Go v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODERICK LIM GO, 

Petitioner, No. 06-71575

v.

 Agency No.

A095-617-600

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 9, 2011—Pasadena, California

Filed May 5, 2011

Before: J. Clifford Wallace and Susan P. Graber, Circuit

Judges, and Richard Mills,* Senior District Judge.

Opinion by Judge Wallace

*The Honorable Richard Mills, Senior United States District Judge for

the Central District of Illinois, sitting by designation.

5967

5970 GO v. HOLDER

COUNSEL

P. Joseph Sandoval, Gallagher Sandoval, PC, Los Angeles,

California; and Robert G. Berke, Berke Law officers, Canoga

Park, California, for the petitioner.

GO v. HOLDER 5971

C. Erb, Jr., and Don G. Scroggins, Office of Immigration Liti-

gation, United States Department of Justice, Washington,

D.C., for the respondent.

OPINION

WALLACE, Senior Circuit Judge:

Roderick Lim Go petitions for review from a decision of

the Board of Immigration Appeals (Board) denying his claims

for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction pur-

suant to 8 U.S.C. § 1252(b), and we deny Go’s petition.

I.

Go, a native and citizen of the Philippines, entered the

United States in early 2003 pursuant to a non-immigrant visa.

Though his visa expired in August 2003, Go did not depart or

otherwise obtain authorization to remain in the United States.

In November 2003, Go was charged with being a removable

alien for overstaying the term of his temporary visa.

Go contested removability and filed an application for asy-

lum, withholding of removal, and protection under the CAT.

Go alleged that he and his wife, Grace Tan Go,1 would be

subject to a sham criminal prosecution in the Philippines if

removed to that country. According to Go, he and his wife

had been falsely charged with kidnapping James King, a

member of a prominent family that resides in the Cebu region

of the Philippines. Go and his wife assert that they fled to the

United States to escape prosecution and to avoid retaliation by

the King family, which allegedly has significant political

influence over the government in Cebu. With respect to the

1

We address Tan Go’s claims in a memorandum decision filed concur-

rently with this opinion.

5972 GO v. HOLDER

CAT, Go averred that he would be subject to torture if he

were held in a Philippine detention facility pending his trial

for kidnapping.

At his August 2004 removal hearing before an immigration

judge (IJ), Go and the government each presented several wit-

nesses, affidavits, and other documentary evidence describing

the Philippine criminal justice system and the kidnapping

charges against the Gos. Go testified that he had become

involved in a drug-trafficking organization operated by King

in early 2002. Together, Go and King devised a “check kit-

ing” scheme to finance the purchase of illegal narcotics.

Approximately six months after Go joined the scheme, how-

ever, he and King had some sort of falling out. The evidence

supported two versions of what happened: either Go kid-

napped and assaulted King over a financial disagreement, or

King fabricated the charges to conceal his role in the illegal

scheme.

At the conclusion of the hearing, the IJ determined that the

evidence weighed against granting Go’s claims for relief.

Relying on Go’s admission to being involved in an illegal

drug-trafficking scheme, the IJ found him statutorily ineligi-

ble for asylum and withholding of removal. With respect to

Go’s claim that his kidnapping charges were pretext for gov-

ernment persecution, the IJ concluded that the charges had

been initiated as part of a legitimate criminal prosecution. See

Chanco v. INS, 82 F.3d 298, 301 (9th Cir. 1996) (holding that

“[p]ersons avoiding lawful prosecution for common crimes

are not ordinarily deemed refugees”). Then, relying on a gov-

ernment witness, who testified that Go would not be tortured

in a Philippine detention facility while awaiting trial, the IJ

concluded that Go failed to carry his burden of demonstrating

eligibility for relief under the CAT.

