NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER SOFIA MENDEZ GUEVARA, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 15-72290 

Agency No. A088-968-939 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submission Deferred November 21, 2022

Submitted February 8, 2024

**

San Francisco, California

Before: GRABER and OWENS, Circuit Judges, and BATAILLON,*** District 

Judge.

Petitioner Jennifer Sofia Mendez Guevara, a native and citizen of Honduras, 

* 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).

*** The Honorable Joseph F. Bataillon, United States District Judge for 

the District of Nebraska, sitting by designation.

FILED

FEB 12 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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entered the United States in 1993 without inspection. She conceded removability 

but sought asylum, withholding of removal, and protection under the Convention 

Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”) dismissed 

her appeal from an immigration judge’s (“IJ”) denial of asylum and withholding of 

removal. In addition, the BIA sustained the government’s appeal of the IJ’s grant 

of deferral of removal under CAT. Petitioner timely seeks our review. We deny 

the petition.

1. The BIA determined that Petitioner’s conviction for grand theft 

constituted a particularly serious crime, rendering her ineligible for asylum and 

withholding of removal. 8 U.S.C. § 1231(b)(3)(B)(ii); see also AvendanoHernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (“We have jurisdiction 

to review for abuse of discretion the BIA’s conclusion that an offense constitutes a 

particularly serious crime.”). We reverse only “if the BIA acted arbitrarily, 

irrationally, or contrary to law.” Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 

2012) (per curiam) (citation and internal quotation marks omitted).

Because Petitioner’s conviction did not result in an aggregate sentence of 

imprisonment of at least five years, the BIA conducted a case-specific analysis that 

considered “(1) the nature of the conviction, (2) the type of sentence imposed, and 

(3) the circumstances and underlying facts of the conviction.” Bare v. Barr, 975 

F.3d 952, 961 (9th Cir. 2020) (citation and internal quotation marks omitted). The 
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BIA properly concluded that it was not necessary to determine whether Petitioner 

had been convicted of grand theft in violation of section 487 of the California 

Penal Code (“CPC”) or robbery in violation of section 211 of the CPC. Under 

either statute, the elements of the offense “potentially bring the crime into a 

category of particularly serious crimes.” Mendoza-Garcia v. Garland, 36 F.4th 

989, 999 (9th Cir. 2022) (quoting In re N-A-M-, 24 I&N Dec. 336, 342 (BIA 

2007)) (internal quotation marks omitted). Relying on its prior decision, the BIA 

also considered Petitioner’s sentence and the facts and circumstances of the crime, 

which included Petitioner’s brandishing a knife at a clerk while robbing a 

convenience store. This court may not “reweigh the evidence” to arrive at our own 

conclusion about the crime’s seriousness. Avendano-Hernandez, 800 F.3d at 1077. 

Here, the BIA considered the appropriate factors and did not abuse its discretion in 

concluding that Petitioner was ineligible for asylum and withholding of removal 

because of her conviction for a particularly serious crime. 

2. In addition, the BIA permissibly concluded that Petitioner demonstrated 

neither that she is more likely than not to face torture if returned to Honduras nor 

that any torture would be with the consent or acquiescence of governmental 

officials. See 8 C.F.R. § 208.16(c)(2) (placing the burden of proof on the 

applicant). We review the BIA’s denial of CAT relief for substantial evidence. 

Benedicto v. Garland, 12 F.4th 1049, 1063 (9th Cir. 2021). Petitioner fears 
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persecution and torture because of her sexual orientation; she is a lesbian. But the 

record demonstrates that Petitioner does not know anyone in Honduras who would 

want to harm her—including anyone in the Honduran government. Nor has 

Petitioner suffered past torture in Honduras. 

Petitioner asserts that she has heard of lesbians being subject to mistreatment 

and violence in Honduras and cites country-conditions evidence showing that 

LGBTQ people have been murdered. Nonetheless, the record contains 

countervailing evidence, including a 2011 State Department Human Rights Report 

for Honduras that details the Honduran government’s creation of a special task 

force designed to address violent crimes against vulnerable communities—

including LGBTQ people. In view of that evidence, the record does not compel a 

conclusion contrary to the BIA’s findings. See Zheng v. Holder, 644 F.3d 829, 

835 (9th Cir. 2011) (“In order for this court to reverse the BIA with respect to a 

finding of fact, the evidence must compel a different conclusion from the one 

reached by the BIA.”). Accordingly, the BIA’s decision to deny deferral of 

removal under CAT is supported by substantial evidence. 

PETITION DENIED. The stay of removal remains in place until the 

mandate issues.