Kwang Park v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KWANG HYEN PARK, No. 21-70623
Petitioner, Agency No.
A089-695-765
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2022
Pasadena, California
Filed June 29, 2023
Before: Ryan D. Nelson, Bridget S. Bade, and Danielle J.
Forrest, Circuit Judges.
Opinion by Judge Forrest
2 PARK V. GARLAND
SUMMARY *
Immigration
Denying Kwang Park’s petition for review of a decision
of the Board of Immigration Appeals, the panel held that the
BIA applied the proper legal standard in denying
withholding of removal and that the BIA properly denied
relief under the Convention Against Torture (CAT).
Park pleaded guilty to 13 drug-related charges, including
possession of cocaine for sale under California Health and
Safety Code § 11351. In removal proceedings, the agency
found Park removable for having committed a drug-
trafficking aggravated felony and for having committed a
controlled-substance offense. Applying the presumption
established in Matter of Y-L-, 23 I. & N. Dec. 270 (A.G.
2002)—that drug-trafficking offenses are particularly
serious crimes—the agency concluded that Park’s § 11351
conviction was a particularly serious crime that barred
withholding. The agency also denied CAT relief.
Addressing Park’s contention that the agency applied the
wrong standard to its particularly-serious-crime
determination, the panel explained that, in Matter of Y-L-,
the Attorney General instructed that aggravated felonies
involving illicit drug trafficking are presumptively
particularly serious crimes and that this presumption may be
overcome only in the most extenuating circumstances that
are both extraordinary and compelling. The panel noted that
the BIA’s particularly-serious-crime analysis here was
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PARK V. GARLAND 3
cursory, but concluded that the BIA applied Matter of Y-L-
’s presumption and that the BIA’s decision was supported by
adequate reasoning. Observing that neither the IJ nor the
BIA recited the Matter of Y-L- criteria, the panel explained
that they are not required to do so. The panel also noted that
the BIA considered facts not directly referenced in Matter of
Y-L-’s minimum factors, but explained that those criteria
were not exhaustive.
The panel further concluded that, even if it had found
that the BIA erred by considering facts not expressly
incorporated into Matter of Y-L-’s minimum standard, it
would still deny Park’s petition because it was a legal
certainty that Park could not satisfy Matter of Y-L-’s
minimum criteria. Thus, the panel concluded that this was
one of those narrow circumstances where remand was
unwarranted because the law dictates the outcome that the
agency must reach.
As to CAT relief, Park alleged that the BIA committed
multiple errors in denying such relief. First, Park argued that
the BIA exceeded its regulatory authority by impermissibly
engaging in predictive fact-finding. This argument was
premised on the IJ’s misstatement that Park had not shown
that he would be tortured on account of a protected
ground. The panel rejected that contention, explaining that
the BIA did precisely what it is required to do: it concluded
that the IJ’s predictive factual findings were not clearly
erroneous, and then considered whether those facts
constituted torture and concluded that Park had not
established it is more likely than not he will be subject to
torture either for refusing to do or agreeing to perform
military service, or due to his convictions in the United
States.
4 PARK V. GARLAND
The panel also concluded that the BIA corrected the IJ’s
misstatement of the legal standard for CAT relief, explaining
that the BIA found that Park nonetheless failed to establish
that it is more likely than not he will be tortured, regardless
of the basis, upon his removal to South Korea. Thus, the
panel concluded that the IJ’s legal error did not undermine
its factual findings and was cured when the BIA applied the
correct legal standard to the facts found by the IJ.
The panel also rejected Park’s contention that the BIA
failed to provide a reasoned explanation for its decision,
explaining that this argument was based on the mistaken
view that the panel could review only the BIA’s
decision. The panel concluded that, when read alongside the
IJ’s multi-page CAT analysis, the BIA’s decision adequately
conveyed the reasoning behind the denial of CAT relief.
Turning to the merits of Park’s CAT claim, the panel
concluded that substantial evidence supported the agency’s
determination that Park is unlikely to be tortured because of
his California drug convictions. The panel explained that,
generally, prosecution and punishment for criminal activity
do not constitute torture. Further, the panel concluded that
South Korea’s extraterritorial-jurisdiction law, allowing it to
re-prosecute its citizens for crimes committed and punished
outside of South Korea, is not inherently torturous. Nor was
there any evidence that South Korea would apply its law
more harshly to Park than to someone else similarly situated
to him. Additionally, the panel concluded that the agency
properly found that the possibility that South Korea may
prosecute Park and impose harsh punishment for his
California drug crimes is entirely speculative.
The panel also concluded that the agency’s
determination that Park will not be tortured under South
PARK V. GARLAND 5
Korea’s military-conscription policy was supported by
substantial evidence. The panel noted that news articles
Park submitted demonstrate that some members of the South
Korean military have had tragic experiences, including
mistreatment and suicide. However, the panel explained that
military conscription and punishment for evasion of military
duty seldom constitute torture. The panel further explained
that the record did not establish that South Korea’s decades-
old conscription policy, which applies equally to all male
citizens within the designated age range, is imposed with the
intent of inflicting pain and suffering. The panel observed
that the same was true of South Korea’s alternative to
military conscription—three years of labor—which is
equally available to anyone who wishes to avoid military
service.
The panel also concluded that Park did not meet his
burden to show that he would face a particularized risk of
mistreatment from military conscription as a cultural
outsider, and rejected Park’s claim that the agency failed to
consider the aggregate impact of Park’s claimed risks of
torture.
COUNSEL
Jean E. Reisz (argued) and Niels W. Frenzen, University of
Southern California Gould School of Law, Los Angeles,
California, for Petitioner.
Jeffrey M. Hartman (argued), Trial Attorney; M. Jocelyn
Lopez Wright, Senior Litigation Counsel, Office of
Immigration Litigation; Brian Boynton, Principal Deputy
Assistant Attorney General, Civil Division; United States
Department of Justice; Washington, D.C.; for Respondent.
6 PARK V. GARLAND
OPINION
FORREST, Circuit Judge:
Petitioner Kwang Park, a lawful permanent resident and
South Korean native and citizen, was arrested twice in three
days for numerous drug-related crimes. He possessed a
variety of illegal substances and other paraphernalia
evidencing drug trafficking at both arrests, and he pleaded
guilty to 13 charges, including possession of cocaine for
sale. The Government sought to remove Park from the
United States based on his convictions, and he applied for
withholding of removal and protection under the Convention
Against Torture (CAT), among other relief, claiming that he
would be persecuted and tortured by the South Korean
government if removed. Specifically, he claimed that South
Korea would (1) re-prosecute and severely punish him for
his drug crimes committed in this country and (2) force him
to serve in the South Korean military consistent with its
military-conscription policy. The Board of Immigration
Appeals (BIA) denied Park relief and ordered him removed.
