                                                                          FILED
                            NOT FOR PUBLICATION
                                                                           NOV 18 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


JUAN CARLOS GARCIA, Juan Carlos                  No.   15-73170
Carrillo-Tecun,
                                                 Agency No. A078-739-040
              Petitioner,

       v.                                        MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.

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

                            Submitted November 8, 2016**
                                  Portland, Oregon

Before: McKEOWN, W. FLETCHER and FISHER, Circuit Judges.

      Juan Carlos Garcia petitions for review of the Board of Immigration

Appeals’ (BIA) dismissal of his appeal of an Immigration Judge’s (IJ) decision

finding him ineligible for asylum, withholding of removal and withholding under

the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252(a)(2)(D) to review constitutional claims and questions of law, and we deny

the petition.

       1. Garcia’s conviction for delivery of methamphetamine under Oregon

Revised Statutes (ORS) § 475.992 constitutes an aggravated felony, making him

ineligible for asylum. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). An aggravated

felony includes a felony controlled substance offense under the federal Controlled

Substances Act (CSA). See id. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). Although

ORS § 475.992 defines certain crimes that would not be considered felonies under

the CSA – such as simple possession – the statute is divisible as between

possession and delivery of methamphetamine because it provides different

punishments for each. See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016).

Delivery of methamphetamine is a felony under the CSA, and Garcia does not

argue Oregon defines delivery more broadly than its federal counterpart. Compare

ORS § 475.992(1)(b), with 21 U.S.C. § 841(a)(1), (b)(1)(C). Under the modified

categorical approach, therefore, Garcia’s conviction for delivery of

methamphetamine under Oregon law qualifies as an aggravated felony.

       2. The BIA and the IJ, moreover, did not abuse their discretion in

concluding Garcia was convicted of a particularly serious crime, making him

ineligible for statutory withholding and withholding under the CAT. See Arbid v.


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Holder, 700 F.3d 379, 385 (9th Cir. 2012). Garcia’s aggravated felony conviction

for delivery of methamphetamine presumptively constitutes a particularly serious

crime. See In re Y-L-, 23 I. & N. Dec. 270, 274 (A.G. 2002). Only in a “very rare

case” under “extraordinary and compelling circumstances,” can this presumption

be rebutted. Id. at 276-77. The IJ and the BIA applied the correct legal standard

and sufficiently explained why no extraordinary and compelling circumstances

rebut the presumption here. See Avendano-Hernandez v. Lynch, 800 F.3d 1072,

1077 (9th Cir. 2015); Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en

banc). We do not “reweigh the evidence” to make our own determination whether

the crime was particularly serious. Avendano-Hernandez, 800 F.3d at 1077.

Accordingly, Garcia is ineligible for withholding of removal and withholding

under the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).

      PETITION DENIED.




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