Pagayon v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRYAN VINCENT I. PAGAYON, a.k.a. 

Deny Moniker, a.k.a. Bryan Nos. 07-74047

Vincent Idhaw, and

Petitioner, 07-75129

v.  Agency No.

ERIC H. HOLDER Jr., Attorney A45-622-497

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 13, 2011—San Francisco, California

Filed June 24, 2011

Before: Alex Kozinski, Chief Judge, N. Randy Smith,

Circuit Judge, and Frederic Block, District Judge.*

Per Curiam Opinion

*The Honorable Frederic Block, Senior United States District Judge for

the Eastern District of New York, sitting by designation.

8617

8620 PAGAYON v. HOLDER

COUNSEL

Victor Jih and Victoria Schwartz (argued), O’Melveny &

Myers LLP, Los Angeles, California; Jessica Barclay-Strobel

(argued), UCLA School of Law Ninth Circuit Clinic, Los,

Angeles, California, for the petitioner.

Michael C. Heyse, United States Department of Justice, Civil

Division, Office of Immigration Litigation, Washington, D.C.,

for the respondent.

OPINION

PER CURIAM:

Bryan Vincent I. Pagayon petitions for review of an order

of the Board of Immigration Appeals directing his removal,

as well as the Board’s order denying reconsideration. We

deny the petitions, and write principally to address Pagayon’s

claim that the removal order was improperly based, in part, on

admissions he made before the immigration judge (IJ).

I

Pagayon, a native of the Philippines, was a legal permanent

resident of the United States. On November 30, 2006, he was

placed into removal proceedings based on allegations that he

had been convicted of violations of (1) section 12021(a)(1) of

the California Penal Code, relating to possession of firearms

by felons and drug addicts, and (2) section 11377(a) of the

California Health and Safety Code, relating to possession of

controlled substances.

At an initial hearing before the IJ, the government produced

an abstract of judgment and the two informations that ostensi-

bly underlay the convictions. The IJ summarized the

PAGAYON v. HOLDER 8621

documents—copies of which were given to Pagayon—as fol-

lows:

They’ve given to you and to me a copy of an abstract

of judgment list[ing] as Count A-l, possession, fire-

arm, felon or addict. . . . Two-year sentence. . . .

Count B-2, possession controlled substance.

Attached to this is a copy of an information, posses-

sion of firearm by a felon, one prior, in violation of

Penal Code 12021(a)(1), felony. . . . There’s another

information following. Count 2 there was listed as

possession, controlled substance, 11377(a), listing it

as methamphetamine. It looks like on the abstract of

judgment it indicates convicted by jury as to the first

count, and as to possession of controlled substance,

it looks like it was based upon a plea.

When the IJ asked, “Are these your convictions?” Pagayon

responded, “Yes, Your Honor.”

Pagayon did not initially dispute the IJ’s representation that

those convictions rendered him removable. Instead, he

applied for relief from removal and, in addition, advanced a

claim of citizenship through his maternal grandmother. Based

on the claim of citizenship, a successor IJ allowed Pagayon to

withdraw his admission of removability.

At a later hearing before the new IJ, Pagayon testified as to

the basis for his claim for relief from removal. Because the IJ

did not make an adverse credibility determination, we take

Pagayon’s testimony as true. See Kalubi v. Ashcroft, 364 F.3d

1134, 1137 (9th Cir. 2004).

Pagayon’s father worked as an investigator for the Philip-

pines’ National Bureau of Investigation. He was shot to death

on November 27, 1984. Pagayon, then seven years old,

recalled hearing family members and his father’s co-workers

8622 PAGAYON v. HOLDER

opining that his father had been murdered by members of the

National Police (NP) in the course of an investigation into the

NP’s involvement in crime syndicates. No one was arrested

or charged in connection with the death, and an official inves-

tigation had “no result.”

