                                                                           FILED
                            NOT FOR PUBLICATION                              JUL 13 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



MINJIU SITO,                                     No. 05-74913

              Petitioner,                        Agency No. A071-781-639

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                              Submitted July 9, 2010**
                              San Francisco, California

Before: RYMER, RAWLINSON and CALLAHAN, Circuit Judges.

       Minjiu Sito brings this petition for review of the Board of Immigration

Appeals's ('BIA') decision affirming the immigration judge's ('IJ')

determinations that he is removable based on his aggravated felony convictions

and ineligible for relief from removal. We have jurisdiction pursuant to 8 U.S.C. y

        *
             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).
1252. We review the BIA's legal holdings de novo. Simeonov v. Ashcroft, 371

F.3d 532, 535 (9th Cir. 2004). We deny the petition for review.1

      1.     The BIA did not err in finding Sito removable as an aggravated felon

because his robbery convictions under California Penal Code y 212.5(b) are

categorical crimes of violence under 8 U.S.C. y 1101(a)(43)(F), and Sito was

sentenced to a term of imprisonment of at least one year for his crimes. See U.S. v.

McDougherty, 920 F.2d 569, 573 (9th Cir. 1990) ('[R]obbery under California law

is [] by definition a crime of violence.'); see also Nieves-Medrano v. Holder, 590

F.3d 1057, 1057-58 (9th Cir. 2010). To the extent that Sito argues against

retroactive application to his crimes of the definition of 'aggravated felony'

contained in the Illegal Immigration Reform and Immigrant Responsibility Act of

1996, his challenge is foreclosed by our precedent. See Aragon-Ayon v. INS, 206

F.3d 847, 852-53 (9th Cir. 2000).

      2.     Sito is statutorily ineligible for relief under former section 212(c) of

the Immigration and Nationality Act ('INA'), 8 U.S.C. y 1182(c), because he was

placed in removal proceedings rather than exclusion proceedings. Abebe v.

Holder, 554 F.3d 1203, 1205 (9th Cir. 2009) (en banc) (per curiam). Further,



      1
         Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.

                                          -2-
aliens in removal proceedings are not denied equal protection of the law because

Congress chose to maµe avenues of relief available in exclusion proceedings that it

did not maµe available to aliens in removal proceedings. Id. at 1206-07. Abebe

thus forecloses each of Sito's challenges to the BIA's refusal to pass on the IJ's

discretionary denial of y 212(c) relief. Cf. Simeonov, 371 F.3d at 538.

      3.     We have jurisdiction to consider Sito's claim for deferral of removal

under the Convention Against Torture ('CAT'). See Bromfield v. Muµasey, 543

F.3d 1071, 1075 (9th Cir. 2008).

      4.     We review for substantial evidence the IJ's determination, adopted by

the BIA, that Sito failed to show that he would more liµely than not be tortured if

removed to China. Muradin v. Gonzales, 494 F.3d 1208, 1210 (9th Cir. 2007);

Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004). That is, record evidence

must compel reversal. Muradin, 494 F.3d at 1210.

      5.     Sito testified that he feared persecution in China based on his United

States criminal record. He also feared that the Chinese government persecutes

students without identity documents, which he testified that he did not µnow how

to obtain. The BIA's determination that the Chinese authorities do not have

interest in crimes committed, prosecuted, and punished beyond their territorial

jurisdiction is supported by substantial evidence. The government has stipulated


                                          -3-
that it will obtain the appropriate travel documents from Chinese authorities before

Sito is deported to China, and Sito has not met his burden to show that he is unable

to get necessary identity documents on his return to China. Thus, the BIA's

determination that Sito has not met his burden to show that he will more liµely than

not be tortured because of inadequate documentation is supported by substantial

evidence.

      Accordingly, Sito's petition for review is DENIED.




                                         -4-
                                           FILED
Sito v. Holder, Case No. 05-74913            JUL 13 2010
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S . CO UR T OF AP PE A LS

     I concur in the result.
