Eunhea Kwak v. Merrick Garland, 18-73382

Petitioner Eunhea Kwak, a South Korean national, sought asylum, withholding of removal, and CAT protection after an arson conviction.
Kwak set fire in her 30-story apartment building; the BIA found the offense "inherently dangerous" and potentially lethal to others.
She received a suspended four-year prison sentence and one year in jail (with credit for time served).
The IJ denied relief; the BIA dismissed her appeal, concluding her crime was a "particularly serious crime," rendering her statutorily ineligible for asylum and withholding.
Alternatively, the BIA found her proposed social group—"victims of sex trafficking"—not cognizable because it was defined by the harm; Kwak did not challenge that ruling or her CAT claim on appeal and thus waived those arguments.
The Ninth Circuit denied the petition for review, concluding the BIA applied the correct legal standards and that Kwak waived alternative challenges; the petition was not moot despite her return to South Korea.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kwak's arson was a "particularly serious crime" barring asylum and withholding	Kwak argued her mental state (not in her "right mind") and circumstances mitigated culpability	Agency argued arson was inherently dangerous, sentence and facts supported a particularly serious finding	BIA applied Frentescu factors correctly; Ninth Circuit cannot reweigh facts and lacks jurisdiction to review ultimate "particularly serious" determination; denial affirmed
Whether the proposed social group "victims of sex trafficking" is cognizable	Kwak claimed victims of sex trafficking constitute a particular social group	Agency argued the group is defined solely by the harm and therefore not independent/cognizable	BIA held the group is defined by the harm and not cognizable; Kwak waived any challenge by not addressing it on appeal
Whether CAT relief or other claims survive appeal/mootness issues	Kwak maintained claims for CAT and relief despite removal to South Korea	Government relied on waiver and argued no redressable collateral consequences	Court found Kwak waived CAT claim; petition not moot because government did not show lack of collateral consequences; petition denied

Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (standard of review: de novo for law and mixed questions)
Mairena v. Barr, 917 F.3d 1119 (9th Cir. 2019) (substantial-evidence standard for factual findings)
Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (clarifying standard for reviewing agency factual findings)
Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (discussing particularly serious crime doctrine)
Bare v. Barr, 975 F.3d 952 (9th Cir. 2020) (jurisdictional limits on reviewing the BIA's ultimate particularly serious-crime determination)
Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) (application of Matter of Frentescu factors)
Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020) (a social group cannot be defined solely by the harm inflicted)
Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996) (issues not argued in opening brief are waived)