ERICK A. VIGIL, AKA Denis Rivera- Molina v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICK A. VIGIL, AKA Denis Rivera-
Molina,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 15-73598
Agency No. A094-154-672
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Erick A. Vigil, a native and citizen of El Salvador, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying withholding of removal and protection 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).
FILED
AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-73598
§ 1252. We review for substantial evidence the factual findings underlying the
agency’s denial of CAT relief. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th
Cir. 2016). We review de novo questions of law. Ahmed v. Holder, 569 F.3d
1009, 1012 (9th Cir. 2009). We deny in part and grant in part the petition for
review.
Substantial evidence supports the agency’s determination that Vigil has not
established the Salvadoran government would consent or acquiesce to any torture
he may face if returned to El Salvador. See Andrade-Garcia, 828 F.3d at 836
(general ineffectiveness of government to prevent crime and inability to bring
criminals to justice are not evidence of acquiescence). In light of this
determination, we need not address Vigil’s contentions regarding relocation. See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts not required to
make findings on issues the decision of which is unnecessary to the results).
The agency did not err in not considering the facts and circumstances of
Vigil’s conviction for reentry of a removed alien under 8 U.S.C. § 1326 to
determine if he is a danger to the community, where the agency determined his
crimes were per se particularly serious. See 8 U.S.C. § 1231(b)(3)(B) (“[A]n 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.”).

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3 15-73598
The agency denied withholding of removal based in part on the
determination that Vigil’s conviction for robbery under California Penal Code
(“CPC”) § 211 is an aggravated felony crime of violence. See 8 U.S.C.
§ 1101(a)(43)(F) (the term aggravated felony means a crime of violence as defined
in 18 U.S.C. § 16 for which the term of imprisonment is at least one year).
However, the agency did not have the benefit of intervening case law undermining
that determination. See Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding that
the definition of “crime of violence” at 18 U.S.C. § 16(b) is impermissibly vague);
United States v. Martinez-Hernandez, Nos. 16-50423 and 17-50295, 2019 WL
3332591 at *2-3 (9th Cir. July 25, 2019) (recognizing that CPC § 211 no longer
fits the definition of “crime of violence” under 18 U.S.C. § 16(a)). Thus, we
remand for the agency to consider Vigil’s eligibility for withholding of removal in
light of this intervening case law.
We decline to consider the government’s contention that CPC § 211 is a
categorical aggravated felony theft offense, where the BIA did not rely on this
ground. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (court’s
review is limited to the actual grounds relied upon by the BIA).
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.

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