Luamseejun v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 12, 2024
• Docket: 22-721
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WATCHARIN LUAMSEEJUN, No. 22-721 Agency No. Petitioner, A207-134-862 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted October 22, 2024 Pasadena, California

Before: TALLMAN, R. NELSON, and BRESS, Circuit Judges.

Watcharin Luamseejun asked the Board of Immigration Appeals to reopen

her removal proceedings. She claimed her prior counsel provided ineffective

assistance by failing to introduce additional evidence to support her asylum,

withholding of removal, and Convention Against Torture claims. The BIA denied

the motion to reopen. Luamseejun petitions for our review of that denial. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. jurisdiction under 8 U.S.C. § 1252. We deny the petition.

1. When denying the motion to reopen, the BIA did not “directly

adjudge[]” whether Luamseejun’s crime was particularly serious. Cf. Maravilla-

Maravilla v. Ashcroft, 381 F.3d 855, 859 (9th Cir. 2004) (on a motion to reopen,

the BIA should not “directly adjudge[] . . . whether petitioners would win or lose

their claim”). Instead, the BIA compared Luamseejun’s new evidence to the

evidence presented during the initial removal proceedings and to the reasons the IJ

and the BIA initially gave for denying relief. Because the new evidence was either

cumulative of evidence that the agency previously considered or not relevant to the

factors the BIA deemed material, the BIA held that the new evidence “could [not]

change” the outcome of the proceedings. In other words, in ruling on

Luamseejun’s motion to reopen, the BIA asked whether the new evidence “may

have affected the outcome” of the removal proceedings. See Jie Lin v. Ashcroft,

377 F.3d 1014, 1024 (9th Cir. 2004) (emphasis and quotation omitted). The BIA

did not apply an incorrect standard in determining whether counsel’s omissions

were prejudicial. Id.

2. Luamseejun’s new evidence could not have changed the agency’s

determination that her sex-trafficking offense is particularly serious. See 8 U.S.C.

§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).

Luamseejun points to evidence that she was initially a victim of sex

2 22-721 trafficking, she cooperated with the government after her arrest, and she received a

significant downward departure at sentencing. But evidence of these facts was

presented to the IJ and the BIA during the initial proceedings. Indeed, we have

already recognized that the BIA properly considered most of these facts when

denying Luamseejun’s previous petition for review. Luamseejun v. Garland, No.

21-70496, 2022 WL 1403680, at *1 (9th Cir. May 4, 2022). Because additional

documentation of these facts would have been cumulative, counsel’s failure to

present such evidence was not prejudicial. See Blanco v. Mukasey, 518 F.3d 714,

722 (9th Cir. 2008) (finding no prejudice when counsel failed to call a witness to

introduce cumulative testimony); Barraza-Rivera v. INS, 913 F.2d 1443, 1448–49

(9th Cir. 1990) (finding no prejudice when the agency failed to discuss facts that

were already presented).

Luamseejun next points to evidence of her life story that “contextualizes”

her decision to engage in sex-trafficking. She also notes that the sentencing judge

opined that deportation was not in her “best interests” and would be unjust.

This evidence, however, is not relevant to the factors the BIA deemed

material. See Bare v. Barr, 975 F.3d 952, 961, 966 (9th Cir. 2020) (noting courts

lack jurisdiction to determine whether a crime is particularly serious). The IJ and

the BIA deemed Luamseejun’s crime particularly serious because she voluntarily

rose through the ranks of an international sex ring, became a house boss, profited

3 22-721 from prostitution, used “force, fraud, and coercion” to compel women to engage in

sex acts, and was sentenced to 47 months’ imprisonment. Luamseejun’s additional

detail about her backstory and the sentencing judge’s opinion do not negate these

facts. Thus, we cannot say that introducing that evidence may have changed the

outcome of the proceedings. See Iturribarria v. INS, 321 F.3d 889, 902 (9th Cir.

2003).

3. Nor could Luamseejun’s new evidence change the outcome of her

claim for relief under the Convention Against Torture. The IJ and the BIA denied

Luamseejun’s CAT claim because she failed to show that the Thai government

would acquiesce to acts amounting to torture. Additional evidence that a

codefendant threatened Luamseejun while in the United States and that the United

States government took those threats seriously does not bear on that dispositive

holding. Thus, counsel’s decision to omit that evidence was not prejudicial.

4. Luamseejun also claims the BIA violated her due-process rights by

discounting her new evidence when ruling on the motion to reopen. But we

presume the BIA considered all the evidence presented. Lartia-Martinez v. INS,

220 F.3d 1092, 1095–96 (9th Cir. 2000). Luamseejun cannot overcome that

presumption because the BIA discussed the new evidence in its decision. And

even if Luamseejun could show that the BIA was wrong to discount her evidence

as cumulative and irrelevant, which she has not, that itself would not amount to a

4 22-721 violation of due process. Bridges v. Wixon, 326 U.S. 135, 156 (1945) (“[T]he alien

does not prove he had an unfair hearing merely by proving the decision to be

wrong.”).

PETITION DENIED.1

1 Luamseejun’s motion to stay removal, Dkt. 3, is denied. The temporary stay of removal shall remain in place until the mandate issues.

5 22-721