Following his father’s death, Pagayon saw a group of peo-

ple, some wearing NP uniforms, “patrolling” the streets

around his grandmother’s house; someone later called the

house to tell “family members not to file a complaint for [his]

dad.” When Pagayon’s aunt tried to bring the circumstances

of her brother’s death to light, she was shot (though not

fatally). Shortly thereafter, one of Pagayon’s uncles pulled

him out of school and told him the family needed to relocate.

This process repeated itself often, triggered by warnings from

family friends in the Philippine government that NP retalia-

tion was imminent. It stopped only when Pagayon and his

immediate family came to the United States in 1996; other

family members emigrated to other countries.

At the conclusion of his testimony, Pagayon opined that he

could not return to the Philippines because those responsible

for his father’s murder would find out and “assume that [he

was] back for revenge [or] to expose them from whatever

scheme that they’re doing.”

In an oral decision rendered on May 16, 2007, the IJ sus-

tained the charges of removability based on Pagayon’s prior

admission to both convictions. He then held that Pagayon had

no claim to United States citizenship.

Turning to Pagayon’s claims for relief, the IJ concluded

that the firearm conviction was an “aggravated felony” that

rendered Pagayon ineligible for asylum. The IJ next addressed

whether that conviction was also a “particularly serious

crime” disqualifying Pagayon from withholding of removal.

He concluded that “the nature and circumstances of the

offense” and the length of the sentence showed that Pagayon

PAGAYON v. HOLDER 8623

“can be considered a danger to the safety of persons and prop-

erty in the United States as well as a danger to the community

of which he is a member.” Reaching the merits of the with-

holding claim in the alternative, the IJ accepted Pagayon’s

claim that his father had been murdered by the NP, but con-

cluded that there was

absolutely no evidence to indicate that [Pagayon]

would be in any danger of returning to the Philip-

pines at this date, and therefore he would not meet

the burden of proving it is more likely than not that

he would be so persecuted on the basis of his race,

religion, nationality, membership in a particular

social group, or because of an expressed political

opinion or political opinion imputed to him by the

persecutors.

The IJ rejected Pagayon’s claim for relief under the Conven-

tion Against Torture (CAT) for essentially the same reasons.

Pagayon appealed to the Board. In his notice of appeal, he

claimed that the IJ (1) “failed to take consideration of the

totality of the evidence presented and failed to apply the cor-

rect legal standard to the facts and evidence,” and (2) “denied

the Respondent of a full and fair hearing in violation of due

process of law.” Pagayon did not file a brief. The Board sum-

marily affirmed the IJ’s decision.

Pagayon then filed a petition for review with this Court,

and simultaneously filed a “motion to reconsider and remand”

with the Board. In the latter, he argued (1) that the evidence

presented to the IJ did not establish the nature of his convic-

tions, (2) that the IJ failed to apply the proper factors in his

“particularly serious crime” assessment, (3) that the IJ vio-

lated due process, and (4) that the IJ did not apply the correct

law to his CAT claim. The Board denied the motion on the

ground that those “specific contentions” were raised for the

8624 PAGAYON v. HOLDER

first time on reconsideration. Pagayon thereupon filed a sec-

ond petition for review, which we consolidated with the first.

II

Before turning to the merits, we must address the govern-

ment’s argument that Pagayon failed to exhaust his claims

before the Board. “A court may review a final order of

removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right . . . .” 8 U.S.C.

§ 1252(d)(1). This requirement “generally bars us, for lack of

subject-matter jurisdiction, from reaching the merits of a legal

claim not presented in administrative proceedings below.”

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). If the

petitioner does not file a brief before the Board, then we look

to the notice of appeal to determine which issues he

exhausted. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th

Cir. 2009).

A petitioner must specify which issues he intends to raise

on appeal; a “general challenge to the IJ’s decision” will not

suffice. Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004).

On the other hand, the petitioner is not limited to raising

issues in exactly the same terms as they were presented to the

Board. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873

(9th Cir. 2008). We are particularly careful to give claims

raised by pro se petitioners their most liberal construction. See

id. Under these forgiving standards, we are satisfied that

Pagayon’s notice of appeal gave the Board an adequate

opportunity to pass on the arguments he presents here.

