Eunhea Kwak v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2021
• Docket: 18-73382
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EUNHEA KWAK, No. 18-73382

Petitioner, Agency No. A206-407-945

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted December 10, 2021** San Francisco, California

Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.

Eunhea Kwak, a citizen of South Korea, petitions for review of a decision by

the Board of Immigration Appeals (BIA) dismissing her appeal of an Immigration

Judge’s (IJ) order denying her applications for asylum, withholding of removal, and

relief under the Convention Against Torture (CAT). We have jurisdiction to review

* 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). Kwak’s petition under 8 U.S.C. § 1252.1 We review questions of law, and mixed

questions of law and fact, de novo. Torres v. Barr, 976 F.3d 918, 923 (9th Cir.

2020). We review factual findings for “substantial evidence.” Mairena v. Barr, 917

F.3d 1119, 1123 (9th Cir. 2019). Under that standard, we must find the BIA’s

findings sufficient unless, after reviewing the record as a whole, “any reasonable

adjudicator” would have been “compelled” to reach a different conclusion. 8 U.S.C.

§ 1252(b)(4)(B); Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021); Mairena, 917

F.3d at 1123.

1. The BIA did not err in concluding that Kwak committed a “particularly

serious crime,” and is thus statutorily ineligible for asylum and withholding of

removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); see also Delgado v.

Holder, 648 F.3d 1095, 1101 (9th Cir. 2011) (en banc). We lack jurisdiction to

review the agency’s ultimate determination that Kwak’s crime was “particularly

serious.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020). However, we retain

jurisdiction to determine whether the agency applied the correct legal standard to

1 Kwak’s petition is not moot even though she has returned to South Korea. “[A] petition for review is mooted by the petitioner’s removal from the United States unless there is ‘some remaining “collateral consequence” that may be redressed by success on the petition.’” Del Cid Marroquin v. Lynch, 823 F.3d 933, 935 (9th Cir. 2016) (per curiam) (quoting Abdala v. INS, 488 F.3d 1061, 1064 (9th Cir. 2007)). Despite Kwak’s voluntary request for removal and her subsequent removal to South Korea, the government has not shown that Kwak’s success on her petition would not provide her any benefit. See Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 n.1 (9th Cir. 2015).

2 that inquiry. Id. We review the BIA’s decision for abuse of discretion, and may

grant relief only if the agency’s decision was arbitrary, irrational, or contrary to law.

Id.

Here, the BIA properly evaluated Kwak’s crimes under the three-factor test in

Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982). See Avendano-

Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). Under Frentescu, “[t]he

factors to be considered are: (1) the nature of the conviction, (2) the type of sentence

imposed, and (3) the circumstances and underlying facts of the conviction.” Bare,

975 F.3d at 961 (quotations omitted). The agency first considered the nature of

Kwak’s arson offense, describing it as an “inherently dangerous” crime that could

have resulted in death or serious injury to persons in Kwak’s 30-story apartment

building. The agency then considered that Kwak received a suspended four-year

prison sentence and a year in jail, with credit for time served. The agency also

reviewed the circumstances of Kwak’s conviction, acknowledging her testimony

that she had not been in her “right mind” at the time of the fire, but finding that her

mental state did not excuse the serious nature of the crime. The BIA thus applied

the correct legal standard, and we may not reweigh the evidence. Avendano-

Hernandez, 800 F.3d at 1077.

2. In the alternative, the BIA determined that Kwak was not entitled to

asylum or withholding of removal because Kwak’s proposed social group—“victims

3 of sex trafficking”—was not cognizable. A “particular social group must exist

independently” of the claimed harm, and the BIA determined that the group “victims

of sex trafficking” is defined only by the harm inflicted on its members. Diaz-

Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 2020). Kwak did not address this

aspect of the BIA’s decision in her brief, and thus waived any challenge to it. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“an issue referred to

in the appellant’s statement of the case but not discussed in the body of the opening

brief is deemed waived”). Kwak has likewise waived any challenge to her claim for

deferral of removal under CAT. See id.

PETITION DENIED.