In this appeal, Park argues that the BIA erred by improperly
applying the presumption established in Matter of Y-L-, 23
I. & N. Dec. 270 (A.G. 2002)—that drug-trafficking
offenses are particularly serious crimes, a finding that
renders a petitioner ineligible for withholding of removal.
He also argues that the BIA committed procedural and
substantive errors in denying him relief under the CAT.
We deny Park’s petition for review. The BIA properly
applied Matter of Y-L- and did not abuse its discretion in
concluding that the circumstances underlying Park’s
conviction establish that his is not “the very rare case” that
justifies departing from the presumption that drug trafficking
PARK V. GARLAND 7
is a particularly serious crime. See 23 I. & N. Dec. at 276.
The BIA also properly denied CAT relief where it applied
the proper standard, sufficiently explained its decision, and
substantial evidence supports its conclusion that the harm
that Park fears from the South Korean government does not
constitute torture and instead arises from application of that
country’s generally applicable laws.
I. BACKGROUND
A. First Arrest
On April 3, 2018, Park was stopped by California
Highway Patrol for speeding and improperly changing lanes.
Officers discovered that Park was driving with a suspended
license and without insurance. They also observed signs of
intoxication and required Park to perform a “series of field
sobriety tests,” which he failed.
During a search of Park’s car, officers found a loaded
handgun and a canister of cocaine in a female passenger’s
purse. They also found over $2,600, including “a large
amount of hundred dollar bills,” in Park’s wallet, two airsoft
guns that resembled firearms, three small bags of cocaine,
Xanax, numerous containers of cannabis, a scale covered
“with white powdery residue,” seven .40 caliber bullets, and
a lock pick set. Park admitted that the handgun was his and
that “the white powdery substance was cocaine.”
The officers arrested Park, and he was charged with
numerous drug or firearm-related offenses, including
unlawful possession of a controlled substance with a firearm
under California Health and Safety Code (CHSC)
§ 11370.1(a).
8 PARK V. GARLAND
B. Second Arrest
Three days later, Park posted bail and retrieved his car
from police impoundment in the morning. That night, Park
was stopped again for speeding and for driving without a
front license plate and with an improperly obstructed rear
license plate. During the stop, Park admitted that there was
a bag of cocaine under his seat. Officers again searched
Park’s car and found the bag under Park’s seat, which
contained 0.8 grams of cocaine, as well as four more small
bags in the center console that each contained between 1.2
and 1.4 grams of cocaine. An officer also noticed that Park’s
car radio appeared to have been tampered with, and after
removing the cover plate, the officer discovered a bag with
16.8 grams of cocaine, three bags containing a total of 137
Xanax pills, a bag with 95 Ecstasy pills, a bag with a single
Ecstasy pill, and a scale covered in cocaine residue. During
a later inventory of the car, officers also found a ledger
showing “quantities of unknown substances” and “total
value of these items,” a bag containing a small amount of
marijuana, a methamphetamine pipe, two beverage
containers modified “to conceal illegal narcotics” covered in
cocaine residue, numerous containers that were “consistent
with the use to conceal/transport illegal narcotics,” a box of
latex gloves, and a bulletproof vest.
Park was again arrested and ultimately charged with,
among other things, possession and transportation of cocaine
for sale under CHSC §§ 11351, 11352(a). Park was
questioned at the jail, and he admitted that the drugs and
other contraband were his but asserted that they must have
been in the car since his first arrest because he “would not
be driving around with that much weight” and he “stopped
carrying product” after his previous arrest. He also stated
PARK V. GARLAND 9
that no one else had driven his car since he retrieved it from
the impound lot, but some friends had ridden in it.
Park pleaded guilty to 13 charges arising from his two
arrests. At sentencing, he received concurrent 674-day jail
terms and five years’ probation.
C. Immigration Proceedings
After his convictions, Park was charged as removable for
committing an aggravated felony (illicit trafficking of a
controlled substance) and violating California controlled-
substance laws. 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Park
applied for cancellation of removal, asylum, withholding of
removal, and CAT protection. In support of his applications,
Park testified that neither he nor his family members were
ever harmed in South Korea, but he fears returning to that
country because his family lives in the United States and he
no longer has any connections in South Korea. He also
testified that he fears he will be harmed in South Korea
because (1) he will be re-prosecuted for the drug crimes that
he committed in the United States and will receive extremely
harsh punishment, and (2) he will have to comply with South
Korea’s mandatory military service and will be mistreated
by the military.
Regarding his criminal convictions, Park testified that he
“heard from many sources” that he could be prosecuted and
punished in South Korea for his crimes committed in the
United States. He also submitted provisions of South Korean
law relating to drug crimes and that country’s extraterritorial
jurisdiction, the latter of which allows prosecution and
punishment for crimes that a South Korean citizen commits
and is punished for in another country. Under South Korea’s
Narcotics Control Act, the government appears to have
broad discretion to sentence those who “trade[]” narcotics
10 PARK V. GARLAND
for profit or possess narcotics for such purpose, with possible
punishment including life imprisonment and forced labor or
the death penalty. Park also testified that he was told he
would be unable to find a job in South Korea because of his
criminal record. When asked how South Korea would learn
about his California convictions, Park was “not sure.”
Regarding South Korea’s military conscription, Park
testified that he has heard some people in the military “are
not treated fairly and [are] abused,” but when asked
specifically what he thought would happen, he was “not
sure.” Males between 18 and 40 are required to serve in the
South Korean military for two years. 1 Men with dual
citizenship who were raised in the United States and identify
as American have been conscripted into the military upon
their return to South Korea. Park submitted news articles
discussing the conditions of military service in South Korea,
including that “cultural outsiders” who are conscripted into
the military are isolated and abused and that the South
Korean military is “notorious for harsh conditions, including
hazing and rising suicide rates.” Reported statistics from the
South Korean Ministry of National Defense show an average
of 82.2 suicide deaths each year between 2009 and 2013. In
2019, South Korea passed an alternative to military
conscription—three years of forced labor—but Amnesty
International has described it as “alternative punishment.”
1
The record evidence (news articles) regarding the age requirement may
be incorrect and the actual requirement is 18–35. See World Factbook,
South Korea: Military and Security, Cent. Intelligence Agency,
https://www.cia.gov/the-world-factbook/countries/korea-
south/#military-and-security [https://perma.cc/NZP3-M5A7] (last
visited May 19, 2023). But this discrepancy is immaterial as Park is
currently 29 years old.
