Julio Cesar Elisea-Lua v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO CESAR ELISEA-LUA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1005
Agency No.
A095-111-024
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2023**
Pasadena, California
Before: BYBEE, BENNETT, and MENDOZA, Circuit Judges.
Petitioner Julio Cesar Elisea-Lua petitions for review of a Board of
Immigration Appeals (BIA) order affirming and adopting the decision of the
immigration judge (IJ) finding Elisea-Lua removable and denying his application
* 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
OCT 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252. We review the legal conclusions of the IJ and the BIA de
novo, Gutierrez v. Holder, 662 F.3d 1083, 1086 (9th Cir. 2011), and their factual
findings for substantial evidence, Lalayan v. Garland, 4 F.4th 822, 826 (9th Cir.
2021). We deny the petition.
1. Elisea-Lua first argues that the immigration court that originally ordered
his removal lacked jurisdiction because the Notice to Appear that commenced
removal proceedings did not list the date and place of those proceedings. He did
not raise this argument at any time before the BIA. Accordingly, he has failed to
exhaust administrative remedies on this issue as required by the Immigration and
Nationality Act. 8 U.S.C. § 1252(d)(1). We will therefore not consider this
contention, though we note that we have squarely rejected it in the past. See
United States v. Bastide-Hernandez, 39 F.4th 1187, 1192 (9th Cir. 2022) (en banc),
cert. denied, 143 S. Ct. 755 (2023).
2. Next, Elisea-Lua challenges the finding of the IJ that he is removable
under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated
felony. This challenge, too, is foreclosed by our precedents. We have held that
conviction under California Health & Safety Code § 11351 constitutes an
aggravated felony. Lopez v. Sessions, 901 F.3d 1071, 1075 (9th Cir. 2018).

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We find Elisea-Lua’s argument that this conclusion conflicts with Supreme
Court precedent without merit. We cannot depart from Ninth Circuit precedent
unless there is “intervening higher authority” that is “clearly irreconcilable
with . . . prior circuit authority.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). As an initial matter, Elisea-Lua cites no intervening higher
authority, because the Supreme Court case on which he relies, Descamps v. United
States, 570 U.S. 254 (2013), was decided five years before we decided Lopez.
Furthermore, far from being irreconcilable with the Supreme Court’s decision in
Descamps, Lopez relies on case law that explicitly applies Descamps. See Lopez,
901 F.3d at 1075 (citing United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th
Cir. 2014)). We therefore conclude that the holding of Lopez—that a conviction
under California Health & Safety Code § 11351 constitutes an aggravated felony
when, as here, application of the modified categorical approach establishes that
such conviction encompasses all the elements of a felony punishable under the
Controlled Substances Act—controls the outcome of this case. Elisea-Lua is
therefore removable as charged.
3. Elisea-Lua also contends that the IJ deprived him of a fair hearing in
violation of due process when he denied the motion of William Baker to withdraw
as Elisea-Lua’s counsel. Baker moved to withdraw after some difficulty in

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communicating with Elisea-Lua. When questioned by the IJ, Baker expressed his
frustration that Elisea-Lua was apparently implying that Baker was lying about
their communications. Notwithstanding the tension, Elisea-Lua requested that the
IJ deny Baker’s withdrawal motion, and Baker admitted that he could represent
Elisea-Lua. The IJ accordingly denied the motion to withdraw.
We will grant a petition for review “on due process grounds if (1) the
proceeding was so fundamentally unfair that the [noncitizen] was prevented from
reasonably presenting his case, and (2) the [noncitizen] demonstrates prejudice,
which means that the outcome of the proceeding may have been affected by the
alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir.
2006) (quotation marks and citations omitted).
Even assuming but not deciding that Elisea-Lua showed the IJ’s denial of
Baker’s withdrawal motion prevented him from reasonably presenting his case,
Elisea-Lua has not shown prejudice. He has not argued, much less shown, that the
IJ’s disposition of his case may have differed had Baker’s motion to withdraw been
granted. Id. Because Elisea-Lua did not demonstrate prejudice, Elisea-Lua’s due
process challenge fails.
4. Finally, Elisea-Lua argues that the IJ erred in the findings relevant to his
claim for protection under the CAT. The IJ determined that Elisea-Lua was not a
credible witness based on significant inconsistencies and omissions in his

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testimony. He also found that Elisea-Lua was not likely to be tortured if removed
to Mexico and therefore did not qualify for CAT protection.
These factual findings were supported by substantial evidence in the record.
The IJ’s adverse credibility finding was based on permissible factors, including
inconsistencies and omissions in Elisea-Lua’s testimony and his demeanor. See
Tamang v. Holder, 598 F.3d 1083, 1093 (9th Cir. 2010). His ruling that Elisea-
Lua was not entitled to protection under the CAT correctly acknowledged that
generalized evidence of violence and corruption in the removal state are
insufficient to establish a likelihood of torture. See Delgado-Ortiz v. Holder, 600
F.3d 1148, 1152 (9th Cir. 2010); Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th
Cir. 2016). Elisea-Lua has thus not shown that “any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). He therefore
has no claim to protection under the CAT.
PETITION DENIED.

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