The Board denied Go’s subsequent appeal in two separate

orders. In a May 2005 order, the Board agreed with the IJ that

Go was statutorily ineligible for asylum and withholding of

GO v. HOLDER 5973

removal. Go’s CAT claim, however, was remanded for fur-

ther proceedings. According to the Board, the IJ may not have

considered various country reports suggesting a relatively

high frequency of abuse and mistreatment in Philippine deten-

tion facilities. The Board also expressed concern that the IJ

had improperly excluded testimony from a Philippine defense

attorney, who was familiar with the kidnapping charges filed

against Go.

After the IJ held additional proceedings, which addressed

these concerns, the Board issued a March 2006 order rejecting

Go’s claim for relief under the CAT. Relying on new evi-

dence that had been introduced on remand, the Board con-

cluded that Go was unlikely to be tortured in a Philippine

detention facility. In a divided decision, the Board empha-

sized that one of Go’s co-defendant’s in the kidnapping, who

had been detained pending trial, had not been tortured or oth-

erwise mistreated. The Board also cited the testimony of

Cezar Tajanlangit, a former prosecutor in the Philippines, who

testified that torture was uncommon in the facility where Go

would be detained. Relying on Tajanlangit’s testimony, the

Board reasoned that the potential for torture was reduced

because the kidnapping charges against Go had generated sig-

nificant media attention in Cebu. The “notoriety” of the kid-

napping case, the Board explained, “makes it unlikely that an

ill-intentioned officer would believe that he could abuse [Go]

without being reported in the press.” The Board further con-

cluded that torture in a government detention facility was not

likely because the Philippine Justice Department had recently

issued a resolution calling for the dismissal of the kidnapping

charges levied against Go.

Go now petitions for review of the Board’s May 2005 order

denying his claims for asylum and withholding of removal

and its March 2006 order denying his claim for protection

under the CAT.

5974 GO v. HOLDER

II.

Before addressing the merits of Go’s petition for review,

we first consider the parameters of our jurisdiction over his

claims. Under the Immigration and Nationality Act (INA), an

alien must file his petition for review “not later than 30 days

after the date of the final order of removal.” 8 U.S.C.

§ 1252(b)(1). Here, the Board denied Go’s asylum and with-

holding claims in a May 2005 order, but remanded Go’s CAT

claim for further proceedings. Go’s CAT claim was then

rejected in a March 2006 order. Because Go did not appeal

the Board’s denial of his claims for asylum and withholding

of removal within thirty days of the May 2005 order, the gov-

ernment asks us to clarify whether we have jurisdiction to

review those claims.

Our jurisdiction extends to each of Go’s claims for relief,

including his asylum and withholding claims. The Board’s

May 2005 order may have been the final administrative deci-

sion with respect to Go’s eligibility for asylum and withhold-

ing relief, but that decision was not a final order of removal

because it left open the possibility that Go might obtain CAT

relief. Under the INA, an order of removal does not become

administratively final until the earlier of a “(i) a determination

by the Board of Immigration Appeals affirming such order; or

(ii) the expiration of the period in which the alien is permitted

to seek review of such order by the Board of Immigration

Appeals.” 8 U.S.C. § 1101(a)(47)(B). Because the Board

remanded Go’s CAT claim for further proceedings, his

removal order did not become final until the Board rejected

all claims. See id. As the Supreme Court has explained, “the

term ‘final order[ ]’ . . . includes all matters on which the

validity of the final order is contingent.” See INS v. Chadha,

462 U.S. 919, 938 (1983) (some internal quotation marks

omitted). Here, Go’s final order of removal is contingent, at

least in part, on the denial of his claim for asylum, his with-

holding claim, and his claim pursuant to the CAT. We there-

fore have jurisdiction to consider each of these claims. See id.

GO v. HOLDER 5975

Our analysis holds true notwithstanding our decision in

Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995). There,

we held that a remand to the Board for the sole purpose of

considering an alien’s request for voluntary departure did not

affect the finality of the Board’s removal order. Id. at

1361-62. We reached this conclusion because the removal

decision was final, that is, the immigration tribunals had

definitively resolved that petitioner Castrejon-Garcia would

be required to leave the United States (whether voluntarily or

involuntarily). Id. at 1362. Here, on the other hand, the

Board’s remand of Go’s CAT claim left open the possibility

that he would obtain relief from removal. See 8 C.F.R.