PARK V. GARLAND 11
The Immigration Judge (IJ) concluded that Park was
statutorily ineligible for cancellation of removal and asylum
due to his aggravated-felony and drug-trafficking
convictions. Based on “the incident reports relating to
[Park’s] drug trafficking convictions,” the IJ also found that
Park was convicted of particularly serious crimes, making
him ineligible for withholding of removal. The IJ detailed
the circumstances of Park’s two arrests, including the type
and quantity of drugs that he possessed and that he had,
among “other incriminating evidence,” a firearm, large
amounts of cash, a scale, body armor, and containers used to
conceal drugs. The IJ found that “these factors contribute to
persuade the Court that [Park] has been convicted of a
particularly serious crime” and that Park did not show
“pursuant to Matter of Y-L- that the specific facts in his case
take the matter out of the presumption that his drug
trafficking offenses are indeed particularly serious crimes.”
The IJ also denied Park’s application for CAT relief
because Park had not suffered past torture and he failed to
demonstrate that it was more likely than not that he would
be tortured if removed to South Korea. The IJ explained: “As
a general principle . . . prosecution for criminal activity is
not something that rises to the level of persecution, let alone
that rises to the level of torture . . . .” Although
“disproportionately severe punishment or the existence of
pretextual prosecution” could, in theory, rise to the level of
torture, the IJ found that “the South Korean laws at issue
would be applied equally to all South Korean citizens in a
similar position and so [Park] would not be
disproportionately punished compared to others who were
similarly situated.” “Moreover, [Park] was not able to
establish anything other than speculation that he would
indeed be prosecuted again in South Korea for the offenses
12 PARK V. GARLAND
that he was already convicted of here in the United States.”
And despite the evidence that Park submitted, the IJ found
that nothing indicates that the government “either habitually
does, or intends to, prosecute someone who has already been
convicted and punished for a crime in another country.” The
IJ also concluded that Park was not entitled to CAT
protection because he had not shown “that any prosecution
that he might suffer would be based upon a protected ground.
Being a criminal or having a criminal record is not a
particular social group that the Circuit has recognized.” The
IJ found that South Korea’s military-conscription law,
including the forced-labor alternative to military service, is
neutrally applied. Thus, the IJ concluded that “the conduct
[Park] fears from the South Korean government appears to
be entirely proper administration of existing South Korean
law.”
The BIA dismissed Park’s appeal. It concluded that Park
was ineligible for withholding of removal because his
conviction in his second case for possession of cocaine for
sale under CHSC § 11351 was a particularly serious crime.
The BIA did not consider whether any of Park’s other
convictions were particularly serious crimes. The BIA also
concluded that the IJ “appropriately applied the presumption
that drug trafficking offenses are particularly serious
crimes,” and, citing Matter of Y-L-, that Park failed to
“overcome this presumption given that he had multiple
arrests for possession of controlled substances, multiple
types of controlled substances in his possession at both
arrests, and a loaded firearm in his possession.”
Regarding CAT relief, the BIA concluded that the IJ’s
predictive factual findings were not clearly erroneous.
Recognizing that the IJ did err in stating that Park needed to
establish “any punishment or prosecution he might suffer
PARK V. GARLAND 13
would be based on a protected ground,” the BIA clarified
that “[a]n applicant for protection under the CAT need not
show feared torture on account of a protected ground.”
Nonetheless, the BIA concluded that Park had not
established that he was likely to suffer torture “for refusing
to do or agreeing to perform military service, or due to his
convictions in the United States.”
In this appeal, Park challenges the BIA’s denial of
withholding of removal and CAT relief. He argues that the
BIA erred in determining that his drug-trafficking conviction
was a particularly serious crime by confusing the facts of his
two arrests and misapplying the presumption established in
Matter of Y-L-. Park also argues that he was erroneously
denied CAT protection because the record compels the
conclusion that he will be tortured if removed to South
Korea. Alternatively, he argues that the BIA committed
several errors that warrant remand.
II. DISCUSSION
A. Criminal-Alien Jurisdiction Bar
The first issue we consider is whether we have
jurisdiction over Park’s petition for review. See Gonzalez-
Caraveo v. Sessions, 882 F.3d 885, 891 (9th Cir. 2018) (“We
have jurisdiction to determine our own jurisdiction.”
(alteration and citation omitted)). The criminal-alien
jurisdiction bar deprives us of jurisdiction over final orders
of removal issued against aliens who are removable for
having committed a criminal offense listed in 8 U.S.C. §
1227(a)(2)(A)(iii), (B)–(D). 8 U.S.C. § 1252(a)(2)(C). There
are several exceptions to this jurisdictional bar. See Flores v.
Barr, 930 F.3d 1082, 1086–87 (9th Cir. 2019) (per curiam).
Under the Limited Review Provision, 8 U.S.C.
§ 1252(a)(2)(D), we retain jurisdiction to consider legal or
14 PARK V. GARLAND
constitutional claims, including whether a particular
conviction falls within the categories defined in Section
1227. 2 Flores, 930 F.3d at 1086. If the agency does not rely
on the alien’s conviction in denying relief, the jurisdictional
bar also does not apply. Id. And the Supreme Court has
clarified that the criminal-alien jurisdiction bar does not
preclude judicial review of factual challenges to the agency’s
denial of CAT relief. Nasrallah v. Barr, 140 S. Ct. 1683,
1690 (2020).
The criminal-alien jurisdiction bar is triggered by Park’s
convictions. The agency ordered Park removed under
Section 1227(a)(2)(A)(iii) (aggravated felony) and Section
1227(a)(2)(B)(i) (controlled-substance offense). Although
the agency denied Park withholding of removal based on his
criminal convictions, Park raises a colorable legal claim that
the BIA applied the wrong legal standard in determining that
he was ineligible for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(B)(ii) because he had been convicted of a
particularly serious crime. Thus, we have jurisdiction to
review this legal challenge under the Limited Review
Provision. See 8 U.S.C. § 1252(a)(2)(D); Mairena v. Barr,
917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam). And as
stated, there is no barrier to our reviewing Park’s challenge
to the denial of his application for CAT relief. Nasrallah,
140 S. Ct. at 1694.
B. Scope of Review
There is also the threshold issue of which agency
decision we should review. Park argues that we can review
2
Questions of law include mixed questions—the “application of a legal
standard to undisputed or established facts.” Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062, 1068 (2020).
PARK V. GARLAND 15
only the BIA’s decision. When the BIA reviews the IJ’s
decision de novo, “our review is limited to the BIA’s
decision except to the extent that the IJ’s opinion is expressly
adopted.” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th
Cir. 2021) (internal quotation marks and citation omitted).
