of his gang affiliation, so there was
“substantial evidence” for the BIA’s denial of CAT protection. Shrestha v. Holder,
590 F.3d 1034, 1048 (9th Cir. 2010) (“We review for substantial evidence the
BIA’s determination that [petitioner] is not eligible for protection under CAT.”).
PETITION DENIED.

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