                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              SEP 24 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE RAMOS-MENDOZA,                              No.   15-73840

              Petitioner,                        Agency No. A078-013-842

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                       Argued and Submitted April 9, 2018
                            San Francisco, California

Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA,**
District Judge.

      Petitioner Ramos-Mendoza seeks relief from a Board of Immigration

Appeals (“BIA”) order dismissing his appeal from an Immigration Judge’s (“IJ”)


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
decision denying his application for withholding of removal and protection under

the Convention Against Torture (“CAT”). We have jurisdiction over his timely

petition, 8 U.S.C. § 1252, and we deny it.

                                          I

      Ramos-Mendoza’s suspended Nevada sentence of twenty-four to sixty

months in prison qualifies as a sentence to a “term of imprisonment of at least 5

years.” 8 U.S.C. § 1231(b)(3)(B)(iv). We disregard the suspension of his sentence

for purposes of making this calculation. 8 U.S.C. § 1101(a)(48)(B).

      We need not address the question of whether the appropriate reference is to

state law, see Shaya v. Holder, 586 F.3d 401, 406 (6th Cir. 2009), or simply to look

to the maximum sentence, see Nguyen v. INS, 53 F.3d 310, 311 (10th Cir. 1995),

because the result in this case is the same. Because Nevada law characterizes an

indeterminate sentence as a sentence “for the maximum period imposed by the

court subject to termination by parole after service of the minimum term,” Spillers

v. State, 436 P.2d 18, 23 (Nev. 1968) (emphasis added), overruled in part on other

grounds, Bean v. State, 465 P.2d 133 (Nev. 1970), either approach confirms that

Ramos-Mendoza’s sentence is “at least 5 years,” § 1231(b)(3)(B)(iv).

      Accordingly, we need not, and do not, decide which approach is required;

we only conclude that the BIA did not err in determining that Ramos-Mendoza was


                                         2
ineligible for withholding of removal because his “aggravated felony” conviction

resulted in a sentence of “at least 5 years.” § 1231(b)(3)(B)(ii), (iv); see also

Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305–07 (9th Cir. 2015) (noting that an

“aggravated felony” conviction resulting in a sentence of “at least 5 years” in

prison constitutes a “particularly serious crime,” rendering a non-citizen ineligible

for withholding of removal).

                                           II

      Substantial evidence supports the BIA’s denial of relief under the CAT.

Arbid v. Holder, 700 F.3d 379, 385–86 (9th Cir. 2012) (standard of review). The

record indicates that LGBTQ individuals in Mexico face discrimination at higher

rates than those in the United States and that the Mexican government’s

enforcement of the country’s anti-discrimination laws is sometimes inadequate.

This evidence, however, does not compel the conclusion that if Ramos-Mendoza is

removed to Mexico, he is more likely than not to be tortured “by or at the

instigation of or with the consent or acquiescence of a public official.” 8 C.F.R. §

1208.18(a)(1); see also Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011) (To

reverse, “the evidence must compel a different conclusion from the one reached by

the BIA.”).




                                           3
                                          III

      The BIA did not abuse its discretion in affirming the IJ’s denials of Ramos-

Mendoza’s motions for a continuance and a change of venue. Taggar v. Holder,

736 F.3d 886, 889 (9th Cir. 2013) (continuance standard of review); Baires v. INS,

856 F.2d 89, 92 (9th Cir. 1988) (change of venue standard of review). Ramos-

Mendoza had a year to prepare for his hearing before the IJ. Nonetheless,

approximately three weeks before this hearing, he dismissed his old attorney, and

acquired a new one. Ramos-Mendoza offers no excuse for this last-minute

substitution, which formed the basis for his motion for a continuance. Further, he

failed to establish prejudice on the record.

      His motion for a change of venue suffered from evidentiary shortcomings, in

addition to being last-minute. The evidence Ramos-Mendoza submitted to support

his claim that he moved from Reno, Nevada to San Francisco, California was not

persuasive. Moreover, even if the BIA abused it discretion by affirming the IJ’s

denials of these motions, Ramos-Mendoza fails to show any prejudice. Sandoval-

Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008).

      PETITION DENIED.




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