FILED NOT FOR PUBLICATION MAR 9 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVANO CANUELA LEE, No. 16-72448
Petitioner, Agency No. A203-235-910
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 7, 2022** San Francisco, California
Before: S.R. THOMAS and McKEOWN, Circuit Judges, and ORRICK,*** District Judge.
* 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 William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. Silvano Canuela Lee (“Lee”), a native and citizen of the Philippines,
petitions for review of the Board of Immigration Appeals’ (“BIA”) final removal
order denying his applications for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. §§ 1252(a)(1) and (a)(2)(D).
Because the BIA affirmed the IJ’s decision while citing Matter of Burbano,
20 I. & N. Dec. 872, 874 (BIA 1994), and adding its own analysis, we review both
the IJ and BIA decisions. Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir. 2020). We
review factual findings for substantial evidence, but review purely legal questions
de novo. Id. We review alleged due process violations, Cruz Rendon v. Holder,
603 F.3d 1104, 1109 (9th Cir. 2010), and petitioner’s statutory eligibility for
discretionary waivers de novo, Negrete-Ramirez v. Holder, 741 F.3d 1047, 1050
(9th Cir. 2014). We dismiss in part and deny in part.
I
We dismiss in part and deny in part Lee’s petitions for review of the
agency’s denial of asylum and withholding of removal. Under 8 U.S.C.
§ 1158(b)(2)(D), we may only consider petitions for review of denials of asylum
and withholding of removal under the material support bar that raise “colorable
constitutional claims or questions of law.” Rayamajhi v. Whitaker, 912 F.3d 1241,
2 1244 (9th Cir. 2019) (citation omitted). Lee’s contention that the material support
bar does not apply because he gave support to the New People’s Army (“NPA”)
under duress is foreclosed by our circuit precedent. See id. (“[T]he material
support bar does not include an implied exception for individuals who give support
to a terrorist organization while ‘under duress.’” (internal quotation marks and
citation omitted)).
Lee’s argument that the bar does not apply because the NPA was not
recognized formally as a Tier III terrorist organization until 2002 is also foreclosed
by circuit precedent. Bojnoordi v. Holder, 757 F.3d 1075, 1077 (9th Cir. 2014)
(“[T]he statutory terrorism bar applies retroactively to an alien’s material support
of a ‘Tier III’ terrorist organization” even when the group was not so recognized
when aid was given).
We deny Lee’s petition for review of the IJ’s determination that he
reasonably should have known that the NPA was a terrorist organization. See
Khan v. Holder, 584 F.3d 773, 780 (9th Cir. 2009). Substantial evidence supports
the IJ’s determination. Id. Terrorist activity includes “[t]he highjacking or
sabotage of any [vehicle],” 8 U.S.C. § 1182(a)(3)(B)(iii)(I), as well as “seizing or
detaining, and threatening to kill, injure, or continue to detain, another individual
in order to compel a third person” to take certain action, 8 U.S.C.
3 § 1182(a)(3)(B)(iii)(II). Lee testified that the NPA seized his trucks, took his
employees hostage, and threatened to detain or injure them unless he paid ransom
money. At the time, he knew the NPA had done the same to other companies, hurt
people who disobeyed their wishes, and that he was aware of “a lot” of instances
where they had harmed individuals. Because Lee otherwise fails to raise a
colorable legal or constitutional challenge to the agency’s application of the
material support bar, we lack jurisdiction to disturb its denial of asylum and
withholding of removal. See 8 U.S.C. § 1158(b)(2)(D); 8 U.S.C. § 1252(a)(2)(D).
II
We deny Lee’s petition for review of the denial of his application for CAT
relief. See Rayamajhi, 912 F.3d at 1243 (“The material support bar does not apply
to deferral of removal under CAT.”). The record does not compel concluding that
Lee “more likely than not” faces torture “with the consent or acquiescence of a
public official” if removed to the Philippines. Singh v. Whitaker, 914 F.3d 654,
662–63 (9th Cir. 2019); see also Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183
(9th Cir. 2020). Lee never experienced physical harm, was offered protection by
the Filipino authorities, lived safely in the Philippines for over a decade after his
run-in with the NPA, and does not claim he ever considered relocating for his
4 safety. “[A] speculative fear of torture is insufficient to satisfy the ‘more likely
than not’ standard.” Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir. 2021).
