Watcharin Luamseejun v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WATCHARIN LUAMSEEJUN, No. 21-70496
Petitioner, Agency No. 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 April 14, 2022
Pasadena, California
Before: CALLAHAN and VANDYKE, Circuit Judges, and ARTERTON,**
District Judge.
Watcharin Luamseejun petitions for review of the Board of Immigration
Appeals’ (“BIA”) determinations that she committed particularly serious crimes
that render her ineligible for withholding of removal and that she is not eligible for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
deferral of removal under the Convention Against Torture (“CAT”). Our
jurisdiction is governed by 8 U.S.C. § 1252. We dismiss the petition in part and
deny it in part.
1. Luamseejun argues that the BIA incorrectly applied the proper legal
standard in determining that she had been convicted of a “particularly serious
crime” rendering her ineligible for withholding of removal.
8 U.S.C. § 1231(b)(3)(B)(ii). This court lacks “jurisdiction over the BIA’s
ultimate determination that [the petitioner] committed a particularly serious
crime,” but retains “jurisdiction to determine whether the BIA applied the correct
legal standard.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (internal
quotation marks and citation omitted); 8 U.S.C. § 1252(a)(2)(B)(ii). We review
the BIA’s determination for abuse of discretion. Bare, 975 F.3d at 961. “[O]ur
review is limited to ensuring that the agency relied on the appropriate factors and
proper evidence to reach this conclusion.” Id. (internal quotation marks, citation,
and alteration omitted).
Noncitizens who have “been convicted of an aggravated felony (or felonies)
for which the alien has been sentenced to an aggregate term of imprisonment of at
least 5 years shall be considered to have committed a particularly serious crime,”
but the Attorney General retains discretion to determine that a noncitizen has
committed a particularly serious crime “notwithstanding the length of sentence
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imposed.” 8 U.S.C. § 1231(b)(3)(B). In exercising this discretion, the BIA
considers three factors: “(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 (internal quotation marks and citation omitted).
Luamseejun fails to demonstrate that the BIA abused its discretion. While
Luamseejun received a sentence of less than five years for her convictions for
conspiracy to commit sex trafficking (18 U.S.C. § 1594(c)) and money laundering
(18 U.S.C. § 1956(h)), the facts and circumstances of her crimes adequately
supported the finding by the immigration judge (“IJ”) that her crimes were
particularly serious. Specifically, Luamseejun sought out a leadership role in a
trafficking ring, became a high-level participant as a “house boss,” purchased a
stake in the operations of the smuggling ring, advertised and ran the day-to-day
operation of a house of prostitution, and engaged in trafficking herself by
purchasing the bondage debts of women who had been trafficked into the country.
The IJ’s reliance on Luamseejun’s plea agreement as a source of these facts was
not an abuse of discretion. Further, the BIA either explicitly or implicitly
considered her mitigation arguments, including her lenient sentence and the fact
that she was previously a victim of the same trafficking ring. See Larita-Martinez
v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000) (noting the presumption that the
BIA has considered all relevant evidence in the record). Finally, while
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Luamseejun states that her mental health suffered when she was a victim of the
trafficking ring, there is nothing in the record that suggests that her impaired
mental health caused her to commit her crimes. See Benedicto v. Garland, 12
F.4th 1049, 1063 (9th Cir. 2021). For these reasons, Luamseejun’s petition for
review of the BIA’s particularly serious crime determination is denied.
2. Luamseejun contends that even if she is not eligible for withholding
of removal, the BIA erred in denying her deferral of removal under CAT. This
court reviews “for substantial evidence the factual findings underlying the BIA’s
determination that an applicant is not eligible for CAT protection.” Xochihua-
Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). “[F]or 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.” Zheng v. Holder, 644 F.3d 829, 835
(9th Cir. 2011). “To be eligible for relief under CAT, an applicant bears the
burden of establishing that she will more likely than not be tortured with the
consent or acquiescence of a public official if removed to her native country.”
Xochihua-Jaimes, 962 F.3d at 1183; see also 8 C.F.R. § 1208.16(c).
Luamseejun fails to show that the evidence in the record compels the
conclusion that she was eligible for CAT relief. Her claim that she would be
tortured relies on her own speculation that what may have been legitimate, lawful
visits to her family by Thai police instead constituted efforts by the trafficking ring
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to intimidate her, and that government officials falsified her uncle’s cause of death
to cover up the fact that the traffickers killed him. Nor do the country conditions
report or her observations of Thai government officials acting in a corrupt manner
compel the conclusion that Thai officials would specifically acquiesce in
Luamseejun’s torture, particularly given that the country conditions report also
indicates that Thailand has stepped up efforts to combat human trafficking. See
B.R. v. Garland, 26 F.4th 827, 844 (9th Cir. 2022) (“Evidence of future
acquiescence by public officials should be sufficiently related to the sources of
petitioner’s likely torture.”).
Luamseejun also attempts to raise a new argument in her petition that the
government should be estopped from contesting that she would be tortured if
removed to Thailand because federal prosecutors issued her a general warning that
cooperators face a risk of retaliation as part of her criminal case. Because
Luamseejun failed to raise this argument before the BIA, we lack jurisdiction to
consider it and must dismiss this part of the petition. 8 U.S.C. § 1252(d)(1);
Vargas v. INS, 831 F.2d 906, 907–08 (9th Cir. 1987).
Finally, Luamseejun requests that the court take judicial notice of certain
emails concerning threats she received from another inmate while in federal
custody. Because our review is limited to the record that was before the BIA,
8 U.S.C. § 1252(b)(4)(A), we deny the request.
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The petition for review is DISMISSED in part and DENIED in part.
Luamseejun’s pending motion for a stay of removal is DENIED as moot.
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