Kwang Park v. Merrick Garland
72 F.4th 965
| 9th Cir. | 2023

Background

  • Petitioner Kwang Hyen Park, a lawful permanent resident and South Korean citizen, was arrested twice in three days (April 2018) on drug- and weapon-related charges; police seized multiple drugs, scales, cash, and a loaded handgun.
  • Park pleaded guilty to 13 charges, including possession of cocaine for sale (Cal. Health & Safety Code § 11351), and received concurrent 674-day jail terms and five years’ probation.
  • DHS charged Park with removability as an aggravated felony (drug trafficking) and controlled-substance offender; Park applied for cancellation, asylum, withholding of removal, and CAT protection.
  • The IJ found Park ineligible for cancellation and asylum, held his § 11351 conviction a particularly serious crime (relying on Matter of Y-L- principles), and denied CAT relief as speculative and not torture.
  • The BIA affirmed: it applied the Matter of Y-L- presumption for drug trafficking, agreed the presumption was not rebutted given Park’s arrests, drug quantities/types, and firearm, and affirmed denial of CAT after clarifying the proper legal standard.
  • The Ninth Circuit denied Park’s petition for review, holding the BIA applied the correct legal standards and that substantial evidence supports denial of CAT relief.

Issues

Issue Park's Argument Government's Argument Held
Whether the BIA misapplied Matter of Y-L- presumption that drug-trafficking aggravated felonies are "particularly serious crimes" Park: BIA relied on facts from a separate arrest (firearm) and considered improper/unlisted factors, so it applied the wrong standard. Garland: BIA cited Matter of Y-L-, reasonably relied on IJ facts (multiple arrests, multiple drugs, firearm) and properly found Park did not overcome the strong presumption. Court: BIA applied Matter of Y-L- and did not abuse discretion; even if some nonlisted facts were cited, the outcome was compelled on the record.
Whether the BIA impermissibly engaged in predictive fact-finding / adopted IJ error regarding CAT standard Park: IJ misstated legal standard (said torture must be "on account of" protected ground), so BIA improperly adopted infirm factual findings without remand. Garland: BIA reviewed IJ predictive findings for clear error, corrected the legal standard, and applied it de novo to the facts. Court: BIA acted within its mixed standard (clear-error for facts, de novo for law); IJ error was cured by BIA’s de novo legal analysis.
Whether the BIA failed to provide a reasoned explanation for denying CAT relief Park: BIA’s decision was cursory and insufficiently reasoned; review should be limited to BIA text. Garland: BIA reasonably relied on and cited the IJ’s detailed CAT findings; the combined record supplies adequate reasoning. Court: When BIA relies on IJ, the IJ opinion may be consulted; read together, the BIA and IJ provided adequate explanation.
Whether substantial evidence compels CAT relief based on (a) risk of reprosecution/punishment for U.S. drug convictions and (b) risk from South Korean military conscription (including alternative labor) Park: South Korean extraterritorial law and harsh statutory penalties (including life/forced labor/death) make reprosecution and torturous punishment likely; conscription and mistreatment of expatriates create a particularized torture risk. Garland: Criminal prosecution/punishment and conscription are lawful sanctions that ordinarily are not torture; the chain of events leading to reprosecution and extreme punishment is speculative; record shows no particularized risk to Park as an expatriate. Court: Substantial evidence supports denial of CAT—prosecution/punishment and conscription are lawful/sweeping policies, speculative or non-particularized; aggregation of risks does not make torture likely.

Key Cases Cited

  • Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007) (affording Chevron deference to the Attorney General’s Matter of Y-L- presumption that drug-trafficking aggravated felonies are presumptively particularly serious crimes)
  • Bare v. Barr, 975 F.3d 952 (9th Cir. 2020) (describing Frentescu factors and standard for particularly serious crime determinations)
  • Hernandez v. Garland, 52 F.4th 757 (9th Cir. 2022) (review standards and adequacy of agency explanation)
  • Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (criminal-alien jurisdiction bar does not preclude review of factual challenges to CAT denials)
  • Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (courts must uphold agency decisions if the agency’s path can reasonably be discerned)
  • Perez-Palafox v. Holder, 744 F.3d 1138 (9th Cir. 2014) (BIA reviews IJ’s predictive factual findings for clear error and reviews legal application de novo)
  • Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) (criminal prosecution and punishment generally do not constitute persecution or torture)
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