Amartsengel Sanjaa v. Jefferson Sessions , 863 F.3d 1161 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMARTSENGEL SANJAA, No. 13-73098
Petitioner,
Agency No
v. A200-684-960
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2017
Seattle, Washington
Filed July 21, 2017
Before: M. Margaret McKeown, Carlos T. Bea,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Bea
2 SANJAA V. SESSIONS
SUMMARY *
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of withholding of removal and
protection under the Convention Against Torture to a citizen
of Mongolia.
The panel held that substantial evidence supported the
Board’s determination that Sanjaa was targeted because of
his role in a drug-trafficking investigation, and not on
account of his political opinion, his purported
whistleblowing activity, or his status as a former police
officer.
The panel held that the witness protection provisions of
Article 24 of the United Nations Convention Against
Transnational Organized Crime (“UN-CATOC”) do not
provide an independent basis for relief from removal,
because UN-CATOC is not self-executing, and has not been
implemented through congressional legislation.
COUNSEL
Nicholas W. Marchi (argued), Carney & Marchi P.S.,
Seattle, Washington, for Petitioner.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SANJAA V. SESSIONS 3
Andrew B. Insenga (argued), Trial Attorney; Paul Fiorino,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
BEA, Circuit Judge:
Amartsengel Sanjaa, a native and citizen of Mongolia,
served as a police officer in his home country. When he
began to investigate a drug-trafficking operation that
involved Lkhagvasuren, a famous Mongolian singer, and
Naranbaatar, the son of a parliamentarian, Sanjaa was beaten
and threatened several times by unidentified individuals. The
individuals told Sanjaa that they knew he was a police officer
and demanded that he stop the drug-trafficking investigation
and destroy any evidence from the investigation. Although
the drug-trafficking investigation eventually led to the arrest
and trial of Lkhagvasuren and Naranbaatar, Sanjaa no longer
felt safe in Mongolia. In January 2006, he entered the United
States on an F-1 student visa.
Sanjaa remained in the United States without
authorization after his student status ended in February 2008.
The Department of Homeland Security issued him a Notice
to Appear in May 2010. Sanjaa conceded removability, but
applied for asylum, withholding of removal, and Convention
Against Torture (“CAT”) relief. The Immigration Judge
(“IJ”) found Sanjaa’s testimony credible, but denied all
forms of relief. The Board of Immigration Appeals (“BIA”)
affirmed the IJ’s decision and dismissed Sanjaa’s appeal.
Sanjaa conceded his ineligibility for asylum because he filed
his application after the one-year deadline imposed by the
4 SANJAA V. SESSIONS
REAL ID Act. See 8 U.S.C. § 1158(a)(2)(B). The BIA
denied Sanjaa’s withholding of removal claim because
Sanjaa’s persecution resulted not from his political opinion
or membership in a particular social group, but from his role
in the drug-trafficking investigation. The BIA denied
Sanjaa’s application for CAT relief because Sanjaa failed to
establish that it was more likely than not that, if returned to
Mongolia, Sanjaa would be tortured by or with the
acquiescence of the Mongolian government. Sanjaa has
never been tortured by government officials, and the police
investigated every incident of harassment and violence
reported by Sanjaa.
The BIA also addressed Sanjaa’s argument that he was
entitled to relief from removal under the United Nations
Convention Against Transnational Organized Crime (“UN-
CATOC”). 1 The UN-CATOC is a treaty signed and ratified
by the United States that aims, in relevant part, to protect
witnesses of transnational organized crime from retaliation
and intimidation. The BIA concluded that the UN-CATOC
does not provide an independent basis for relief from
removal. Sanjaa timely appealed.
We have jurisdiction under 8 U.S.C. § 1252. We deny
the petition for review.
I. Withholding of Removal and CAT Relief
We review denials of withholding of removal and CAT
relief for substantial evidence. See, e.g., Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). To reverse the
BIA, we must determine “‘that the evidence not only
1
The United Nations Convention Against Transnational Organized
Crime art. 24, Nov. 15, 2000, 2225 U.N.T.S. 209.
SANJAA V. SESSIONS 5
supports [a contrary] conclusion, but compels it—and also
compels the further conclusion’ that the petitioner meets the
requisite standard for obtaining relief.” Id. (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)).
“To qualify for withholding of removal, an alien must
demonstrate that it is more likely than not that he would be
subject to persecution on one of the specified grounds.” See
Robleto-Pastora v. Holder, 591 F.3d 1051, 1057 (9th Cir.
