TRINIDAD MARTINEZ-SANDOVAL, AKA Marvin Martinez Sandoval, AKA Trinidad Martinez Sandoval v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRINIDAD MARTINEZ-SANDOVAL,
AKA Marvin Martinez Sandoval, AKA
Trinidad Martinez Sandoval,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-71994
Agency No. A200-153-740
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2019**
Pasadena, California
Before: SCHROEDER, FRIEDLAND, and R. NELSON, Circuit Judges.
Trinidad Martinez-Sandoval, a native and citizen of Guatemala, seeks
review of the Board of Immigration Appeals’ (“BIA”) final removal order,
dismissing his appeal from the immigration judge’s (“IJ”) decision denying his
* 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).
FILED
NOV 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
applications for withholding of removal and for protection under the Convention
Against Torture (“CAT”). As the parties are familiar with the facts, we do not
recount them here. We have jurisdiction under 8 U.S.C. § 1252(a). We review the
agency’s denial of a motion for a continuance for abuse of discretion. Ahmed v.
Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). Additionally, we review the BIA’s
particularly serious crime determination for abuse of discretion and review the
denial of withholding and CAT relief for substantial evidence. Konou v. Holder,
750 F.3d 1120, 1124, 1127 (9th Cir. 2014). We deny the petition for review.
First, the BIA did not abuse its discretion in denying Martinez’s request for a
continuance. The conviction records and police reports that the IJ considered were
admitted in the removal proceedings. Moreover, Martinez had ample notice that
they would be considered in the context of the particularly serious crime
determination. Because Martinez had a reasonable opportunity to investigate the
conviction records and police reports prior to the removal proceeding, the agency
did not abuse its discretion in denying Martinez’s continuance request. See
Bondarenko v. Holder, 733 F.3d 899, 907 (9th Cir. 2013).
Second, the BIA also did not abuse its discretion in affirming the IJ’s
conclusion that Petitioner’s assault conviction under California’s Penal Code § 240
qualifies as a particularly serious crime, rendering him statutorily ineligible for
withholding of removal and withholding under the CAT. Our review is limited to

-- 2 of 3 --

3
whether the agency relied on the appropriate factors and proper
evidence. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir.
2015) (the court may not reweigh the evidence and reach its own conclusion in
review of the agency’s particularly serious crime designation). Here, the BIA and
the IJ considered the relevant factors and applied them to the record evidence and
there is no indication that the agency acted “arbitrarily, irrationally, or contrary to
law.” Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012). See also Konou, 750
F.3d at 1126–27 (listing factors to consider in determining whether a crime is
particularly serious).
Third, substantial evidence supports the BIA’s denial of deferral of removal
under the CAT because Petitioner failed to establish that it is more likely than not
that he will be tortured by or with the acquiescence of the government of
Guatemala.1
The petition for review is DENIED.
1 The United States Supreme Court recently granted certiorari in Nasrallah v. Barr,
No. 18-1432 (Oct. 18, 2019), which presents the question “[w]hether,
notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to
review factual findings underlying denials of withholding (and deferral) of removal
relief.” Petition for a Writ of Certiorari, Nasrallah v. Barr, No. 18-1432 (May 14,
2019). We decide this case in accordance with current Ninth Circuit precedent,
under which we have jurisdiction over Petitioner’s challenge to the denial of
deferral of removal under the CAT. See Pechenkov v. Holder, 705 F.3d 444, 448
(9th Cir. 2012). Because any determination by the Supreme Court that we lack
jurisdiction would have no effect on the outcome of this case, we proceed under
our existing caselaw.

-- 3 of 3 --