§ 1208.17(a) (providing that an alien is entitled to deferral if

“he or she is more likely than not to be tortured”). Accord-

ingly, because Go’s removal order did not become final until

the Board rejected each of his claims for relief, and given that

Go filed his petition for review of all three claims within

thirty days of the Board’s March 2006 final order, our juris-

diction extends to each of his claims.

III.

Having determined that jurisdiction is proper, we turn now

to the merits of Go’s petition. The INA bars an applicant from

obtaining asylum and withholding relief when “there are seri-

ous reasons” to believe that he or she “committed a serious

nonpolitical crime” before arriving in the United States. 8

U.S.C. §§ 1158(b)(2)(A)(iii) (asylum), 1231(b)(3)(B)(iii)

(withholding). We interpret “ ‘serious reasons’ to believe” as

being tantamount to probable cause. McMullen v. INS, 788

F.2d 591, 599 (9th Cir. 1986), overruled on other grounds by

Barapind v. Enomoto, 400 F.3d 744, 751 n.7 (9th Cir. 2005)

(en banc) (per curiam). Under our precedent, we must uphold

the Board’s conclusion that an alien is ineligible for relief if

that determination is supported by “substantial evidence.” See

id. “We may reverse the decision of the Board only if the

applicant shows that the evidence compels the conclusion that

5976 GO v. HOLDER

the asylum decision was incorrect.” See Gu v. Gonzales, 454

F.3d 1014, 1018 (9th Cir. 2006).

[1] We agree with the Board’s ruling that Go’s drug-

trafficking activities prior to entering the United States bar

him from obtaining asylum and withholding relief. In consid-

ering drug-trafficking offenses under the INA, we have con-

sistently deferred to the Board’s conclusion that these

offenses presumptively constitute “particularly serious

crimes.” See Miguel-Miguel v. Gonzales, 500 F.3d 941, 949

(9th Cir. 2007) (evaluating whether an alien was statutorily

eligible for withholding under a similar provision contained in

8 U.S.C. § 1231(b)(3)(B)(ii)). Because “a ‘particularly serious

crime’ is more serious than a ‘serious nonpolitical crime,’ ” it

follows that drug trafficking is presumptively a serious

offense under sections 1158(b)(2)(A)(iii) and

1231(b)(3)(B)(iii). See In re Frentescu, 18 I. & N. Dec. 244,

247 (B.I.A. 1982), modified on other grounds by In re C-, 20

I. & N. Dec. 529 (B.I.A. 1992); Ramirez-Peyro v. Gonzales,

477 F.3d 637, 639 (8th Cir. 2007) (treating drug trafficking as

a “serious nonpolitical crime” under the INA). Here, Go

points to nothing to rebut the presumption that his drug-

trafficking offense constitutes a serious crime, and he does not

identify any facts showing that his offense had some “political

aspect” or “political objective.” See INS v. Aguirre-Aguirre,

526 U.S. 415, 429 (1999) (explaining that a serious crime is

nonpolitical if it lacks a “political aspect” or “is grossly out

of proportion to the political objective” (internal quotation

marks omitted)). We therefore accept the Board’s conclusion

that Go’s drug-trafficking offense constitutes a serious nonpo-

litical crime.

[2] We also agree with the Board’s determination that

there are serious reasons for believing that Go actually com-

mitted this offense. During his removal hearing, Go explicitly

admitted under oath to being involved in a scheme to finance

“drug transactions” while living in the Philippines. He then

stated that he knowingly drove an accomplice to “drug deals”

GO v. HOLDER 5977

for a period of six months. These admissions are sufficient to

establish probable cause for believing that Go engaged in a

drug-trafficking scheme before entering the United States. See

McMullen, 788 F.2d at 599; United States v. Brady, 819 F.2d

884, 889 (9th Cir. 1987) (defendant’s admission to a particu-

lar offense is sufficient to establish probable cause to believe

that he actually committed that offense). Because the record

does not compel the conclusion that probable cause was lack-

ing, we must uphold the Board’s conclusion that Go’s offense

renders him ineligible for asylum and withholding relief under

sections 1158(b)(2)(A)(iii) and 1231(b)(3)(B)(iii). See Gu,

454 F.3d at 1018.

IV.

