NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARVIN GEOVANI ZUNIGA JOHNSON, Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 22

- 1114 Agency No. A094

- 297

- 137

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals
Submitted August 16, 2023 ** Pasadena , California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges

. Marvin Geovani Zuniga Johnson, a native and citizen of Honduras, petitions for review of the denial of his application for withholding of removal.
A fter a n immigration judge (IJ) denied his application , the Board of Immigration Appeals (BIA) dismiss ed his appeal . Another panel of this court

* 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 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 22

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remanded to the BIA to address, among other things, whether the facts and circumstances of Zuniga Johnson’s underlying conviction justified the presumption of dangerousness

. On remand, the BIA concluded that Zuniga
Jo hnson presented a danger to the community and dismissed the appeal. Because the parties are familiar with the facts, we do not restate them here. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
We review for abuse of discreti on the agency ’ s particularly serious crime
determination. Avendano

- Hernandez v. Lynch , 800 F.3d 1072, 1077 (9th Cir. 2015). We review for substantial evidence the agency ’ s factual findings. Zehatye v. Gonzales , 453 F.3d 1182, 1184

– 85 (9th Cir. 2006).
On remand, t he agency did not abuse its discretion in determining that Zuniga Johnson’s conviction under California Penal Code § 2 61 .5 (c) was a particularly serious crime that barred him from eligibility for withholding of
removal because it applied the appro priate factors to weigh the seriousness of
the crime in a case

- specific inquiry. See Avendano

- Hernandez , 800 F.3d at 1077 (“Our review is limited to ensuring that the agency relied on the appropriate factors and proper evidence to reach [its] conclusion.” (internal quotation marks , citations , and alteration omitted)); see also 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2)

. T o determine whether a crime is particularly serious, the BIA applies Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982), and ask s if “the nature of the conviction, the underlying facts and circumstances and the sentence3 22

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imposed justify the presumption that the convicted immigrant is a danger to the community.” Delgado v. Holder , 648 F.3d 109 5, 1107 (9th Cir. 2011) (en banc). Here, t he agency considered : (1) Zuniga Johnson’s and the victim’s
ages; (2) the absence of any preexisting romantic relationship between them ; (3) Zuniga Johnson’s admission that he suspected the victim was underage ; (4 ) the state’s burden to prove that he “did not reasonably and actually believe”
the victim was 18 or older ; and (5) his felony conviction and sentence to imprisonment for 365 days. The BIA concluded that in light of “ the nature of the conviction, the unde rlying facts and circumstances and the sentence imposed . . . [,] the presumption that [Zuniga Johnson] is a danger to the community is justified.” The BIA then considered Zuniga Johnson ’s arguments, including his assertions that he was induced by his att orney to accept the plea deal and that he had a good faith belief the victim was not a minor, but the BIA ultimately found that Zuniga Johnson failed to overcome the presumption of dangerousness

. Because the agency applied the correct legal
framework and based its decision on proper evidence, it did not abuse its
discretion.
Z uniga Johnson’s remaining arguments are without meri t. The agency permissibly relied on the record of Zuniga Johnson’s guilty plea and conviction. See, e.g. , Ocon

- Perez v. INS , 550 F.2d 1153, 1154 (9th Cir. 1977) (per curiam) (explaining that immigration authorities have “ no power to adjudicate the validity of state convictions underlying deportation proceedings ”); Matter of4 22

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Madrigal

- Calvo , 21 I. & N. Dec. 323, 327 (BIA 1996) (“[ T]he Immigration Judge and this Board cannot entertain a collateral attack on a judgment of conviction unless that judgment is void on its face, and cannot go behind the judicial record to determine the guilt or innocence of the alien.”). Zuniga
Johnson presented no other evidence to rebut the presumption of dangerousness, and his remaining arguments ask us to reweigh the facts and circumstances of his conviction, which we lack jurisdiction to do. See Avendano

- Hernandez , 800 F.3d at 1077

. PETITION DENIED
. 1

1 Zuniga Johnson’s motion to stay removal (Dkt. 9) is denied and the temporary stay of removal remains in place until issuance of the mandate, see General Order 6.4(c)

.