                                                                           FILED
                              NOT FOR PUBLICATION                           AUG 12 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



ROMMEL ESCOBAR, a.k.a. Romel                     No. 06-70634
Noe Escobar,
                                                 Agency No. A038-085-623
                Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney
General,

                Respondent.



                       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.***




          *
             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.
                                                                               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).
                                                                               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.