[3] Although Go’s drug-trafficking crime renders him inel-

igible for asylum and withholding of removal, that offense

does not affect his eligibility for deferral relief under the

CAT. See 8 C.F.R. § 1208.17(a); Ramirez-Peyro, 477 F.3d at

639. To prevail under the CAT, “an applicant must show ‘that

it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.’ ” Santos-Lemus

v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008), quoting 8

C.F.R. § 1208.16(c)(2). The applicant must also demonstrate

that the torture will “be inflicted ‘by or at the instigation of

or with the consent or acquiescence of a public official.’ ” Id.,

quoting 8 C.F.R. § 1208.18(a)(1). The Board’s denial of an

applicant’s CAT claim will be overturned only if the evidence

would compel a reasonable factfinder to conclude that it is

more likely than not that the alien will be subjected to torture.

Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004).

[4] Although some instances of abuse and mistreatment

have been reported in Philippine detention facilities, the

Board reasonably concluded that it is unlikely that Go will be

tortured in the Philippines. We have emphasized that the lack

of harm to similarly situated family members and close asso-

ciates generally undercuts an alien’s fear of harm at the hands

5978 GO v. HOLDER

of the government. See, e.g., Rodriguez-Rivera v. INS, 848

F.2d 998, 1006 (9th Cir. 1988). Here, Go was not the only

person charged with kidnapping King. Yet, one of his alleged

accomplices has been detained for some time without harm or

incident. Similarly, while several of Go’s family members

have been charged with participating in Go’s alleged crimes,

none has been taken into government custody, placed in a

detention center, or tortured. See id.

[5] The likelihood of torture is further reduced in this case

because the Philippine government has ordered that the kid-

napping charges against Go be dismissed. If Go is no longer

subject to a criminal prosecution in the Philippines, it follows

that he is unlikely to be detained, let alone tortured. Similarly,

Go’s ability to defend successfully against his kidnapping

charges indicates that he will not be unable to vindicate his

legal rights upon return to the Philippines, including his right

to seek protection from illegal torture. See An Act Penalizing

Torture and Other Cruel, Inhuman and Degrading Treatment

or Punishment and Prescribing Penalties Therefore, Rep. Act

No. 9745 (Nov. 10, 2009) (Phil.) (prohibiting torture and

enacting harsh penalties on those that abuse or otherwise mis-

treat individuals “placed under investigation or held in custo-

dy”).

Moreover, even if the kidnapping charges do go forward,

additional evidence supports the Board’s finding that Go is

not likely to be tortured in the Philippines. At Go’s second

hearing before the IJ, Tajanlangit, a former prosecutor in

Cebu, testified that torture is not common in the facility where

Go would be detained. Tajanlangit stated that “nothing unto-

ward” would happen to Go if he is detained during the pen-

dency of a potential trial. Rather, the “controversial” nature of

Go’s case would increase public scrutiny over the govern-

ment’s conduct and would “make[ ] it unlikely that an ill-

intentioned officer would believe that he could abuse [Go]

without being reported in the press.”

GO v. HOLDER 5979

[6] Go counters that his credible testimony and the country

reports in the record compel the conclusion that he is likely

to be tortured. We disagree. Although Go testified that he

fears torture if detained while awaiting trial, other evidence

supports the Board’s conclusion that his fear is unfounded. As

we have explained, “[t]he possibility of drawing two inconsis-

tent conclusions from the evidence does not prevent an

administrative agency’s finding from being supported by sub-

stantial evidence.” Singh-Kaur v. INS, 183 F.3d 1147, 1150

(9th Cir. 1999) (internal quotation marks omitted); see also

Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.

