                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 02 2011

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



                            FOR THE NINTH CIRCUIT


ANGEL MATA CASTILLO,                             No. 07-73716

              Petitioner,                        Agency No. A79 264 607

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

              Respondent.


                      On Petition to Review a Decision of the
                          Board of Immigration Appeals

                    Argued and Submitted November 18, 2011
                            San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and BREWSTER, Senior
District Judge.**

       Petitioner Angel Mata Castillo appeals the Board of Immigration Appeal's

(BIA) decision to reverse the Immigration Judge's (IJ) award of withholding of

removal under the immigration statute and for protection under the Convention


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Rudi M. Brewster, Senior District Judge for the U.S.
District Court for Southern California, sitting by designation.
Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252.

Delgado v. Holder, 648 F.3d 1095, 1099-100 (9th Cir. 2011) (en banc); Edu v.

Holder, 624 F.3d 1137, 1142 (9th Cir. 2010). We grant the petition in so far as

Castillo relies on the CAT.

      As to the claim for asylum, Castillo argues that his criminal conviction for

selling and transporting methamphetamine does not qualify as a “particularly

serious crime.” 8 U.S.C. § 1231(b)(3)(B)(ii), § 1158(b)(2)(A)(ii). The state court

imposed a sentence of probation with 168 days of community service and Castillo

argues that mitigating factors apply to his case.

      We discern no legal error. The Attorney General applies a “strong

presumption” that a drug trafficking offense resulting in a sentence of less than five

years is a “particularly serious crime.” Miguel-Miguel v. Gonzales, 500 F.3d 941,

945-49 (9th Cir. 2007); Mahini v. INS, 779 F.2d 1419, 1420-21 (9th Cir. 1986). As

the seller of a dangerous drug, Castillo did not have merely peripheral involvement

in the transaction. Consequently, Castillo is not eligible to seek withholding of

removal under the statute or CAT. 8 U.S.C. § 1158(b)(2)(A)(ii); 8 C.F.R. §

1208.16(d); Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011).

      Despite his criminal conviction, Castillo is eligible for deferral of removal

under the CAT because his life would be in serious danger if he were to be


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removed to Mexico. 8 C.F.R. § 1208.17(a); Nuru v. Gonzales, 404 F.3d 1207,

1216 n.4 (9th Cir. 2005). We are compelled to reverse the BIA’s decision because

overwhelming evidence supports the IJ’s conclusion that Castillo would “more

likely than not” face torture within the meaning of the regulations. Cole v. Holder,

659 F.3d 762, 770 (9th Cir. 2011) (citing 8 C.F.R. § 1208.18(a)(1)); Edu, 624 F.3d

at 1144-45. Here, the IJ found that Castillo, his wife, and his father-in-law were

credible witnesses, and the BIA accepted those determinations. Cole, 659 F.3d at

770; Edu, 624 F.3d at 1143; Kalubi v. Ashcroft, 364 F.3d 1134, 1135-38 (9th Cir.

2004). Their testimony and supporting documents establish the validity of

Castillo’s claim for protection under the CAT.

       AFFIRMED in part, REVERSED in part, and REMANDED. Each

party shall bear their own costs.




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