But when the BIA appears to have conducted de novo
review, yet the decision lacks any significant analysis, it
“suggests that the BIA gave significant weight to the IJ’s
findings” and we may “look to the IJ’s . . . decision as a guide
to what lay behind the BIA’s conclusion.” Avetova-Elisseva
v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000); see also Garcia-
Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018)
(noting that when “the BIA agrees with the IJ’s reasoning,
we review both decisions”).
Here, the BIA’s particularly-serious-crime analysis
under Matter of Y-L- and its discussion of Park’s CAT claim
were brief. The BIA noted that the IJ “appropriately applied
the presumption that drug trafficking offenses are
particularly serious crimes” and stated that it agreed with the
IJ that Park had not overcome that presumption, citing the
relevant case law and portions of the IJ’s decision. The BIA
then added less than a sentence detailing its reasoning for
why Park could not rebut the Matter of Y-L- presumption:
“[Park] had multiple arrests for possession of controlled
substances, multiple types of controlled substances in his
possession at both arrests, and a loaded firearm in his
possession.” The BIA’s discussion of Park’s CAT claim,
which also cited relevant portions of the IJ’s decision, was
even more cursory. We thus conclude that “the BIA gave
significant weight to the IJ’s findings,” and we review both
the BIA’s and the IJ’s decisions, “look[ing] to the IJ’s . . .
decision as a guide to what lay behind the BIA’s
conclusion.” Avetova-Elisseva, 213 F.3d at 1197; see also
16 PARK V. GARLAND
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.
2006) (reviewing both decisions where the BIA merely
stated it agreed with the IJ’s denial of relief).
C. Particularly Serious Crime
In reviewing whether the BIA applied the correct legal
standard in its particularly-serious-crime analysis, we
consider “whether the agency relied on the appropriate
factors and proper evidence to reach [its] conclusion.”
Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019)
(alteration in original) (internal quotation marks and citation
omitted). We disturb the agency’s judgment only if it “acted
arbitrarily, irrationally, or contrary to law” by failing to
apply or misapplying the proper standard. Bare v. Barr, 975
F.3d 952, 961 (9th Cir. 2020). “[W]e may not reweigh the
evidence and reach our own determination about the crime’s
seriousness.” Hernandez v. Garland, 52 F.4th 757, 765 (9th
Cir. 2022) (internal quotation marks and citation omitted).
Even if a petitioner otherwise satisfies the standard for
withholding of removal, he is categorically ineligible for this
relief if he has been convicted of a “particularly serious
crime.” 8 U.S.C. § 1231(b)(3)(B)(ii). There are two
standards for determining whether an offense is a
particularly serious crime. First, an aggravated felony with
an aggregate sentence of at least five years’ imprisonment is
categorically a particularly serious crime. Id. §
1231(b)(3)(B)(iv). Second, the Attorney General may
designate other offenses as particularly serious crimes on a
case-by-case basis. Bare, 975 F.3d at 961. Because Park
received less than five years’ imprisonment for his
convictions, our inquiry falls under the second standard.
Generally, the agency’s case-by-case determinations are
governed by the analysis established in In re Frentescu, 18
PARK V. GARLAND 17
I. & N. Dec. 244, 247 (B.I.A. 1982), as refined by
subsequent decisions. Bare, 975 F.3d at 961. Under this
analysis, a court considers: “(1) the nature of the conviction,
(2) the type of sentence imposed, and (3) the circumstances
and underlying facts of the conviction.” Id. (internal
quotation marks omitted and citation omitted). But the
Attorney General has instructed that aggravated felonies
involving illicit drug trafficking are presumptively
particularly serious crimes and that this presumption may be
overcome only in “the most extenuating circumstances that
are both extraordinary and compelling.” Matter of Y-L-, 23
I. & N. Dec. at 274. We afforded Chevron deference to
Matter of Y-L-, concluding that “the Attorney General’s
construction of § 1231(b)(3)(B) as providing him with
discretion to create a strong presumption that drug
trafficking offenses are particularly serious crimes is not
impermissible.” Miguel-Miguel v. Gonzales, 500 F.3d 941,
949 (9th Cir. 2007). Consequently, “a Frentescu analysis is
no longer required with regard to drug trafficking offenses.”
Id.; see also Gilbertson v. Garland, 7 F.4th 700, 705 n.1 (8th
Cir. 2021) (explaining the Frentescu framework does not
apply where Matter of Y-L- applies).
Determining whether an offense is a particularly serious
crime is “inherently discretionary.” Pechenkov v. Holder,
705 F.3d 444, 448 (9th Cir. 2012). Whether a drug-
trafficking offense overcomes the “extraordinarily strong
presumption” of particular seriousness under Matter of Y-L-
is equally discretionary, if not more so. See Miguel-Miguel,
500 F.3d at 947; id. at 946 (noting the presumption is
“rebutted only in the ‘extraordinary,’ ‘extenuating’ and
‘compelling’ case” (quoting Matter of Y-L-, 23 I. & N. Dec.
at 274)). The Attorney General did not “define the precise
boundaries of what . . . unusual circumstances” would
18 PARK V. GARLAND
overcome this presumption, but he did specify that “at a
minimum” an alien would have to show that his
drug-trafficking conviction involved:
(1) a very small quantity of controlled
substance;
(2) a very modest amount of money paid for
the drugs in the offending transaction;
(3) merely peripheral involvement by the
alien in the criminal activity, transaction, or
conspiracy;
(4) the absence of any violence or threat of
violence, implicit or otherwise, associated
with the offense;
(5) the absence of any organized crime or
terrorist organization involvement, direct or
indirect, in relation to the offending activity;
and
(6) the absence of any adverse or harmful
effect of the activity or transaction on
juveniles.
Matter of Y-L-, 23 I. & N. Dec. at 276–77. “Only if all of
these criteria were demonstrated by an alien would it be
appropriate to consider whether other, more unusual
circumstances (e.g., the prospective distribution was solely
for social purposes, rather than for profit) might justify
departure from” the presumption that drug trafficking
offenses are particularly serious crimes. Id. at 277 (second
emphasis added). Thus, if an alien fails to satisfy even one
of the Matter of Y-L- criteria, he cannot overcome the
presumption that his drug-trafficking crime is particularly
PARK V. GARLAND 19
serious, and the inquiry may cease. See Miguel-Miguel, 500
F.3d at 946–47; Tunis v. Gonzales, 447 F.3d 547, 549–50
(7th Cir. 2006).