2010) (citation omitted). 2 “While a showing of past
persecution entitles an alien to a presumption of eligibility
for withholding of removal, it is the alien’s burden to
establish such persecution.” Id.
The BIA found Sanjaa ineligible for withholding of
removal because the private individuals who assaulted
Sanjaa did not persecute him on account of his political
opinion or membership in a particular social group. Sanjaa
argues that the BIA erred because the evidence compels the
conclusion that he was persecuted on account of his status as
a whistleblower, his pro-government political opinion, and
his membership in the particular social group of former
police officers. We disagree.
As an initial matter, the physical harm Sanjaa suffered in
Mongolia rose to the level of “persecution.” See Ahmed v.
Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007). However,
2
See also 8 C.F.R. § 1208.13(b)(1) (“An applicant shall be found to
be a refugee on the basis of past persecution if the applicant can establish
that he or she has suffered persecution in the past in the applicant’s
country of nationality or, if stateless, in his or her country of last habitual
residence, on account of race, religion, nationality, membership in a
particular social group, or political opinion, and is unable or unwilling to
return to, or avail himself or herself of the protection of, that country
owing to such persecution.”).
6 SANJAA V. SESSIONS
Sanjaa failed to meet his burden to establish that he was
persecuted “on account of” one of the statutorily protected
grounds. See Barajas-Romero v. Lynch, 846 F.3d 351, 360
(9th Cir. 2017) (holding that petitioners who apply for
withholding of removal must establish that a statutorily
protected ground was “a reason” for their persecution). We
address each of Sanjaa’s claims below.
A. Political Opinion and Whistleblower Status
The BIA did not err in concluding that Sanjaa was not
persecuted on account of his political opinion. Sanjaa stated
in his declaration and testimony that his assailants attacked
him because of his role in the drug-trafficking investigation.
His attackers said nothing during their attacks about any
political opinion held by Sanjaa, and nothing else in the
record implies that Sanjaa’s political opinion had anything
to do with the attacks. Therefore, the evidence does not
compel the conclusion that Sanjaa was persecuted on
account of his political opinion. See Cruz-Navarro v. INS,
232 F.3d 1024, 1030 (9th Cir. 2000) (“During their attack,
the guerillas referred to Cruz as a ‘policeman’ and
‘informer.’ Neither of these references implies that the
guerillas believed Cruz to hold political beliefs contrary to
their own, much less that they attacked him because of such
beliefs.”); see also Grava v. INS, 205 F.3d 1177, 1181 n.3
(9th Cir. 2000) (“Purely personal retribution is, of course,
not persecution on account of political opinion.”).
The evidence also does not compel the conclusion that
Sanjaa was attacked on account of any whistleblowing
activity. Whistleblowing and opposition to government
corruption may constitute the expression of a political
opinion. See Baghdasaryan v. Holder, 592 F.3d 1018, 1024
(9th Cir. 2010); Sagaydak v. Gonzales, 405 F.3d 1035, 1042
(9th Cir. 2005) (“[A] victim who is targeted for exposing
SANJAA V. SESSIONS 7
government corruption is persecuted ‘on account of’
political opinion. Retaliation for investigating or publicizing
corruption by political figures is by its very nature a political
act.”). However, Sanjaa did not investigate or publicize
corruption by political figures. 3 He investigated a criminal
drug-trafficking operation. His attackers told Sanjaa he was
being attacked because of his role in the drug-trafficking
investigation; they said nothing about any reports Sanjaa
made regarding police or government corruption. Moreover,
Sanjaa never reported his belief that the police were corrupt
to the authorities, even though his fellow police officers
advised him to report the perceived corruption to the Special
Crimes Investigation Team at the City Police Department.
Therefore, the evidence does not compel the conclusion that
Sanjaa was persecuted because of his purported
whistleblowing activity or opposition to government
corruption.
B. Particular Social Group of Former Police Officers
The BIA also did not err in its conclusion that Sanjaa was
not persecuted on account of his membership in the
particular social group of former police officers. The Ninth
Circuit has recognized “that a particular social group of
former officers is conceivable.” Ayala v. Holder, 640 F.3d
1095, 1097 (9th Cir. 2011) (emphasis added). Therefore, we
must consider whether the evidence of persecution Sanjaa
experienced after he quit his job as a police officer compels
the conclusion that Sanjaa was attacked on account of his
3
The fact that Sanjaa investigated the relative of a political figure is
irrelevant. Although some would say that all politicians are crooks, no
one says that all crooks are politicians.
