NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JOSE RAMOS-MENDOZA,

Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 15-73840 Agency No. A078-013-842
MEMORANDUM *

On Petition for Review of an Order of the Board of Im m igration Appeals Argued and Subm itted April 9, 2018 San Francisco, California Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA, * * District Judge. Petitioner Ram os-Mendoza seeks relief from a Board of Im m igration Appeals (“BIA”) order dism issing his appeal from an Im m igration Judge’s (“IJ”) 

# FILED
SEP 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.decision denying his application for withholding of rem oval and protection under

the Convention Against Torture (“CAT”). We have jurisdiction over his tim ely petition, 8 U.S.C. § 1252, and we deny it. I Ram os-Mendoza’s suspended Nevada sentence of twenty-four to sixty
m onths in prison qualifies as a sentence to a “term of im prisonm ent of at least 5 years.” 8 U.S.C. § 1231(b)(3)(B)(iv). We disregard the suspension of his sentence for purposes of m aking this calculation. 8 U.S.C. § 1101(a)(48)(B). We need not address the question of whether the appropriate reference is to state law, see Shaya v. Holder , 586 F.3d 401, 406 (6th Cir. 2009), or sim ply to look to the m axim umsentence, see Nguyen v. INS , 53 F.3d 310, 311 (10th Cir. 1995), because the result in this case is the sam e. Because Nevada law characterizes an indeterm inate sentence as a sen tence “ for the maximum period imposed by the court subject to term ination by parole after service of the m inim umterm ,” Spillers v. State , 436 P.2d 18, 23 (Nev. 1968) (em phasis added), overruled in part on other grounds , Bean v. State , 465 P.2d 133 (Nev. 1970), either approach confirm s that Ram os-Mendoza’s sentence is “at least 5 years,” § 1231(b)(3)(B)(iv). Accordingly, we need not, and do not, decide which approach is required; we only conclude that the BIA did not err in determ ining that Ram os-Mendoza was
2ineligible for withholding of rem oval because his “aggravated felony” conviction

resulted in a sentence of “at least 5 years.” § 1231(b)(3)(B)(ii), (iv); see also Quijada-Aguilar v. Lynch , 799 F.3d 1303, 1305–07 (9th Cir. 2015) (noting that an “aggravated felony” conviction resulting in a sentence of “at least 5 years” in prison constitutes a “particularly serious crim e,” rendering a non-citizen ineligible for withholding of rem oval). II Substantial evidence supports the BIA’s denial of relief under the CAT. Arbid v. Holder , 700 F.3d 379, 385–86 (9th Cir. 2012) (standard of review). The record indicates that LGBTQ individuals in Mexico face discrim ination at higher rates than those in the United States and that the Mexican governm ent’s enforcem ent of the country’s anti-discrim ination laws is som etim es inadequate. This evidence, however, does not com pel the conclusion that if Ram os-Mendoza is
rem oved to Mexico, he is m ore likely than not to be tortured “by or at th e instigation of or with the consent or acquiescence of a public official.” 8 C.F.R. § 1208.18(a)(1); see also Zheng v. Holder , 644 F.3d 829, 835 (9th Cir. 2011) (To reverse, “the evidence m

ust com pel a different conclusion from the one reached by the BIA.”).

3III

The BIA did not abuse its discretion in affirm ing the IJ’s denials of Ram osMendoza’s m otions for a continuance and a change of venue. Taggar v. Holder , 736 F.3d 886, 889 (9th Cir. 2013) (continuance standard of review); Baires v. INS , 856 F.2d 89, 92 (9th Cir. 1988) (change of venue standard of review). Ram osMendoza had a year to prepare for his hearing before the IJ. Nonetheless, approxim ately three weeks before this hearing, he dism issed his old attorney, and acquired a new one. Ram os-Mendoza offers no excuse for this last-m inute substitution, which form e d the basis for his m otion for a continuance. Further, he failed to establish prejudice on the record. His m otion for a change of venue suffered from evidentiary shortcom ings, in addition to being last-m inute. The evidence Ram os-Mendoza subm itted to support his claimthat he m oved from Reno, Nevada to San Francisco, California was not persuasive. Moreover, even if the BIA abused it discretion by affirm ing the IJ’s denials of these m otions, Ram os-Mendoza fails to show any prejudice. SandovalLuna v. Mukasey , 526 F.3d 1243, 1247 (9th Cir. 2008). PETITION DENIED.

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