But as previously noted, the minimum criteria specified
in Matter of Y-L- are not exhaustive, and the Attorney
General did not prohibit the agency from considering other
criteria indicating that a particular drug-trafficking offense
is not “the very rare case” where the presumption of
particular seriousness should not apply. 23 I. & N. Dec. at
276. To the contrary, the Attorney General instructed that “if
all of these criteria were demonstrated,” it “would be
appropriate” for the agency “to consider whether other, more
unusual circumstances” might justify departing from the
presumption. Id. at 277. That is, the agency may not consider
non-listed factors that favor rebutting the presumption
before it determines that the alien has satisfied the listed
minimum criteria, id., but the same is not true if the agency
identifies unlisted factors or circumstances that demonstrate
the crime of conviction was serious and the presumption
should apply. The agency’s ultimate task, after all, is to
apply the presumption absent “the most extenuating
circumstances that are both extraordinary and compelling.”
Id. at 274. The agency does not abuse its discretion by
concluding that this extraordinary-and-compelling standard
is not met based on circumstances evidencing that the
offense is particularly serious, even if those circumstances
were not expressly listed by the Attorney General in defining
the minimum showing that an alien must make to overcome
the presumption.
In this case, Park does not dispute that his conviction at
issue—possession of cocaine for sale in violation of CHSC
§ 11351 from his second arrest—is an aggravated drug-
trafficking felony and that Matter of Y-L- governs. 23 I. &
20 PARK V. GARLAND
N. Dec. at 274; see Lopez v. Sessions, 901 F.3d 1071, 1074–
75 (9th Cir. 2018) (holding that CHSC § 11351 defines an
aggravated felony for purposes of removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii)). Instead, Park contends that the BIA
committed two legal errors in determining that he failed to
rebut the Matter of Y-L- presumption. First, he argues that
the BIA improperly relied on his possession of a firearm in
his first arrest, which was separate from his drug-trafficking
conviction resulting from his second arrest. Second, he
argues that the BIA failed to apply the Matter of Y-L- factors
and erroneously substituted its own factors.
There is no doubt that the BIA’s particularly-serious-
crime analysis was cursory and referenced facts not
explicitly listed in Matter of Y-L-’s minimum-standard
factors. Nonetheless, the BIA applied Matter of Y-L-’s
presumption and its decision was supported by adequate
reasoning. The BIA cited both Matter of Y-L- and our
precedent granting Chevron deference to that decision. And
it concluded that the IJ “appropriately applied the
presumption that drug trafficking offenses are particularly
serious crimes,” an unmistakable reference to Matter of Y-L-
’s standard. Thus, although the agency’s citation of the
correct standard is not determinative, see Gomez-Sanchez v.
Sessions, 892 F.3d 985, 995 (9th Cir. 2018), we are confident
that the BIA applied the Matter of Y-L- presumption when it
decided this case, see Martinez v. Clark, 36 F.4th 1219,
1230–31 (9th Cir. 2022) (explaining that absent indication
of a problem, “we accept that the BIA applied the correct
legal standard if the BIA expressly cited and applied [the
relevant caselaw] in rendering its decision” (alteration in
original) (internal quotation marks and citation omitted)).
The question posed by Park’s petition is really whether
the agency misapplied Matter of Y-L-. Park is correct that
PARK V. GARLAND 21
neither the IJ nor the BIA recited the Matter of Y-L- criteria
that a petitioner must satisfy to rebut the presumption of
particular seriousness. But they are not required to do so.
Sanabria Morales v. Barr, 967 F.3d 15, 22 & n.1 (1st Cir.
2020); cf. Bare, 975 F.3d at 962–63 (holding the agency did
not need to “explicitly” list or discuss the elements required
to prove possession of a firearm by a felon when the agency
“noted facts which correspond to all the elements of the
offense as weighing in favor of the crime being particularly
serious”). It is also true that the BIA considered facts not
directly referenced in Matter of Y-L-’s minimum factors.
Specifically, the BIA concluded that Park’s crime was
particularly serious because “he had multiple arrests for
possession of controlled substances, multiple types of
controlled substances in his possession at both arrests, and a
loaded firearm in his possession.”
Under the Chenery doctrine, “reviewing courts . . .
generally must assess the lawfulness of an agency’s action
in light of the explanations the agency offered for it rather
than any ex post rationales a court can devise.” Garland v.
Ming Dai, 141 S. Ct. 1669, 1679 (2021) (citing SEC v.
Chenery Corp., 318 U.S. 80 (1943)); see also Gutierrez-
Zavala v. Garland, 32 F.4th 806, 810 (9th Cir. 2022). But
we also “must ‘uphold’ even ‘a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.’”
Ming Dai, 141 S. Ct. at 1679 (citation omitted). We do not
require that the agency “engage in a lengthy discussion of
every contention raised by a petitioner. Instead, all that is
required is that it consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely
reacted.” Hernandez, 52 F.4th at 768 (internal quotation
marks and citations omitted).
22 PARK V. GARLAND
The agency’s path of reasoning here is discernable. The
IJ invoked the Matter of Y-L- presumption and thoroughly
recited the facts from Park’s arrests. The BIA affirmed the
IJ’s reasoning and added its own discussion of the
presumption. As we have explained, the ultimate question
for the agency under Matter of Y-L- is whether the
circumstances of the drug-trafficking conviction establish
that it is the “extraordinary and compelling” case warranting
departure from the presumption that such conduct is
particularly serious. 23 I. & N. Dec. at 274. This case
demonstrates that there can be circumstances not listed by
the Attorney General that establish a particular conviction is
not such an extraordinary case. The agency did not abuse its
discretion by considering improper factors or evidence when
it determined that Park had been arrested twice in three days
for drug-related offenses and possessed a variety of drugs
both times. See Flores-Vega, 932 F.3d at 884. Repeated
conduct of the same or similar character is no doubt relevant
in assessing the seriousness and risk of danger posed to the
community by the petitioner’s conduct. It is also relevant to
assessing whether the petitioner was “merely peripheral[ly]
involve[d]” in the criminal activity, which is one of Matter
of Y-L-’s factors. 23 I. & N. Dec. at 276; see id. at 277–78
(finding that the petitioners were “direct actor[s] or
perpetrator[s] . . . in their respective criminal activities”).