8 SANJAA V. SESSIONS
membership in the particular social group of former police
officers.
The sole instance of persecution that Sanjaa experienced
after he quit his job as a police officer—a physical attack by
unknown individuals in an internet café Sanjaa owned—
occurred in response to a meeting Sanjaa had with police
officers involved in the drug-trafficking investigation. The
unknown individuals told Sanjaa that they were sent by
Lkhagvasuren, the famous Mongolian singer. They also told
Sanjaa that he should not testify. The personal retribution
Sanjaa suffered at his internet café because of his role in the
drug-trafficking investigation is not cognizable under the
INA. See Ayala, 640 F.3d at 1098 (“[I]f a former police
officer [is] singled out for reprisal, not because of his status
as a former police officer, but because of his role in
disrupting particular criminal activity, he [is] not . . .
considered, without more, to have been targeted as a member
of a particular social group.” (quoting Matter of C-A-, 23 I.
& N. Dec. 951, 959 (BIA 2006))). Therefore, Sanjaa’s claim
that he was persecuted on account of his membership in the
particular social group of former police officers in Mongolia
also fails.
II. United Nations Convention Against Transnational
Organized Crime
This court reviews de novo the interpretation and
application of treaty language. See, e.g., King Mountain
Tobacco Co. v. McKenna, 768 F.3d 989, 992 (9th Cir. 2014).
When the BIA is not charged with administering a statute—
or in this case, a treaty—the BIA’s interpretation of that
statute or treaty is not afforded any deference. See, e.g.,
Covarrubias Teposte v. Holder, 632 F.3d 1049, 1052 (9th
Cir. 2011).
SANJAA V. SESSIONS 9
Sanjaa argues that Article 24 of the UN-CATOC
provides an independent basis for relief from removal.
Article 24 of the UN-CATOC reads as follows:
1. Each State Party shall take appropriate
measures within its means to provide
effective protection from potential retaliation
or intimidation for witnesses in criminal
proceedings who give testimony concerning
offences covered by this Convention and, as
appropriate, for their relatives and other
persons close to them.
2. The measures envisaged in paragraph 1 of
this article may include, inter alia, without
prejudice to the rights of the defendant,
including the right to due process:
(a) Establishing procedures for the
physical protection of such persons, such
as, to the extent necessary and feasible,
relocating them and permitting, where
appropriate, non-disclosure or limitations
on the disclosure of information
concerning the identity and whereabouts
of such persons;
(b) Providing evidentiary rules to permit
witness testimony to be given in a manner
that ensures the safety of the witness,
such as permitting testimony to be given
through the use of communications
technology such as video links or other
adequate means.
10 SANJAA V. SESSIONS
3. State Parties shall consider entering into
agreements or arrangements with other States
for the relocation of persons referred to in
paragraph 1 of this article.
4. The provisions of this article shall also
apply to victims insofar as they are witnesses.
UN-CATOC art. 24. Whether the witness-protection
provisions in Article 24 of the UN-CATOC provide an
independent basis for relief from removal is a matter of first
impression in the Ninth Circuit. However, the Second
Circuit has held that the witness-protection provisions do not
provide an independent basis for relief from removal. See
Doe v. Holder, 763 F.3d 251, 257 (2d Cir. 2014). In Doe, the
Second Circuit denied the petition for review of a native and
citizen of Ghana who argued that the witness-protection
provisions in Article 24 of the UN-CATOC provide an
independent basis for relief from removal in immigration
proceedings. Id. at 254. The Second Circuit explained that
Article 24 of the UN-CATOC could not be domestically
enforced unless its provisions are “self-executing” or were
implemented through congressional legislation. Id. at 255;
see also Medellín v. Texas, 552 U.S. 491, 505 (2008)
(“[W]hile treaties may comprise international commitments
. . . they are not domestic law unless Congress has either
enacted implementing statutes or the treaty itself conveys an
intention that it be ‘self-executing’ and is ratified on these
terms.” (citation omitted)).
Since the UN-CATOC’s ratification, Congress has not
passed legislation to implement the witness-protection
provisions in Article 24. See Doe, 763 F.3d at 256–57.
