Praepitcha Smatsorabudh v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
MAY 8 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRAEPITCHA SMATSORABUDH, No. 19-70238
Petitioner, Agency No. A208-843-988
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 14, 2020
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,** District Judge.
Praepitcha Smatsorabudh, a native and citizen of Thailand, petitions for
review of the decision of the Board of Immigration Appeals (“BIA”) dismissing
her appeal of the Immigration Judge’s (“IJ”) decision denying her application for
withholding of removal and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
(“CAT”). Smatsorabudh argues that the BIA failed to apply the correct standards in
concluding that her conviction for wire fraud under 18 U.S.C. § 1343 was a
particularly serious crime making her ineligible for withholding of removal. She
also argues that substantial evidence does not support the BIA’s denial of
protection under CAT and that the agency failed to review all of the relevant
evidence. We disagree with each claim and accordingly deny the petition for
review.
The protection of withholding of removal is not granted to aliens who have
been convicted of particularly serious crimes. 8 U.S.C. § 1231(b)(3)(B)(ii). “[A]
crime is particularly serious if the nature of the conviction, the underlying facts and
circumstances and the sentence imposed justify the presumption that the convicted
immigrant is a danger to the community.” Delgado v. Holder, 648 F.3d 1095, 1107
(9th Cir. 2011). While particularly serious crimes often involve physical harm to
another person, this is not always the case, and this court has previously upheld a
BIA decision which concluded that mail fraud was a particularly serious crime. See
Arbid v. Holder, 700 F.3d 379 (9th Cir. 2012).
Here, the BIA provided a reasoned explanation of its conclusion that
Smatsorabudh’s fraud offense constituted a particularly serious crime. The BIA
noted that Smatsorabudh had “devised and engaged in a sophisticated fraudulent
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scheme for over a year; it required importation of counterfeit goods in at least 32
separate shipments; [she] traveled to 12 different states to avoid detection; the loss
to the department store victims was over $403,000.00; [she] was ordered to pay
restitution in the same amount of the victims' losses; and she was sentenced to 30
months' imprisonment.” This case-specific analysis, along with the incorporated
reasoning of the IJ, provides sufficient information to infer that the BIA concluded
that Smatsorabudh was a danger to the community. Thus, the BIA did not abuse its
discretion in concluding that Smatsorabudh was guilty of a particularly serious
crime and ineligible for withholding of removal.
The BIA also did not err in denying Smatsorabudh’s application for
protection under CAT. “A petitioner seeking CAT relief must show
that it is more likely than not that [s]he will be tortured upon removal, and that the
torture will be inflicted at the instigation of, or with the consent or acquiescence of,
the government.” Arteaga v. Mukasey, 511 F.3d 940, 948 (9th Cir. 2007).
Smatsorabudh has not demonstrated that she would be tortured either by a
government actor or with the tacit consent of the Thai government. Instead, the
record demonstrates that she has not seen her ex-boyfriend, whom she fears may
torture her, since 2010, and that she has voluntarily returned to Thailand on two
occasions since moving to the United States without incident of torture.
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Additionally, while the record demonstrates prior police apathy to her reports of
abuse and stalking, these incidents do not establish that the police would breach
their legal obligation to prevent torture in the future. See 8 C.F.R. § 208.18(a)(7).
Finally, the BIA did not err in concluding that the IJ adequately considered
all evidence in making the CAT determination. When making such a
determination, the IJ must consider “all evidence relevant to the possibility of
future torture.” 8 C.F.R. § 208.16(c)(3). There is no indication that the IJ failed to
consider all of the evidence. Therefore, the IJ’s general statement that she had
considered all relevant evidence was sufficient. See Cole v. Holder, 659 F.3d 762,
771–72 (9th Cir. 2011).
PETITION DENIED.
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FILED
Smatsorabudh v. Barr, 19-70238 MAY 8 2020
MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
Although I agree with the majority’s denial of the claim for CAT relief, I
disagree that the agency considered all relevant factors when it concluded that
Smatsorabudh was ineligible for withholding of removal based on the particularly
serious crime bar. 8 U.S.C. § 1231(b)(3)(B)(ii). On that basis, I respectfully
dissent.
Our case law has created some confusion in the determination of whether a
conviction qualifies as a particular serious crime under § 1231(b)(3)(B)(ii). On
one hand, we have upheld the agency’s interpretation that it need not make a
“separate determination of dangerousness focusing on the likelihood of future
serious misconduct” by the applicant. Gomez-Sanchez v. Sessions, 892 F.3d 985,
991 (9th Cir. 2018) (quoting Ramirez–Ramos v. I.N.S., 814 F.2d 1394, 1397 (9th
Cir. 1987)). And yet, we have also held that a crime is particularly serious “if the
nature of the conviction, the underlying facts and circumstances[,] and the sentence
imposed justify the presumption that the convicted immigrant is a danger to the
community.” Id. (quoting Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir.
2013)) (emphasis and alteration in original). Properly construed, our caselaw
requires the agency consider dangerousness, “as the sine qua non of a particularly
serious crime,” Alphonsus, 705 F.3d at 1039, even if it need not make a separate
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finding as to future dangerousness, Ramirez–Ramos, 814 F.2d at 1397. See also
Matter of Carballe, 19 I. & N. Dec. 357, 360 (BIA 1986) (“The phrase ‘danger to
the community’ is an aid to defining a ‘particularly serious crime,’ not a mandate
that administrative agencies or the courts determine whether an alien will become a
recidivist.”).
As our cases also reveal, we look for the agency’s explicit consideration of
dangerousness. In Arbid v. Holder, cited by the majority and agency here, the IJ
specifically determined that, based on the nature and circumstances of the
petitioner’s conviction for wire fraud, the petitioner “certainly would be a danger
to the community.” 700 F.3d 379, 385 (9th Cir. 2012). Likewise, in Anaya-Ortiz
v. Holder, the IJ carefully explained why the petitioner’s conviction for “driving
under the influence of alcohol and personally inflicting great bodily injury”
constituted a danger. 594 F.3d 673, 679–80 (9th Cir. 2010). And when the agency
has not clearly considered an applicant’s danger to the community, we have
vacated the agency’s decision. See Alphonsus, 705 F.3d at 1043–47 (remanding
where agency considered only whether the applicant’s conviction for resisting
arrest was a “crime against the orderly pursuit of justice”). Here, as the majority
acknowledges, neither the BIA nor the IJ expressly considered Smatsorabudh’s
dangerousness. In fact, neither decision even mentions the word “danger.”
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The need for clear consideration of danger is particularly important here.
Smatsorabudh’s conviction for wire fraud is not one that either we or the agency
have construed as “inherently dangerous.” Cf. Avendano-Hernandez v. Lynch, 800
F.3d 1072, 1078 (9th Cir. 2015) (upholding agency’s determination that conviction
for driving under the influence and causing bodily injury was an “inherently
dangerous activity”); Gomez-Sanchez, 892 F.3d at 989 (assault with a deadly
weapon “inherently dangerous”). Nor was Smatsorabudh’s conviction for a “crime
against persons,” which “are more likely to be categorized as ‘particularly serious
crimes.’” Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014) (citation omitted).
Thus, there is no reason here to demand less than a clear explanation from the
agency as to why the nature and circumstances of Smatsorabudh’s conviction
“justify the presumption that [she] is a danger to the community.” Gomez-
Sanchez, 892 F.3d at 991.
It is not our decision to make in the first instance whether Smatsorabudh’s
involvement in a fraudulent handbag scheme makes her a danger to the
community—it is the agency’s. Unconvinced that the agency considered that
question, I would vacate and remand for further proceedings.
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