                            NOT FOR PUBLICATION
                                                                           FILED
                                                                            JAN 18 2017
                    UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

HUSSAIN ABDUL RAHEM K. AL                        No. 14-70205
ZUBAIDY, AKA Hussain Abdul Al
Zubaidy, AKA Abdul Rahem,                        Agency No. A071-675-306

              Petitioner,                        MEMORANDUM*

  v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                     Argued and Submitted December 13, 2016
                             San Francisco, California

Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,** District Judge.

       Petitioner Hussain Abdul Al Zubaidy (“Al Zubaidy”) petitions this Court for

review of the Board of Immigration Appeals’ (“BIA”) final order affirming the

decision of the Immigration Judge (“IJ”) denying his application for withholding of



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
           The Honorable Frederic Block, Senior District Judge for the Eastern
District of New York, sitting by designation.
removal and protection under the Convention Against Torture (“CAT”). We deny

the petition.

       1. Substantial evidence supports the BIA’s determination that Al Zubaidy

failed to show his eligibility for CAT protection. Al Zubaidy failed to present

evidence beyond mere speculation that any potential torturers in Iraq actually know

or are likely to discover his past work as a U.S. military contractor. He has not

demonstrated that anyone in Iraq saw the U.S. military commercial in which he

appeared, nor has he demonstrated that any of his family in Iraq knows of his past

work or, if they did, would share that information with others. For this reason, Al

Zubaidy has not met his burden of establishing that “he will ‘more likely than not’

be tortured if removed to his home country.” Alphonsus v. Holder, 705 F.3d 1031,

1049 (9th Cir. 2013) (quoting 8 C.F.R. § 1208.17).

       2. We review the BIA and IJ’s particularly serious crime substantive

determination for an abuse of discretion and legal challenges to that determination

de novo, Arbid v. Holder, 700 F.3d 379, 383, 385 n.3 (9th Cir. 2012), subject to

harmless error review. See, e.g., Vides-Vides v. I.N.S., 783 F.2d 1463, 1469 (9th

Cir. 1986); Larita-Martinez v. I.N.S., 220 F.3d 1092, 1095 (9th Cir. 2000). The

BIA and the IJ did not abuse their discretion in determining that Al Zubaidy’s

conviction for conspiracy to conduct enterprise affairs through a pattern of



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racketeering activity in violation of 18 U.S.C. § 1962(d) was a particularly serious

crime.

         The IJ first determined that racketeering activities, which include murder,

kidnapping, gambling, arson, robbery, bribery, extortion, and dealing in controlled

substances, 18 U.S.C. § 1961, generally fall within the ambit of particularly serious

crimes. See Mahini v. I.N.S., 779 F.2d 1419, 1421 (9th Cir. 1986) (possession and

conspiracy to distribute controlled substances); Matter of M-W-, 25 I. & N. Dec.

748, 760 (BIA 2012) (murder); Matter of L-S-J, 21 I. & N. Dec. 973, 975 (BIA

1997) (robbery with a deadly weapon). The IJ then properly considered “the

nature of the conviction, the circumstances and underlying facts of the conviction,

[and] the type of sentence imposed” to conclude that Al Zubaidy was in fact

convicted of a particularly serious crime. See Arbid, 700 F.3d at 384.

         The IJ properly considered all reliable evidence in the record, including the

criminal complaint, an FBI affidavit in support of the arrest warrant, the abstract of

judgment, and Al Zubaidy’s testimony, in making the particularly serious crime

determination. See Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010)

(“[A]ll reliable information may be considered in making a particularly serious

crime determination, including the conviction records and sentencing information,

as well as other information outside the confines of a record of conviction.”)

(quoting Matter of N-A-M, 24 I & N Dec. 336, 342 (BIA 2007)). The record

                                            3
evidence indicated that Al Zubaidy voluntarily joined a drug-trafficking

organization, acted as a drug courier for that organization, and conspired to commit

murders and robberies on behalf of the organization. The record also shows that

Al Zubaidy was sentenced to 21 months in prison. Al Zubaidy’s testimony before

the IJ that he was innocent of the charged crime conflicts with the fact of his

conviction.

      Although the IJ committed a procedural legal error by not asking Al

Zubaidy, after the plea colloquy transcript was introduced, to explain the

inconsistency between his testimony in Immigration Court and his statements

during the plea colloquy, the error was harmless. Al Zubaidy had already

explained the relevant inconsistency, between his testimony and the plea itself. He

testified that he pleaded guilty to the criminal charge because he was scared

members of the conspiracy would otherwise take his life. As the IJ and the BIA

found, this testimony was contradicted by the other evidence in the record.

      Since neither the IJ nor the BIA abused its discretion in holding that Al

Zubaidy was convicted of a particularly serious crime, and the legal error was

harmless, he was ineligible for withholding of removal.

      PETITION DENIED.




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