DENSER AKA AKA v. SESSIONS III (2017)

MEMORANDUM ***

Stefan Denser petitions for review of the Board of Immigration Appeals’ decision affirming the denial of his application for withholding of removal. We have no jurisdiction to consider Denser’s factual argument that his conviction was not for a “particularly serious” crime. See Pechenkov v. Holder, 705 F.3d 444, 448-49 (9th Cir. 2012). We do have jurisdiction to consider his legal argument—that the BIA applied an incorrect legal test—and we consider that argument de novo. See 8 U.S.C. § 1252(a)(2)(D); Brezilien v. Holder, 569 F.3d 403, 410-11 (9th Cir. 2009). But because we have already determined that the challenged test is valid, Denser cannot succeed. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 944-49 (9th Cir. 2007) (reviewing and upholding the test described in In re Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270 (2002), overruled on other grounds by Zheng v. Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003) ); see also Rendon v. Mukasey, 520 F.3d 967, 973-76 (9th Cir. 2008) (upholding a removal order under application of the test in In re Y-L-).

DISMISSED in part and DENIED in part.