III

“When the BIA summarily affirms the IJ’s decision, we

review the IJ’s decision as the final agency action.” See Zeha-

tye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir. 2006).

Pagayon challenges that decision on three grounds. He argues

(1) that the IJ erred in finding him removable, (2) that the IJ

PAGAYON v. HOLDER 8625

erred in finding him ineligible for withholding of removal,

and (3) that the IJ violated his due-process rights.

A. Removability

Having abandoned his claim of citizenship, Pagayon’s chal-

lenge to the IJ’s removability determination is limited to the

findings regarding the nature of his convictions. Whether a

particular conviction makes an alien removable is “a legal

question subject to de novo review.” Cazarez-Gutierrez v.

Ashcroft, 382 F.3d 905, 909 (9th Cir. 2004).

The IJ found Pagayon removable because (1) his firearm

conviction was for an aggravated felony under 8 U.S.C.

§ 1227(a)(2)(A)(iii), and (2) his drug conviction related to a

controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i). Since

either finding is sufficient to require removal, we opt to

address only the second.1

[1] Section 1127(a)(2)(B)(i) “requires the government to

prove that the substance underlying an alien’s state law con-

viction for possession is one that is covered by Section 102

of the [federal Controlled Substances Act].” Ruiz-Vidal v.

Gonzales, 473 F.3d 1072, 1076 (9th Cir. 2007). Because not

all substances prohibited by California law are “controlled

substances” under federal law, the simple fact of conviction

under section 11377(a) of the California Health and Safety

Code does not prove that the conviction involved a controlled

substance. See id. at 1078. Instead, we must look behind the

conviction by applying a “modified categorical approach.”

See Parrilla v. Gonzales, 414 F.3d 1038, 1043 (9th Cir.

2005).

1

As a result, we need not address whether, as a consequence of the

antique exception to the federal definition of “firearm,” see 18 U.S.C.

§ 921(a)(3)(D), the government must prove that a conviction under a state

law lacking a similar exception involved a non-antique.

8626 PAGAYON v. HOLDER

Our inquiry under the modified categorical approach is

confined to a “narrow, specified set of documents that are part

of the record of conviction.” Tokatly v. Ashcroft, 371 F.3d

613, 620 (9th Cir. 2004). “These documents include the

indictment, the judgment of conviction, the jury instructions,

a signed guilty plea, and the transcript from the plea proceed-

ings.” Malilia v. Holder, 632 F.3d 598, 603 (9th Cir. 2011).

Comparable judicial records of the same information—such

as minute entries and abstracts of judgment—are also accept-

able. See Shepard v. United States, 544 U.S. 13, 26 (2005).

Limiting our consideration to these documents allows us to

determine reliably the nature of a conviction without inviting

inappropriate relitigation of the underlying facts. See Tokatly,

371 F.3d at 622 (“We are required to determine whether

Tokatly has been convicted of a crime of domestic violence—

not whether he in fact committed such a crime.” (internal quo-

tation marks omitted)).

[2] The abstract of judgment here establishes only that

Pagayon was convicted of possessing some drug; it may or

may not have been a controlled substance under federal law.

The underlying information charges him with possession of

a controlled substance (methamphetamine), but, as we have

explained, a charging document does not, standing alone,

demonstrate that the crime charged and the crime of convic-

tion are one and the same. Something else must connect the

two, such as a reference to the charging document in the

record of conviction. See United States v. Vidal, 504 F.3d

1072, 1088 (9th Cir. 2007); United States v. Velasco-Medina,

305 F.3d 839, 852 (9th Cir. 2002). Alternatively, a copy of the

jury instructions (in the case of a conviction after trial) or of

the plea agreement (in the case of a conviction on a guilty

plea) will demonstrate whether the conviction was for the

crime charged.

