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David Ernesto Lopez-Cardona v. Eric H. Holder Jr.

November 18, 2011

DAVID ERNESTO LOPEZ-CARDONA, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



Agency No. A077-274-059 On Petition for Review of an Order of the Board of Immigration Appeals

The opinion of the court was delivered by: Bea, Circuit Judge:

FOR PUBLICATION

Argued and Submitted August 9, 2010

Submission Deferred August 9, 2010

Resubmitted November 10, 2011*fn1 San Francisco, California

Before: Susan P. Graber, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges.

OPINION

Opinion by Judge Bea

OPINION

David Lopez-Cardona,*fn2 a native and citizen of El Salvador, petitions for review of a decision by the Board of Immigration Appeals ("BIA") affirming a decision of the Immigration Judge ("IJ") to deny Lopez's applications for withholding of removal under 8 U.S.C. § 1231(b)(3) (the Immigration and Nationality Act, the "INA"), and withholding and deferral of removal under the Convention Against Torture ("CAT") under 8 C.F.R. §§ 1208.16-1208.18. We deny the petition.

Where, as here, the BIA adopts the IJ's decision while adding some of its own reasoning, we review both decisions. Siong v. INS, 376 F.3d 1030, 1036 (9th Cir. 2004). We review constitutional claims and questions of law de novo and review factual findings under the deferential substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary."

8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

Lopez concedes that he is removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony because he was convicted in March 2007 of three counts of first-degree residential burglary, in violation of California Penal Code § 459.*fn3 He was sentenced to three terms of four years in prison, to be served concurrently.

Second, Lopez also concedes that he is removable under 8 U.S.C. ยง 1227(a)(2)(B)(i) for having been convicted of an offense involving a controlled substance because he was convicted two separate times in February 2006 of the use of a controlled substance-methamphetamine-in violation of California Health and ...


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