Duc Vo v. Eric H. Holder Jr. , 473 F. App'x 767 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 07 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
DUC TRI VO, No. 08-72894
Petitioner, Agency No. A071-006-375
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 16, 2012
San Francisco, California
Before: REINHARDT and MURGUIA, Circuit Judges, and EZRA, District
Judge.**
Duc Tri Vo petitions for review of a decision by the Board of Immigration
Appeals (“BIA”), affirming the Immigration Judge’s (“IJ”) determination that he is
inadmissible under 8 U.S.C. § 1182(a)(2)(C) and ineligible for asylum, withholding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
of removal, or relief under the Convention Against Torture. Exercising jurisdiction
under 8 U.S.C. § 1252, we deny the petition for review.1
1. The BIA did not err in holding that Vo is inadmissible under § 1182(a)(2)(C)
because there is reason to believe that he “has been an illicit trafficker in [a] controlled
substance.” The BIA’s holding “must be affirmed if based on reasonable, substantial,
and probative evidence,” Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir.
2000), and the record here contains such evidence. We reject Vo’s argument that the
BIA was precluded from relying on a police report offered as documentary evidence
because the officer who prepared the report did not testify. “In the immigration
context, hearsay is admissible if it is probative and its admission is fundamentally
fair.” Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006). The report is clearly
probative, and its admission was not unfair. We also disagree with Vo’s argument that
the BIA erred in discrediting his testimony. We review credibility determinations for
substantial evidence, Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005), and find
such evidence here.
1
We have jurisdiction to determine whether Vo “is an alien removable by
reason of one . . . of the enumerated” criminal grounds. Flores-Miramontes v. INS,
212 F.3d 1133, 1135 (9th Cir. 2000) (alterations and internal quotation marks
omitted). We also have jurisdiction over Vo’s claims for asylum and withholding of
removal. Morales v. Gonzales, 478 F.3d 972, 980–81 (9th Cir. 2007).
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2. To determine whether § 1182(a)(2)(C) is impermissibly vague, “[w]e consider
whether the statute gives the person of ordinary intelligence a reasonable opportunity
to know what is prohibited, so that he may act accordingly.’” Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 822 (9th Cir. 2003) (internal quotation marks and alterations
omitted). As in Rojas-Garcia, we hold that a reasonable person of ordinary
intelligence in Vo’s position would have known that his conduct could give the
government reason to believe he is an “an illicit trafficker in [a] controlled substance.”
3. The agency did not err in placing the burden on Vo to show that he is eligible
for relief from removal, notwithstanding his prior designation as a refugee. “[A]n alien
who arrives in the United States as a refugee may be removed even if [his] refugee
status has never been terminated . . . .” Kaganovich v. Gonzales, 470 F.3d 894, 898
(9th Cir. 2006). 8 C.F.R. § 1240.35(c) does not apply to Vo, see 8 C.F.R. § 1240.30,
and we decline to address Vo’s argument—raised for the first time in his supplemental
letter brief—that the regulation is invalid. See Miller v. Fairchild Indus., Inc., 797
F.2d 727, 738 (9th Cir. 1986).
4. We also affirm the BIA’s determination that Vo has not established his
eligibility for asylum or withholding of removal because the agency’s conclusion is
supported by substantial evidence. Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th
Cir. 2010). Although the BIA did not separately evaluate Vo’s claim of past
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persecution, the BIA cited to the IJ’s analysis of both past persecution and a fear of
future persecution in its affirmance of the IJ’s denial of relief. Because the BIA
adopted the IJ’s reasoning, the BIA did not erroneously ignore an issue. Sagaydak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005).
5. Substantial evidence also supports the agency’s denial of relief under the
Convention Against Torture. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009).
PETITION DENIED.
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