III
The BIA correctly determined that the IJ did not violate Lee’s due process
rights by failing to advise him that he could apply for a discretionary waiver of the
material support bar. Cruz Rendon, 603 F.3d at 1109 (reviewing de novo). “To
prevail on a due process challenge to deportation proceedings, [the petitioner] must
show error and substantial prejudice.” Grigoryan v. Barr, 959 F.3d 1233, 1240
(9th Cir. 2020) (citation omitted) (emphasis added). Substantial prejudice is
established when “the outcome of the proceeding may have been affected by the
alleged violation.” Id. (internal quotation marks omitted).
Even assuming the IJ’s failure to advise was a violation, Lee has not shown
that it affected his proceeding’s outcome. Only applicants who are “otherwise
eligible” for relief may seek discretionary exemptions for material support given
under duress. See EXERCISE OF AUTHORITY UNDER SECTION 212(D)(3)(B)(I) OF
THE IMMIGRATION AND NATIONALITY ACT, 79 Fed. Reg.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION MAR 9 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVANO CANUELA LEE, No. 16-72448
Petitioner, Agency No. A203-235-910
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 7, 2022** San Francisco, California
Before: S.R. THOMAS and McKEOWN, Circuit Judges, and ORRICK,*** District Judge.
* 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 William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. Silvano Canuela Lee (“Lee”), a native and citizen of the Philippines,
petitions for review of the Board of Immigration Appeals’ (“BIA”) final removal
order denying his applications for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. §§ 1252(a)(1) and (a)(2)(D).
Because the BIA affirmed the IJ’s decision while citing Matter of Burbano,
20 I. & N. Dec. 872, 874 (BIA 1994), and adding its own analysis, we review both
the IJ and BIA decisions. Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir. 2020). We
review factual findings for substantial evidence, but review purely legal questions
de novo. Id. We review alleged due process violations, Cruz Rendon v. Holder,
603 F.3d 1104, 1109 (9th Cir. 2010), and petitioner’s statutory eligibility for
discretionary waivers de novo, Negrete-Ramirez v. Holder, 741 F.3d 1047, 1050
(9th Cir. 2014). We dismiss in part and deny in part.
I
We dismiss in part and deny in part Lee’s petitions for review of the
agency’s denial of asylum and withholding of removal. Under 8 U.S.C.
§ 1158(b)(2)(D), we may only consider petitions for review of denials of asylum
and withholding of removal under the material support bar that raise “colorable
constitutional claims or questions of law.” Rayamajhi v. Whitaker, 912 F.3d 1241,
2 1244 (9th Cir. 2019) (citation omitted). Lee’s contention that the material support
bar does not apply because he gave support to the New People’s Army (“NPA”)
under duress is foreclosed by our circuit precedent. See id. (“[T]he material
support bar does not include an implied exception for individuals who give support
to a terrorist organization while ‘under duress.’” (internal quotation marks and
citation omitted)).
Lee’s argument that the bar does not apply because the NPA was not
recognized formally as a Tier III terrorist organization until 2002 is also foreclosed
by circuit precedent. Bojnoordi v. Holder, 757 F.3d 1075, 1077 (9th Cir. 2014)
(“[T]he statutory terrorism bar applies retroactively to an alien’s material support
of a ‘Tier III’ terrorist organization” even when the group was not so recognized
when aid was given).
We deny Lee’s petition for review of the IJ’s determination that he
reasonably should have known that the NPA was a terrorist organization. See
Khan v. Holder, 584 F.3d 773, 780 (9th Cir. 2009). Substantial evidence supports
the IJ’s determination. Id. Terrorist activity includes “[t]he highjacking or
sabotage of any [vehicle],” 8 U.S.C. § 1182(a)(3)(B)(iii)(I), as well as “seizing or
detaining, and threatening to kill, injure, or continue to detain, another individual
in order to compel a third person” to take certain action, 8 U.S.C.
