Wayura Pramual v. Jefferson Sessions , 679 F. App'x 603 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 08 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYURA PRAMUAL, No. 14-70538
Petitioner, Agency No. 098-266-285
v.
MEMORANDUM*
JEFF B. SESSIONS, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 17, 2017
San Francisco, California
Before: W. FLETCHER, FUENTES**, and RAWLINSON, Circuit Judges.
Wayura Pramual, a citizen of Thailand, conceded her removability, but
argued that, as a victim of sex trafficking and spousal abuse, she should be granted
relief from removal. She now petitions for review of two Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Julio M. Fuentes, Senior Circuit Judge for the U.S.
Court of Appeals for the Third Circuit, sitting by designation.
Appeals (“BIA”) orders which, when taken together, denied her asylum application
as untimely and denied on the merits her applications for withholding of removal,
special-rule cancellation of removal under the Violence Against Women Act, and
protection under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. Review of factual questions is
for substantial evidence and review of questions of law is de novo. Corpuz v.
Holder, 697 F.3d 807, 811 (9th Cir. 2012). We look to the BIA’s reasoning except
to the extent that the BIA adopted or incorporated the opinion of the Immigration
Judge (“IJ”). See Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006).
For the reasons that follow, we deny Pramual’s petition.
1. Asylum. We have jurisdiction to reach whether the undisputed facts of
this case show “extraordinary circumstances” relating to Pramual’s untimely filing.
See Husyev v. Mukasey, 528 F.3d 1172, 1178–81 (9th Cir. 2008).1 We find no
error in the agency’s determination that the circumstances here did not excuse the
late filing of Pramual’s asylum application, which was submitted approximately a
decade after she entered the United States. A psychological report describes
1
The government argues that we lack jurisdiction because the parties
do not agree on the meaning of the psychological report. A disagreement over the
inferences drawn from the record, however, need not render the underlying facts
“disputed.” Regardless, we remind the government of its responsibility to address
the merits of the underlying claim, especially when the jurisdictional question is a
close one. See de Alvarez v. Holder, 704 F.3d 730, 738 n.4 (9th Cir. 2012).
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moderate depression and difficulty confronting the realities of her trafficking (and
risks to her health and well-being), but it does not compel the conclusion that her
condition impeded the ability to timely file.
2. Withholding of Removal. This record does not compel the finding that
Pramual would more likely than not face persecution in Thailand on an enumerated
ground. The IJ found no past persecution, and held that Pramual had not met her
burden of independently showing a sufficient likelihood of future persecution. The
IJ’s discussion of the facts underpinning this claim was generally sensitive and
thoughtful, and we do not find that the record compels a contrary outcome.
3. Special-Rule Cancellation of Removal. To the extent that Pramual claims
that her treatment at the hands of her ex-husband met the definition of battery or
extreme cruelty, see Lopez-Birrueta v. Holder, 633 F.3d 1211, 1215 (9th Cir.
2011), the IJ discussed the relevant record evidence and found that a) there had
been no physical abuse and b) the emotional mistreatment did not rise to the level
of extreme cruelty. Neither our case law nor any extant BIA decision renders this
finding legally erroneous or unsupported by substantial evidence.
4. CAT. Although the parties said at argument that they were interested only
in the propriety of the BIA’s standard of review in reversing the IJ’s decision—a
question of law we review de novo, and which requires remand if the wrong
standard of review materially affected the BIA’s decision, see Zumel v. Lynch, 803
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F.3d 463, 476 (9th Cir. 2015)—we will also reach the underlying merits for the
sake of completeness. Some procedural background is also in order. The IJ
granted Pramual’s CAT application, relying on State Department and United
Nations reports to find the existence of possible harm to victims of sex trafficking
returning to Thailand. While Pramual’s first petition for review was pending, we
decided Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012), which clarified the parts of
a CAT determination that are “factual” (and are thus reviewed by the BIA for clear
error) and which are “legal” (and are thus reviewed de novo). On unopposed
motion by the government, we remanded to the BIA for further consideration in
light of Ridore.
Pramual now challenges the BIA’s decision as inconsistent with Ridore. We
do not agree. The BIA discussed the evidence the IJ relied upon, but found the IJ’s
conclusion—that the record evidence met Pramual’s burden to show a clear
probability of torture in Thailand by or with the acquiescence of the government or
a government official—to be clearly erroneous. See Garcia-Milian v. Holder, 755
F.3d 1026, 1033 (9th Cir. 2014) (setting out standard). In the BIA’s view, the
State Department and United Nations reports did not provide an adequate factual
basis for granting CAT relief. The BIA’s discussion was not conclusory, rote, or
without explanation. See Vitug v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013). At
oral argument, counsel for Pramual observed that much of the BIA’s second
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decision is similar to its first, but we never found the BIA’s first decision to be
defective under Ridore; rather, we remanded upon the request of the government,
which did not concede (or ask us to find) error. Accordingly, we conclude both
that the BIA applied the correct standard of review and that its ultimate decision to
deny the CAT application is supported by substantial evidence.
PETITION DENIED.
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