NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENGE LEMO GAHANO, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 18-72796 

19-70403 

Agency No. A071-771-751 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 10, 2020

Anchorage, Alaska

Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.

Petitioner Denge Lemo Gahano, a native and citizen of Ethiopia, petitions 

for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his 

appeal from an immigration judge’s (“IJ”) removal order and denying his motion 

to reconsider. We have jurisdiction under 8 U.S.C. § 1252(b). For the reasons that 

follow, we deny the petition. 

1. Petitioner contends that the agency erred when it concluded that his 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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three convictions under Oregon Revised Statute (“ORS”) §163.190 for 

misdemeanor menacing, each with a one-year sentence, were aggravated felonies

rendering him ineligible for asylum and cancellation of removal. We review de 

novo whether an offense constitutes an aggravated felony, Roman-Suaste v. 

Holder, 766 F.3d 1035, 1038 (9th Cir. 2014), and “for abuse of discretion the 

BIA’s conclusion that an offense constitutes a particularly serious crime.” 

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015).

That ORS § 163.190 is classified as a misdemeanor is irrelevant. A

conviction for a crime of violence is classified as an aggravated felony if the term 

of imprisonment is at least one year. United States v. Alvarez-Gutierrez, 394 F.3d 

1241, 1242–43, 1245 (9th Cir. 2005); see also 8 U.S.C § 1101(a)(43)(F) (including 

“crime of violence” within the definition of aggravated felony). To determine 

whether an ORS § 163.190 menacing conviction is a crime of violence, we apply

the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990). 

See Flores-Vega v. Barr, 952 F.3d 878, 882 (9th Cir. 2019). Federal criminal law 

defines a crime of violence as “an offense that has as an element the . . . threatened 

use of physical force against the person or property of another[.]” 18 U.S.C. § 

16(a). We have interpreted this definition to require an intentional threat of 

violent, active force. See United States v. Melchor-Meceno, 620 F.3d 1180, 1183–

84 (9th Cir. 2010).
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ORS § 163.190 satisfies both the requisite mens rea and actus rea of a 

federal crime of violence. The statute states that “[a] person commits the crime of 

menacing if by word or conduct the person intentionally attempts to place another 

person in fear of imminent serious physical injury.” ORS § 163.190(1) (emphases 

added). We have consistently held that other assault and threatening statutes 

similar to O.R.S. § 163.190 satisfy the requisite actus rea for a crime of violence.

See, e.g., Melchor-Meceno, 620 F.3d at 1184–85; United States v. Cabrera-Perez, 

751 F.3d 1000, 1007 (9th Cir. 2014) (holding “[i]ntentionally placing another 

person in reasonable apprehension of imminent physical injury” is a threatened use 

of physical force against another). The agency therefore correctly determined that

petitioner’s convictions under ORS § 163.190 are aggravated felonies.

Furthermore, the agency did not abuse its discretion in determining that 

petitioner’s menacing convictions constituted a particularly serious crime making 

him ineligible for withholding of removal. The agency weighed the appropriate 

factors pursuant to In re Frentescu, 18 I. & N. Dec. 244 (BIA 1982), but was not 

required to weigh whether he is a future danger to the community. See, e.g., 

Anaya-Ortiz v. Holder, 594 F.3d 673, 679 (9th Cir. 2010).

2. Petitioner also seeks withholding of removal under the Convention 

Against Torture (“CAT”). We review the agency’s determination that an applicant 

is not eligible for relief under CAT for substantial evidence. Arteaga v. Mukasey, 
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511 F.3d 940, 944 (9th Cir. 2007). Although petitioner provides evidence of some 

violent political unrest in the Oromia and Amhara regions of Ethiopia, he does not 

establish the individualized risk of torture required for CAT relief, see Almaghzar 

v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006) (holding reports that torture 

occurs in a country alone does not compel the conclusion that an alien would be 

individually subject to torture), or provide evidence why he could not safely 

relocate to a different area of Ethiopia.

3. Finally, petitioner challenges the BIA’s denial of a waiver of 

inadmissibility that would allow him to potentially adjust his status to permanent 

resident and avoid removal. Aliens who have committed crimes of violence, as 

defined by 18 U.S.C. § 16, are generally inadmissible. 8 U.S.C. §§ 1182(a)(2)(E), 

1101(h)(2). But aliens with a close citizen relative are eligible for a waiver of this 

inadmissibility determination if they can show “extreme hardship” to a qualifying 

family member if they were removed. 8 U.S.C § 1182(h)(1)(B).

Petitioner contends that one of his adult children would suffer extreme 

hardship because of his medical history and psychological conditions if petitioner 

were removed, and because the BIA relied solely on a record that did not contain 

his testimony when it determined there was no extreme hardship, the BIA violated 

his due process rights to a full and fair hearing.

An alien facing removal is entitled to a full and fair hearing with a 
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reasonable opportunity to present evidence on their behalf. 8 U.S.C. § 

1229a(b)(4); see also Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000) (“The 

Fifth Amendment guarantees due process in deportation proceedings.”). “For [this 

court] to grant the petition for review on due process grounds, [an alien] must show 

prejudice[.]” Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005). A 

finding of prejudice “does not demand absolute certainty,” but only requires the 

alien to show a due process violation “potentially affect[ed] the outcome of the 

proceedings.” Id. at 1077 (alteration adopted) (emphasis in original).

We conclude petitioner would not be eligible for a waiver of inadmissibility 

regardless of any testimony, making the error nonprejudicial. To show prejudice, 

petitioner must establish “plausible grounds on which he could have been granted 

relief.” United States v. Reyes-Bonilla, 671 F.3d 1036, 1049 (9th Cir. 2012) 

(internal quotation marks omitted). In his briefing to the agency, Petitioner

discussed the hardship his family would face upon his removal, but none of the 

record evidence supports his contention that that one of his adult children would 

suffer the extreme hardship he now claims his testimony would establish. Because 

petitioner did not establish a “plausible claim” of extreme hardship, the substantial 

evidence contradicting his claim of extreme hardship forecloses a viable claim of 

prejudice, and his due process claim fails. Id.

PETITION DENIED.