Likewise, that Park possessed multiple types of drugs is
relevant to assessing the seriousness of his trafficking
conviction. This fact can inform the extent of a petitioner’s
involvement in drug trafficking. It may also inform the
quantity of drugs that a petitioner possessed, which is also
one of Matter of Y-L-’s factors. Id. at 276. Based on the
specific facts here, the BIA’s reference to the variety of
drugs that Park possessed at his second arrest inherently
PARK V. GARLAND 23
implicates the quantity of drugs that he possessed. At his
second arrest, police found that Park possessed five small
bags of cocaine ranging in weight from .8 grams to 1.4
grams, a bag of cocaine weighing 16.8 grams, over 137
Xanax pills and 95 Ecstasy pills, and small amounts of other
pills and marijuana. The IJ recounted the fruits of this search
in his decision, which the BIA relied on and implicitly
adopted. On this record, any logical gap between the
multiple types of drugs that Park possessed and the quantity
of drugs that he possessed is immaterial. See id. at 277
(finding that the petitioners “failed to demonstrate that the
volume or value of controlled substances involved in their
offenses was de minimis or inconsequential”). The agency’s
reference to the various substances that Park possessed
demonstrates that it recognized Park was not convicted for
having only “a very small” or “inconsequential” amount. Id.
at 276–77; cf. United States v. Lopez, 477 F.3d 1110, 1114
& n.16 (9th Cir. 2007) (“[A] typical dose of cocaine can be
as little as one-fourth of a gram . . . .” (emphasis added)
(citation omitted)). In sum, while the BIA’s analysis was
limited, we conclude that the factors it considered were
consistent with Matter of Y-L- and that its decision was
“comfortably on the right side of the line separating the
‘tolerably terse’ from the ‘intolerably mute.’” Hernandez, 52
F.4th at 768 (citation omitted).
Even if we were to conclude that the BIA erred by
considering facts not expressly incorporated into Matter of
Y-L-’s minimum standard, we would still deny Park’s
petition. We have recognized that remand is an “idle and
useless formality” when the BIA applies the wrong legal
standard if, as a result of its factual findings, “neither the
result nor the BIA’s basic reasoning would change.” Singh
v. Barr, 935 F.3d 822, 827 (9th Cir. 2019) (per curiam)
24 PARK V. GARLAND
(citation omitted); see also Halim v. Holder, 590 F.3d 971,
980 (9th Cir. 2009) (Cudahy, J., concurring) (explaining
remand was futile because agency’s adverse-credibility
determination left “no basis for evidentiary analysis” and
necessarily defeated petitioner’s claim despite intervening
caselaw changing the applicable legal standards). That is the
case here. Based on the agency’s assessment of the facts
underlying Park’s conviction, which he does not challenge,
it is a legal certainty that Park cannot satisfy Matter of Y-L-
’s minimum criteria required to overcome the presumption
that his drug-trafficking conviction is a particularly serious
crime. Thus, this is one of those “narrow circumstances”
where remand is unwarranted because the law dictates the
outcome that the agency must reach. See Calcutt v. FDIC,
143 S. Ct. 1317, 1321 (2023) (per curiam).
D. CAT Relief
Park also alleges that the BIA committed multiple errors
in denying him CAT relief. He argues that (1) the BIA
exceeded its regulatory authority by impermissibly engaging
in predictive fact-finding, (2) the BIA failed to give a
reasoned explanation for its decision, (3) the evidence
compels the conclusion that he is more likely than not to be
tortured by the South Korean government, and (4) the BIA
erred by not aggregating his potential sources of torture. We
reject each of Park’s arguments and conclude that the BIA
did not err in denying CAT relief.
1. Procedural Arguments
We review questions of law regarding CAT claims de
novo. Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154
(9th Cir. 2022). Park’s argument that the BIA made
impermissible factual findings is premised on the IJ’s
misstatement that Park had not shown that he would be
PARK V. GARLAND 25
tortured on account of a protected ground. Park argues this
legal error necessarily means the IJ’s factual findings were
also legally infirm, and that the BIA’s adoption of the IJ’s
factual findings without first remanding for the IJ to apply
the proper legal standard constituted impermissible fact-
finding. We disagree.
The BIA reviews an IJ’s CAT determination under a
mixed standard of review: first, the BIA reviews for clear
error the IJ’s predictive factual findings as to whether a
petitioner will be tortured in the country of removal, and
second, the BIA exercises de novo review to determine
whether those facts meet the legal requirements for CAT
relief. See 8 C.F.R. § 1003.1(d)(3)(i)–(ii); Perez-Palafox v.
Holder, 744 F.3d 1138, 1145 (9th Cir. 2014). Here, the BIA
concluded that the IJ’s predictive factual findings were not
clearly erroneous. It then considered whether those facts
constituted torture and concluded that “[Park] ha[d] not
established it is more likely than not he would be subject to
torture either for refusing to do or agreeing to perform
military service, or due to his convictions in the United
States.” This is precisely what the BIA is required to do. See
Perez-Palafox, 744 F.3d at 1145–46. And Park “does not
point to any fact found by the IJ that was ignored by the BIA,
or any fact found by the BIA that was not found by the IJ.”
Id. at 1145.
Moreover, “[w]here the BIA conducts a de novo review,
[a]ny error committed by the IJ will be rendered harmless by
the [BIA]’s application of the correct legal standard.”
Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009)
(second alteration in original) (citation omitted). The BIA
corrected the IJ’s misstatement of the legal standard for CAT
relief and concluded that Park nonetheless failed to establish
that “it is more likely than not he will be tortured, regardless
26 PARK V. GARLAND
of the basis, upon his removal to South Korea.” See Cole v.
Holder, 659 F.3d 762, 770 (9th Cir. 2011) (“[A]n applica[nt]
for CAT relief need not show that he will be tortured ‘on
account of’ any particular ground.”). Thus, the IJ’s legal
error did not undermine its factual findings and was cured
when the BIA applied the correct legal standard to the facts
found by the IJ. See Avendano-Hernandez v. Lynch, 800
F.3d 1072, 1078 (9th Cir. 2015); Singh v. Holder, 591 F.3d
1190, 1198 (9th Cir. 2010).
Park is also incorrect that the BIA failed to provide a
reasoned explanation for its decision. This argument is
premised on his mistaken view that we can review only the
BIA’s decision. We start with the presumption that the BIA
reviewed the record and considered all relevant evidence.
See Hernandez, 52 F.4th at 770–71; Szonyi v. Barr, 942 F.3d
874, 897 (9th Cir. 2019). And as discussed, we can look to
the IJ’s decision “as a guide to what lay behind the BIA’s
[decision].’” Avetova-Elisseva, 213 F.3d at 1197; see also
Rodriguez-Jimenez v. Garland, 20 F.4th 434, 438 (9th Cir.
2021), overruled on other grounds by Alam v. Garland, 11
F.4th 1133, 1135–36 (9th Cir. 2021) (en banc). Only where
there is some indication that the BIA overlooked relevant
evidence, including by “misstating the record or failing to
mention highly probative or potentially dispositive
evidence,” do we question whether it properly considered
the record. Hernandez, 52 F.4th at 771–72 (alteration
adopted) (citation omitted).