In principle, there is no reason why an alien could not

admit to the necessary connection between a charging docu-

ment and a conviction. Yet our cases have been equivocal. In

PAGAYON v. HOLDER 8627

Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), we

noted that an IJ had improperly considered an alien’s testi-

mony that the conviction at issue was “for delivering eight

ounces of methamphetamine from a friend to another person

in exchange for $450.” Id. at 1129 n.7. Just three months later,

we upheld a removability finding based on the alien’s admis-

sion that he had been convicted of solicitation to possess a

certain amount of marijuana. See Barragan-Lopez v.

Mukasey, 508 F.3d 899, 905 (9th Cir. 2007).

[3] We reconciled this apparent inconsistency in Cheuk

Fung S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010). There,

we addressed the effect of the alien’s admission to the accu-

racy of an “unidentified ‘conviction document’ ” showing that

he had been convicted of distributing MDMA, a removable

controlled substance offense. See id. at 1031, 1035. Because

the document was not in the record, we “ha[d] no way to

review whether the document established with certainty that

Yong’s conviction was a controlled substance offense.” Id. at

1035. We held that “admissions alone” cannot constitute

clear, convincing and unequivocal evidence of removability,

and distinguished Barragan-Lopez on the ground that the IJ

in that case had been “presented with reliable documents of

conviction in addition to the alien’s judicial admissions.” Id.

at 1036 (citing Barragan-Lopez, 508 F.3d at 905).

Here, the IJ did not rely solely on Pagayon’s admission.

The abstract of judgment established the crime of conviction,

while the information established that the drug charge was for

possession of methamphetamine. Pagayon’s admission was

needed only to confirm that the conviction was for the

charged crime.

[4] We therefore make explicit what Cheuk Fung S-Yong

suggests: An IJ may consider an alien’s admissions regarding

removability if they are corroborated by the “narrow, speci-

fied set of documents that are part of the record of convic-

tion,” Tokatly, 371 F.3d at 620. Absent some claim of

8628 PAGAYON v. HOLDER

mistake, duress or the like—which Pagayon does not raise—

an admission is just as reliable as an explicit reference to the

charging document in an abstract of judgment. And since an

admission like Pagayon’s does no more than establish that the

conviction at issue was for the crime charged, it does not

invite the IJ to improperly relitigate the criminal case by

inquiring into the underlying facts of the crime. Cf. id. at 623

(IJ not allowed to consider testimony of victim to establish

“domestic” nature of crime of violence); Huerta-Guevara v.

Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003) (“[E]ven if the

facts as represented in Huerta’s brief are taken as a true

account of what she did, it is not clear that these are the ele-

ments to which she pled guilty.”).

[5] Coupled with Pagayon’s admission, the record of con-

viction clearly, convincingly and unequivocally shows that

Pagayon was convicted of a controlled substance offense.2

The government met its burden of establishing removability.

B. Relief from Removal

Because we have not addressed whether Pagayon’s firearm

conviction involved a removable “aggravated felony,” we

cannot, as the IJ did, conclude that Pagayon is automatically

ineligible for asylum, see 8 U.S.C. § 1158(b)(2), and ineligi-

ble for withholding of removal because the conviction was for

a “particularly serious crime,” id. § 1231(b)(3)(B)(ii).3

Instead, we turn to the IJ’s alternative conclusion that

Pagayon failed to meet his burden of proving entitlement to

withholding.

2

By contrast, the record of the firearm conviction does not, even with

Pagayon’s admission, show that he was convicted of possessing a non-

antique firearm. As noted, we leave for another day whether such proof

is required to establish removability based on a conviction under Cal.

Penal Code § 12021(a)(1).

3

Pagayon has abandoned his claim for relief under CAT.

PAGAYON v. HOLDER 8629

[6] “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 [protected]

grounds.’ ” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.

2001) (quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)).

Factual findings concerning entitlement to withholding are

reviewed for substantial evidence, and must be upheld if “sup-

ported by reasonable, substantial, and probative evidence on

the record considered as a whole.” Zhou v. Gonzales, 437

F.3d 860, 864-65 (9th Cir. 2006) (citations and internal quota-

tion marks omitted). They may be reversed only if the evi-

dence is “such that a reasonable fact-finder would have been

compelled” to reach a contrary result. Id. at 865 (citations and

internal quotation marks omitted).

