Eunhea Kwak v. Merrick Garland

NOT FOR PUBLICATION FILED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
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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).
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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
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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.
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