Milton Garcia v. Loretta E. Lynch

MEMORANDUM

Milton Ivan Garcia petitions for review from the dismissal by the Board of Immigration Appeals (“BIA”) of his appeal of an order of removal. Garcia challenges the denial of his applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (“CAT”). We dismiss the petition in part and deny in part.

1. Garcia pleaded guilty to felony assault with a firearm in violation of Cal. Penal Code § 245 (a)(2), and shooting at an unoccupied vehicle in violation of Cal. Penal Code § 247 (b), and was sentenced to a total of twelve years on the assault conviction. The assault conviction was an aggravated felony. United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (A “conviction for assault with a firearm under California Penal Code section 245(a)(2) is categorically a ‘crime of violence’ and an ‘aggravated felony’ for immigration purposes.”). It is therefore a basis for removal. 8 U.S.C. § 1227 (a)(2)(A)(iii). It is also a “particularly serious crime,” 8 U.S.C. § 1158 (b)(2)(B)(i), which makes Garcia ineligible for asylum, 8 U.S.C. §§ 1158 (b)(2)(A)(ii). “Under 8 U.S.C. § 1252 (a)(2)(C), we lack jurisdiction to consider a…