Here, the IJ thoroughly addressed both of Park’s future-
torture theories, his testimony, and the documentary and
country-conditions evidence. The IJ specifically explained
why the harm that Park fears is speculative and non-
particularized and would not constitute torture. The BIA
cited these portions of the IJ’s decision multiple times in its
PARK V. GARLAND 27
CAT discussion. It is also clear that the BIA considered
Park’s two theories because it concluded that he failed to
show “it is more likely than not he would be subject to
torture either for refusing to do or agreeing to perform
military service, or due to his convictions in the United
States.” When read alongside the IJ’s multi-page CAT
analysis, the BIA’s decision “adequately convey[s] the
reasoning behind the denial of [Park’s] CAT claim.”
Rodriguez-Jimenez, 20 F.4th at 439 (citation omitted). 3
2. Merits
We review factual findings underlying the BIA’s denial
of relief for substantial evidence. Plancarte Sauceda v.
Garland, 23 F.4th 824, 831 (9th Cir. 2022). The agency’s
factual findings “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). To be eligible for CAT
relief, a petitioner must show that it is more likely than not
3
The cases Park relies on are inapposite. In Pirir-Boc v. Holder, 750
F.3d 1077, 1085–86 (9th Cir. 2014), we held that the BIA failed to
provide a “reasoned explanation” for its decision when it stated only that
“[petitioner] has failed to establish a prima facie case for eligibility for
relief under the [CAT].” Id. at 1085. The IJ in Pirir-Boc denied the
petitioner’s CAT claim solely because he failed to specifically request
that relief. Id. at 1085 n.9. But here, the IJ addressed the merits of Park’s
CAT claim. Additionally, the BIA here did not provide such a conclusory
decision because it linked the CAT standard to Park’s two theories of
torture. And the IJ’s decision provides adequate reasoning to support the
BIA’s decision. Cole v. Holder, 659 F.3d at 772, a case in which the
agency failed to consider “potentially dispositive evidence,” is likewise
inapt because Park has not demonstrated that the BIA or IJ failed to
consider any similarly dispositive evidence. See id. at 771–75
(remanding where the BIA mischaracterized an expert’s testimony and
entirely failed to acknowledge a second expert and corroborating
documentary evidence that supported the petitioner’s CAT claim).
28 PARK V. GARLAND
that he would be tortured by or with the consent or
acquiescence of a public official in the country of removal.
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020).
“Torture is an extreme form of cruel and inhuman treatment
and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment . . . .” 8 C.F.R.
§ 1208.18(a) (defining torture as “any act by which severe
pain or suffering, whether physical or mental, is intentionally
inflicted on a person”).
In determining whether an applicant is likely to be
tortured, the agency must consider all relevant evidence,
including (i) evidence of past torture, (ii) evidence that the
applicant could relocate within the country of removal, (iii)
“[e]vidence of gross, flagrant or mass violations of human
rights within the country of removal,” and (iv) other relevant
information regarding conditions in the country of removal.
Id. § 1208.16(c)(3). Generalized evidence of violence and
crime is insufficient to establish a likelihood of torture.
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.
2010) (per curiam). The record must show that it is more
likely than not that the petitioner will face a particularized
and non-speculative risk of torture. See Tzompantzi-Salazar
v. Garland, 32 F.4th 696, 706–07 (9th Cir. 2022). The
agency must also consider the aggregate risk of torture that
an applicant would face from all possible sources.
Velasquez-Samayoa, 49 F.4th at 1154.
Recognizing that “[t]orture does not include pain or
suffering arising only from, inherent in or incidental to
lawful sanctions,” 8 C.F.R. § 1208.18(a)(3), Park
nonetheless argues that South Korea’s “lawful” yet
“draconian” punishments for drug crimes and its military-
conscription policy rise to the level of torture. Again, we
disagree.
PARK V. GARLAND 29
i. Drug Convictions
Substantial evidence supports the agency’s
determination that Park is unlikely to be tortured because of
his California drug convictions. Generally, prosecution and
punishment for criminal activity do not constitute torture.
See Bromfield v. Mukasey, 543 F.3d 1071, 1077 (9th Cir.
2008) (noting that “legitimate criminal prosecution
generally does not constitute persecution”); Cruz-Samayoa
v. Holder, 607 F.3d 1145, 1151 (6th Cir. 2010) (“[T]here is
a marked distinction between persecution and criminal
prosecution.”); Abdel-Rahman v. Gonzales, 493 F.3d 444,
452 (4th Cir. 2007) (noting that the principle that potential
criminal prosecution generally does not constitute
persecution “respects a government’s freedom to devise its
own laws and penalties for criminal conduct” (citation
omitted)); Sharma v. Garland, 9 F.4th 1052, 1067 (9th Cir.
2021) (harm not rising to the level of persecution
“necessarily falls short of the definition of torture”). The
regulations implementing the CAT specifically provide that
“[t]orture does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions.” 8 C.F.R.
§ 1208.18(a)(3). The regulations further define “lawful
sanctions” as “judicially imposed sanctions and other
enforcement actions authorized by law, including the death
penalty.” Id. This does not give foreign countries unfettered
discretion to avoid the CAT because the definition of “lawful
sanctions” does not include actions “that defeat the object
and purpose of the Convention Against Torture to prohibit
torture.” Id. That is, “[a] government cannot exempt
torturous acts from CAT’s prohibition merely by authorizing
them as permissible forms of punishment in its domestic
law.” Nuru v. Gonzalez, 404 F.3d 1207, 1221 (9th Cir.
2005); see Khouzam v. Ashcroft, 361 F.3d 161, 169–70 (2d
30 PARK V. GARLAND
Cir. 2004) (“It would totally eviscerate the CAT to hold that
once someone is accused of a crime[,] it is a legal
impossibility for any abuse inflicted on that person to
constitute torture.”). But a country’s decision to prosecute
certain crimes more aggressively or impose more severe
punishments than the United States has chosen to impose
does not necessarily establish torture. See Li v. Holder, 559
F.3d 1096, 1108–09 (9th Cir. 2009) (holding that absent a
showing of “disproportionately severe punishment” or
“pretextual prosecution,” criminal prosecution does not
constitute persecution (citation omitted)); Fisher v. INS, 79
F.3d 955, 961–62 (9th Cir. 1996) (en banc) (concluding that
enforcement of Iran’s “dress and conduct rules,” although
“harsh by Western standards,” does not constitute
persecution).