Therefore, the Second Circuit analyzed whether the witness-
SANJAA V. SESSIONS 11
protection provisions in Article 24 of the UN-CATOC are
“self-executing.” Id. at 255–57. 4
Courts interpret the text of a treaty de novo to determine
whether its provisions are self-executing. See Medellín,
552 U.S. at 514 (“The interpretive approach employed by
the Court today—resorting to the text—is hardly novel.”).
Article 24 of the UN-CATOC pledges that each state party
“shall take appropriate measures within its means to provide
effective protections” for witnesses. These measures “may
include, inter alia,” physical protection, relocation, non-
disclosure of the witness’s identity and location, or the use
of video-link testimony. Reading Article 24 as a whole and
in context, the permissive language leaves each state party
to implement whichever protections are “appropriate” 5 and
“within its means.” This provision “addresses itself to the
political, not the judicial branch,” so it is not “a rule for the
Court.” Medellín, 552 U.S. at 516 (citation omitted). In
addition, the use of the nebulous term “effective”—which is
never defined in the treaty—further demonstrates that
Article 24 is not a “directive to domestic courts” that “by
itself give[s] rise to domestically enforceable federal law.”
Id. at 505 n.2, 508. We agree with the Second Circuit that
4
We note that the question whether a treaty is self-executing is
distinct from whether the treaty provides a private right of action. See
Medellín, 552 U.S. at 506 n.3.
5
Webster’s defines “appropriate” as “belonging peculiarly,”
“special,” or “fit or proper; suitable; as appropriate manners.” Webster’s
New Unabridged Twentieth Century Dictionary of the English Language
91 (2d ed. 1979). There is scarcely a word more descriptive of unbridled
subjective discretion than “appropriate.” It has no objective meaning and
cannot be used to describe what is an obligation, as opposed to a choice.
12 SANJAA V. SESSIONS
the discretionary and vague language in Article 24 reflects a
“non-self-executing undertaking.” Doe, 763 F.3d at 256.
The Second Circuit also concluded that Article 34 of the
UN-CATOC, titled “Implementation of the Convention,”
reflects an understanding that the provisions of the UN-
CATOC would not be self-executing. Id. Article 34 provides
that “[e]ach State Party shall take necessary measures,
including legislative and administrative measures . . . to
ensure the implementation of its obligations under this
Convention.” UN-CATOC art. 34 (emphasis added).
Moreover, Article 34 states that a signatory must “take
necessary measures” only “in accordance with fundamental
principles of its domestic law . . . .” Id. Because Article 34
of the UN-CATOC acknowledges that legislative and
administrative action could be necessary to implement the
UN-CATOC, the Second Circuit concluded that the
mandatory language in Article 24 of the UN-CATOC—that
signatories “shall take appropriate measures” to provide
effective witness protection—did not create a self-executing
obligation. See Doe, 763 F.3d at 256.
The Second Circuit also analyzed interpretations of the
UN-CATOC by the executive branch. See id. at 256–57; see
also Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S.
176, 184–85 (1982) (“Although not conclusive, the meaning
attributed to treaty provisions by the Government agencies
charged with their negotiation and enforcement is entitled to
great weight.”). “When submitting the treaty to the
President, the Secretary of State explained that the witness-
protection measures under Article 24 are undertaken ‘in [a
State Party’s] discretion,’ and recommended that the Senate
include a declaration that the only exceptions to the ‘general
understanding that the provisions of the [UN-CATOC] are
non-self-executing’ are the detailed provisions of Articles 16
SANJAA V. SESSIONS 13
and 18.” Doe, 763 F.3d at 256 (quoting S. Treaty Doc. No.
108–16 (2004)). 6 Because the plain language of the UN-
CATOC does not support a reading that the witness-
protection provisions in Article 24 are self-executing and the
interpretation of those provisions by the executive branch
conforms to the natural reading of the treaty’s text, the
Second Circuit held that Article 24 was not self-executing
and therefore did not provide an independent basis for relief
from removal.
We adopt the persuasive reasoning of the Second Circuit
and hold that the UN-CATOC does not provide an
independent basis for relief from removal in immigration
proceedings. Because the UN-CATOC has not been
implemented through congressional legislation and is not
self-executing as to the relief sought here, petitioners may
not rely on its provisions for relief from removal.
PETITION DENIED.
6
Article 16 describes extradition obligations. UN-CATOC art. 16.
Article 18 provides that signatories “shall afford one another the widest
measure of mutual legal assistance in investigations, prosecutions and
judicial proceedings in relation to the offences covered by this
Convention . . . .” UN-CATOC art. 18.