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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EUNHEA KWAK, No. 18-73382 Petitioner, Agency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 1 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). 2 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. …

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