Here, South Korea’s extraterritorial-jurisdiction law,
allowing it to re-prosecute its citizens for crimes committed
and punished outside of South Korea, is not inherently
torturous. Nor is there any evidence that South Korea would
apply its law more harshly to Park than to someone else
similarly situated to him. Additionally, the agency properly
found that the possibility that South Korea may prosecute
Park and impose harsh punishment for his California drug
crimes is entirely speculative. Pointing to South Korea’s
criminal law, Park argues that “nothing precludes the South
Korean government from sentencing [him] to twenty years,
life, life imprisonment with labor, or even the death penalty
for possession for sale of cocaine.” But Park has not shown
that any of these outcomes are likely. South Korean law
provides that the government could invoke extraterritorial
jurisdiction to prosecute Park for the crimes he committed in
PARK V. GARLAND 31
California, 4 and, if convicted, that he could receive a range
of sentences from 10 years’ imprisonment to the death
penalty. 5 However, South Korean law specifically provides
that if “an offender has undergone execution of a sentence
imposed abroad because of a crime . . . the punishment
therefor [sic] in Korea may be mitigated or remitted.” 6 This
makes Park’s theory of torture based on his drug convictions
a chain of speculative and unsubstantiated hypotheticals: the
South Korean government would (1) have to learn of Park’s
California convictions, (2) choose to prosecute him for those
crimes, (3) obtain a conviction, and (4) exercise its
discretion to impose the life imprisonment or death sentence
that he fears. See Medina-Rodriguez v. Barr, 979 F.3d 738,
750–51 (9th Cir. 2020) (concluding that “[t]he evidence does
not establish that any step in this hypothetical chain of
events is more likely than not to happen, let alone that the
entire chain will come together to result in the probability
of torture” (alteration in original) (citation omitted)).
Still, Park contends that the South Korean government
“will likely single him out” based on his “criminal status.”
But Park himself testified that he was “not sure” how South
Korea would learn of his California convictions. And he
does not identify a single example where the South Korean
4
See Criminal Act, Act No. 11731, Apr. 5, 2013, arts. 3 & 7, (S. Kor.),
translated in Korean Legislation Research Institute online database,
https://elaw.klri.re.kr/eng_service/lawView.do?hseq=28627&lang=EN
G [https://perma.cc/2WUM-N9BE].
5
See Narcotics Control Act, Act. No. 14019, Feb. 3, 2016, art. 58(1)–(2),
(S. Kor.), translated in Korean Legislation Research Institute online
database, https://elaw.klri.re.kr/eng_service/lawView.do?hseq=37716&
lang=ENG [https://perma.cc/X4K2-DC5X].
6
Criminal Act, Act No. 11731, supra, art. 7.
32 PARK V. GARLAND
government has prosecuted someone for crimes that they
were convicted of and punished for abroad. Park’s strongest
evidence is a 2018 news article hypothesizing that South
Korea might prosecute the thousands of Korean students
studying in Canada for smoking marijuana when they return
to South Korea. But the article notes that exactly “how police
would test those returning from Canada remain[s] hazy.”
And while “[e]xperts suggested enforcement would focus
more on drug traffickers than casual users,” the article also
notes that “police are more concerned with the transportation
of marijuana into South Korea.” Otherwise, Park relies only
on unsubstantiated hearsay from former South Korean
residents who say that he could be re-prosecuted and
punished for his California crimes. This record does not
compel the conclusion that South Korea will single out Park
or punish him in the manner that he fears, let alone torture
him because of his criminal record. See Blandino-Medina v.
Holder, 712 F.3d 1338, 1348 (9th Cir. 2013) (holding that
agency properly denied CAT protection where petitioner
“merely presented a series of worst-case scenarios”).
ii. Military Conscription
The agency’s determination that Park will not be tortured
under South Korea’s military-conscription policy is also
supported by substantial evidence. Like Park’s fear of torture
based on his criminal record, the harm he fears from
mandatory military service is “inherent in or incidental to”
generally applicable South Korean law. See 8 C.F.R.
§ 1208.18(a)(3). The news articles that Park submitted to the
agency demonstrate that some members of the South Korean
military have had tragic experiences, including mistreatment
and suicide. But as with other legal requirements and
policies, military conscription and punishment for evasion of
military duty seldom constitute torture. Cf. Zehatye v.
PARK V. GARLAND 33
Gonzales, 453 F.3d 1182, 1187 (9th Cir. 2006) (“[F]orced
conscription or punishment for evasion of military duty
generally does not constitute persecution.”). And the record
evidence does not establish that South Korea’s decades-old
conscription policy, which applies equally to all male
citizens within the designated age range, is imposed “with
the intent of inflicting pain and suffering.” Deng Chol v.
Garland, 25 F.4th 1063, 1070 (8th Cir. 2022)
(“[C]onscription itself does not qualify as CAT torture
unless done with the intent of inflicting pain and suffering
on the conscript.”); see 8 C.F.R. § 1208.18(a)(1). The same
is true of South Korea’s alternative to military
conscription—three years of labor—which is equally
available to anyone who wishes to avoid military service.
Park also has not met his burden to show that he would
face a particularized risk of mistreatment from military
conscription as a “cultural outsider.” Because he is an
“American-identifying South Korea expatriate” who has not
lived in South Korea since he was young, Park argues that
he “faces unique risks.” But he also was “not sure” what
would happen if he were required to join the military. The
evidence of “endemic bullying” and abuse by officers,
isolation from the loss of internet and phone access, and the
suicide rate among military members does not establish that
these impacts affect expatriates more than other conscripts.
Instead, there is evidence in the record showing that
expatriates and dual citizens have completed their military
service unharmed. In sum, while there is evidence of
mistreatment within the South Korean military, we cannot
conclude that the record compels the conclusion that the
approximately 600,000 people currently serving in the South
Korean military are being subject to torture or that Park
34 PARK V. GARLAND
would face a particularized risk of any level of mistreatment
because he is an expatriate.
Finally, the agency did not fail to consider the aggregate
impact of Park’s claimed risks of torture. There is no
indication that the BIA failed to “tak[e] into account all
possible sources of torture” where it expressly referenced
both theories. Velasquez-Samayoa, 49 F.4th at 1154 (citation
omitted). Rather, it concluded that Park had not established
that any of the mistreatment he fears “regardless of the basis”
rose to the level of torture. The agency “said enough to
convince us that it did, in fact, find that there is less than a
50% chance that [Park] will be tortured by all potential
sources of torture . . . in the aggregate.” Iraheta-Martinez v.
Garland, 12 F.4th 942, 960 (9th Cir. 2021).
PETITION DENIED.7
7
Park’s motion to extend the time to file a reply in support of his motion
for stay of removal (Dkt. No. 13) is granted, and his motion for stay of
removal (Dkt. No. 1) is denied.