2005) (indicating that even when an alien’s testimony is cred-

ited, an immigration court may also consider the other evi-

dence contained in the record in reaching its decision). Thus,

Go has not sustained his burden of proof on his CAT claim.

[7] Go correctly points out that the country reports

describe several instances of abuse and corruption within the

Philippine criminal justice system. Nevertheless, other infor-

mation contained in these reports supports the Board’s con-

clusion that torture is unlikely. See Gonzalez-Hernandez v.

Ashcroft, 336 F.3d 995, 999-1000 (9th Cir. 2003) (explaining

that the Board may use its expertise in considering “contradic-

tory” and “ambiguous” country reports and “decid[ing] which

portions of the report are relevant to the applicant”). Accord-

ing to these reports, Philippine officials are “more likely to

follow correct procedures” when a criminal suspect hails from

“an influential position or is of a higher social status.” Here,

the undisputed record provides that Go belongs to an affluent

family that maintains a fairly high social status in the Philip-

pines.

[8] Similarly, while the country reports contain generalized

evidence suggesting a relatively high level of mistreatment

and abuse, the “notoriety” of Go’s kidnapping charges sup-

ports the conclusion that Go is unlikely, under the specific cir-

cumstances of this case, to be harmed or mistreated in the

Philippines. See Afriyie v. Holder, 613 F.3d 924, 933-34 (9th

5980 GO v. HOLDER

Cir. 2010) (explaining that the Board may give specific evi-

dence greater weight than general information contained in a

country report). Viewing the record as a whole, we therefore

hold that substantial evidence supports the Board’s conclusion

that Go is not likely to be tortured upon return to the Philip-

pines, and thus Go did not meet his burden of proof.

V.

[9] Finally, we reject Go’s argument that he was deprived

of his right to due process. As we have explained numerous

times, the Fifth Amendment guarantees due process in immi-

gration proceedings. See, e.g., Lara-Torres v. Ashcroft, 383

F.3d 968, 973 (9th Cir. 2004). This requires that “an alien [be]

given a full and fair opportunity to be represented by counsel,

to prepare an application for . . . relief, and to present testi-

mony and other evidence in support of [that] application.”

Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir.

2007).

[10] Go contends that the Board and the IJ violated his due

process rights by crediting and relying on Tajanlangit’s testi-

mony, which Go describes as “questionable” and “inconsis-

tent with reality.” Although the government does not usually

present live witnesses during an alien’s removal hearing,

nothing precludes the government from doing so. Under our

precedent, “[t]he sole test for admission of evidence” in immi-

gration proceedings “is whether the evidence is probative and

its admission is fundamentally fair.” Rojas-Garcia v. Ash-

croft, 339 F.3d 814, 823 (9th Cir. 2003) (internal quotation

marks omitted). Tajanlangit’s testimony, which was clearly

relevant and based on personal knowledge, did not deprive Go

of a fundamentally fair proceeding. See id. Go had the oppor-

tunity to cross-examine Tajanlangit, to present contrary evi-

dence, and to impeach his testimony. There is nothing in the

record compelling the conclusion that Tajanlangit’s testimony

somehow precluded Go from presenting his claims for relief.

GO v. HOLDER 5981

[11] Moreover, this case does not involve a true credibility

determination. Neither the Board nor the IJ ruled Tajanlangit

to be truthful or untruthful. Instead, the immigration courts

simply weighed the probative value of inconsistent and vary-

ing testimony to determine where the preponderance fell. See

Ochave v. INS, 254 F.3d 859, 866 (9th Cir. 2001) (even if the

evidence can be read as supporting a credible applicant’s

claims, when there is “substantial evidence tending in the

other direction[,] . . . our standard of review dictates” that we

defer to the Board). That the Board ultimately weighed the

totality of the evidence in the government’s favor and held

that Go failed to meet his burden of proof did not deprive Go

of his right to due process. See id.

PETITION DENIED.