[7] The record does not compel the conclusion that

Pagayon will face persecution in the Philippines for two rea-

sons. First, notwithstanding Pagayon’s relocation within the

Philippines 15 years ago, he has not demonstrated that he

would face reprisals from the NP if he returned now. His sis-

ter, for instance, continues to live there unmolested.

[8] Second, Pagayon has not conclusively established that

the NP would target him on a protected ground. As the IJ rec-

ognized, withholding is available only to those who face per-

secution on account of race, religion, nationality, membership

in a particular social group, or an actual or imputed political

opinion. See Sharma v. Holder, 633 F.3d 865, 869-70 (9th

Cir. 2011). Although Pagayon casts his claim as one based on

imputed political opinion, his narrative to the IJ described the

NP’s motive as an attempt to discourage his family from

exposing or avenging his father’s murder. A personal dispute

is not, standing alone, tantamount to persecution based on an

imputed political opinion. See Molina-Morales v. INS, 237

F.3d 1048, 1051-52 (9th Cir. 2001) (personal disputes not

grounds for asylum unless connected to a protected ground).

That Pagayon is not entitled to withholding does not neces-

sarily mean that he cannot satisfy the less stringent “well-

8630 PAGAYON v. HOLDER

founded fear” standard for asylum. See INS v. Cardoza-

Fonseca, 480 U.S. 421, 449 (1987) (“[T]o show a ‘well-

founded fear of persecution,’ an alien need not prove that it

is more likely than not that he or she will be persecuted in his

or her home country.”). The IJ did not address Pagayon’s asy-

lum claim on the merits, relying instead on the firearm con-

viction to find him ineligible. We need not remand, however,

because asylum, like withholding, protects only those who

risk persecution based on a protected ground. See Sharma,

633 F.3d at 869. Thus, even if Payagon could show a well-

founded fear of reprisals by the NP, he could not, as explained

above, establish that the reprisals would be based on an

imputed political opinion.

C. Due Process

Pagayon argues that the IJ violated his due-process rights

by not allowing him time to submit a letter recapitulating his

oral testimony, and by refusing to take telephonic testimony

from family members.4 We review this claim de novo. Ibarra-

Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006).

Assuming that one or both of the IJ’s decisions were error,

they do not amount to due-process violations unless they

deprived Pagayon of “a full and fair hearing” of his claims.

Zolotukhin v. Gonzales, 417 F.3d 1073, 1075 (9th Cir. 2005).

In other words, Pagayon must show prejudice, “which means

that the outcome of the proceeding may have been affected by

the alleged violation.” Reyes-Melendez v. INS, 342 F.3d 1001,

1007 (9th Cir. 2003).

[9] Prejudice may be inferred “even absent any allegations

as to what the petitioner or his witnesses might have said.”

Zolotukhin, 417 F.3d at 1077 (citing Colmenar v. INS, 210

4

He also argues that the IJ was biased against him. Because this claim

is offered strictly as a basis for reassignment to a different IJ in case of

remand, we do not address it.

PAGAYON v. HOLDER 8631

F.3d 967, 972 (9th Cir. 2000)). In this case, however, we can

find no connection between the additional evidence and the

outcome of the proceeding. Since the IJ accepted Pagayon’s

version of the facts, corroborating evidence was not neces-

sary. And since that version of the facts portrays a personal

vendetta against someone intending to expose the NP’s mis-

deeds, Pagayon cannot plausibly claim that the additional evi-

dence would have contradicted his own testimony by

suggesting a different motive for his father’s murder.

IV

The government satisfied its burden of proving removabil-

ity. Pagayon, by contrast, failed to carry his burden of proving

that he is entitled to relief from removal, or that the IJ violated

his due-process rights. Accordingly, his petitions for review

are

DENIED.