3 § 1182(a)(3)(B)(iii)(II). Lee testified that the NPA seized his trucks, took his
employees hostage, and threatened to detain or injure them unless he paid ransom
money. At the time, he knew the NPA had done the same to other companies, hurt
people who disobeyed their wishes, and that he was aware of “a lot” of instances
where they had harmed individuals. Because Lee otherwise fails to raise a
colorable legal or constitutional challenge to the agency’s application of the
material support bar, we lack jurisdiction to disturb its denial of asylum and
withholding of removal. See 8 U.S.C. § 1158(b)(2)(D); 8 U.S.C. § 1252(a)(2)(D).
II
We deny Lee’s petition for review of the denial of his application for CAT
relief. See Rayamajhi, 912 F.3d at 1243 (“The material support bar does not apply
to deferral of removal under CAT.”). The record does not compel concluding that
Lee “more likely than not” faces torture “with the consent or acquiescence of a
public official” if removed to the Philippines. Singh v. Whitaker, 914 F.3d 654,
662–63 (9th Cir. 2019); see also Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183
(9th Cir. 2020). Lee never experienced physical harm, was offered protection by
the Filipino authorities, lived safely in the Philippines for over a decade after his
run-in with the NPA, and does not claim he ever considered relocating for his
4 safety. “[A] speculative fear of torture is insufficient to satisfy the ‘more likely
than not’ standard.” Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir. 2021).
III
The BIA correctly determined that the IJ did not violate Lee’s due process
rights by failing to advise him that he could apply for a discretionary waiver of the
material support bar. Cruz Rendon, 603 F.3d at 1109 (reviewing de novo). “To
prevail on a due process challenge to deportation proceedings, [the petitioner] must
show error and substantial prejudice.” Grigoryan v. Barr, 959 F.3d 1233, 1240
(9th Cir. 2020) (citation omitted) (emphasis added). Substantial prejudice is
established when “the outcome of the proceeding may have been affected by the
alleged violation.” Id. (internal quotation marks omitted).
Even assuming the IJ’s failure to advise was a violation, Lee has not shown
that it affected his proceeding’s outcome. Only applicants who are “otherwise
eligible” for relief may seek discretionary exemptions for material support given
under duress. See EXERCISE OF AUTHORITY UNDER SECTION 212(D)(3)(B)(I) OF
THE IMMIGRATION AND NATIONALITY ACT, 79 Fed. Reg. 6914-01, 2014 WL
412622 (Feb. 5, 2014) (stating that those seeking waivers must be “otherwise
eligible” for relief but for the material support bar).
5 The agency did not err in concluding that Lee failed to establish eligibility
for CAT relief. And, considered only as necessary to resolve Lee’s due process
claim, substantial evidence supports the agency’s denial of Lee’s asylum and
withholding of removal applications on their merits. See Negrete-Ramirez, 741
F.3d at 1050 (“We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the
legal question of whether [petitioners are] statutorily eligible to apply for . . .
waiver[s].”). The record does not compel the conclusion that the NPA targeted
Lee’s business due to his Chinese heritage or that the Filipino government, whose
Army protected Lee, was unable or unwilling to control the NPA. Guo v. Sessions,
897 F.3d 1208, 1213 (9th Cir. 2018) (stating elements for showing past
persecution). Nor does the record compel concluding that any subjective fear of
future persecution was objectively reasonable. Because Lee did not establish an
objective well-founded fear sufficient for asylum, he necessarily failed to satisfy
withholding of removal’s “more stringent standard” of a “clear probability” that he
will face persecution if deported. Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th
Cir. 2006).
Because Lee failed to establish his threshold eligibility for relief, he would
not have been eligible for the waiver, even if informed of it. See C.J.L.G. v. Barr,
923 F.3d 622, 627 (9th Cir. 2019) (“A failure to advise can be excused only when
6 the petitioner’s eligibility for relief is not ‘plausible.’” (citation omitted)). That the
agency had independent, alternative grounds for denying Lee’s claims on the
merits reinforces that he was not prejudiced by any procedural error in its
application of the material support bar. Pagayon v. Holder, 675 F.3d 1182,
1191–92 (9th Cir. 2011) (establishing prejudice is required).
PETITION DISMISSED in part and DENIED in part.