                             NOT FOR PUBLICATION                        FILED
                        UNITED STATES COURT OF APPEALS                   JUN 21 2016
                                                                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT



MILTON IVAN GARCIA, AKA Milton                     No.   13-71856
Garcia,
                                                   Agency No. A095-002-701
          Petitioner,

     v.                                            MEMORANDUM *

LORETTA E. LYNCH, Attorney General,


          Respondent.

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

                          Argued and Submitted June 7, 2016
                                Pasadena, California

Before: GOULD, MELLOY**, and HURWITZ, Circuit Judges.

          Milton Ivan Garcia petitions for review from the dismissal by the Board of

Immigration Appeals (“BIA”) of his appeal of an order of removal.             Garcia

challenges the denial of his applications for asylum, withholding of removal, and


*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
     The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S. Court of
Appeals for the Eighth Circuit, sitting by designation.

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deferral of removal under the Convention Against Torture (“CAT”). We dismiss

the petition in part and deny in part.

      1.     Garcia pleaded guilty to felony assault with a firearm in violation of

Cal. Penal Code § 245(a)(2), and shooting at an unoccupied vehicle in violation of

Cal. Penal Code § 247(b), and was sentenced to a total of twelve years on the

assault conviction. The assault conviction was an aggravated felony. United

States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (A “conviction for

assault with a firearm under California Penal Code section 245(a)(2) is

categorically a ‘crime of violence’ and an ‘aggravated felony’ for immigration

purposes.”). It is therefore a basis for removal. 8 U.S.C. § 1227(a)(2)(A)(iii). It is

also a “particularly serious crime,” 8 U.S.C. § 1158(b)(2)(B)(i), which makes

Garcia ineligible for asylum, 8 U.S.C. §§ 1158(b)(2)(A)(ii). “Under 8 U.S.C.

§ 1252(a)(2)(C), we lack jurisdiction to consider a challenge to the removal order

that rests on a firearm conviction. But we retain jurisdiction to decide our own

jurisdiction and to resolve questions of law.” Bolanos v. Holder, 734 F.3d 875,

876 (9th Cir. 2013). Garcia raises no issue about our jurisdiction and poses no

question of law with respect to his asylum claim, and we therefore dismiss that

portion of his petition.

      2.     Withholding of removal is also not available to an alien convicted of a

“particularly serious crime.”     8 U.S.C. § 1231(b)(3)(B)(ii).     For purposes of


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withholding, “an alien who has been convicted of an aggravated felony (or

felonies) for which the alien has been sentenced to an aggregate term of

imprisonment of at least 5 years shall be considered to have committed a

particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B).

      Garcia’s assault conviction is categorically an aggravated felony. Heron-

Salinas, 566 F.3d at 899.      Because his sentence for that conviction, without

enhancements, was only three years, he argues that the conviction was not for a

particularly serious crime under § 1231(b)(3)(B).        But, the five-year inquiry

focuses on the “aggregate term of imprisonment.”          8 U.S.C. § 1231(b)(3)(B)

(emphasis added). The BIA does not abuse its discretion when it considers non-

recidivism sentencing enhancements in analyzing the “sentence imposed.” Konou

v. Holder, 750 F.3d 1120, 1127–28 (9th Cir. 2014). Garcia’s twelve-year sentence

for assault included non-recidivism enhancements for committing the crime in

connection with a criminal street gang and for using a firearm. The BIA thus made

a correct legal determination that Garcia’s assault conviction was “statutorily a

particularly serious crime,” and we also dismiss the petition insofar as it challenges

the denial of withholding. See 8 U.S.C. § 1252(a)(2)(C); Bolanos, 734 F.3d at 876.

      3.     Garcia argues that, under the factors articulated in Matter of

Frentescu, 18 I. & N. Dec. 244 (B.I.A. 1982), his assault conviction was not a

“particularly serious crime.” But, given the BIA’s conclusion that the conviction


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was statutorily a “particularly serious crime,” the agency had no occasion to

consider whether it was also one as a discretionary matter.

      4.     Garcia also argues that the IJ erred in finding that he has not

established that it is more likely than not that he will be subjected to torture upon

return to El Salvador or, in the alternative, the government will not acquiesce in his

torture. Because the IJ denied Garcia’s CAT claim “on the merits,” we have

jurisdiction to review that decision. Edu v. Holder, 624 F.3d 1137, 1141–42 (9th

Cir. 2010) (“We note that the jurisdiction-stripping provision of 8 U.S.C.

§ 1252(a)(2)(C) does not deprive us of jurisdiction over denials of deferral of

removal under the CAT, which are always decisions on the merits.” (alteration and

citation omitted)). But, we find that the record does not compel a conclusion

contrary to the IJ’s decision. See INS v. Elias-Zacharias, 502 U.S. 478, 483–84

(1992) (holding that the record must “compel[]” a contrary conclusion “to permit

reversal of a BIA finding”). We therefore deny this portion of the petition.

      PETITION DISMISSED IN PART, DENIED IN PART.




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