Pagayon v. Holder

• Citation: 11 Cal. Daily Op. Serv. 14770,2011 Daily Journal D.A.R. 17658,675 F.3d 1182
• Decision Date: 08 December 2011
• Docket Number: 07–75129.,Nos. 07–74047,s. 07–74047
• Parties: Bryan Vincent I. PAGAYON, a.k.a. Deny Moniker, a.k.a. Bryan and Vincent Idhaw, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

11 Cal. Daily Op. Serv. 14,770

2011 Daily Journal D.A.R. 17,658

675 F.3d 1182

Bryan Vincent I. PAGAYON, a.k.a. Deny Moniker, a.k.a. Bryan and Vincent Idhaw, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

Nos. 07–74047

07–75129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2011.Filed Dec. 8, 2011.

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, CA, for the petitioner.

Michael C. Heyse, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A45–622–497.Before: ALEX KOZINSKI, Chief Judge, N. RANDY SMITH, Circuit Judge, and FREDERIC BLOCK, District Judge.^*

ORDER

The petition for panel rehearing is granted. The Opinion filed June 24, 2011, slip op. 8617, and appearing at 642 F.3d 1226 (9th Cir.2011), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new Opinion denying the petitions for review is being filed concurrently with this Order.

Chief Judge Kozinski and Judge Smith have voted to deny the petition for rehearing en banc, and Judge Block has so recommended. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35. Accordingly, the petition for rehearing en banc is denied.

No further petitions for rehearing will be accepted.

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.

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 a notice to appear alleging 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, the IJ asked Pagayon to admit or deny the allegations of the notice to appear. In response, Pagayon admitted as “true” that he was

• “not a citizen or national of the United States but ... a native and citizen of the Philippines”;

• “admitted to the United States, Los Angeles, California, August 23, 1996 as an immigrant”;

• “convicted in Superior Court, California, Los Angeles County, possession of firearm by felon or addict in violation of 12021(a)(1), California Penal Code”; and

• “convicted in the Superior Court, California, Los Angeles County, possession of a controlled substances, methamphetamine, [a] felony, in violation of California Health and Safety Code 11377(a).”

The government then produced an abstract of judgment and the two informations that ostensibly underlay the convictions. The IJ summarized the documents—copies of which were given to Pagayon—as follows:

They've given to you and to me a copy of an abstract of judgment list[ing] as Count A–1, possession, firearm, felon or addict.... Two-year sentence. ... Count B–2, possession controlled substance.

Attached to this is a copy of an information, possession 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.” Without objection, the IJ received the abstract of judgment and informations as evidence.

Pagayon initially admitted that his convictions rendered him removable and applied for relief from removal. Thus, the IJ found the charges of removability established by Pagayon's “admissions and concession, together with the documentary evidence in support of it.” The hearing was adjourned to allow Pagayon time to complete his application for relief from removal.

At his next appearance, Pagayon raised a claim of citizenship through his maternal grandmother. A successor IJ allowed Pagayon to belatedly deny “Allegation 1”—the allegation that he was not a United States citizen or national—and “vacat[ed] all sustaining of charges” of removability by his predecessor. He did not, however, change or vacate Pagayon's responses to the allegations regarding his convictions. Thus, at the conclusion of the proceeding, the new IJ identified the issues for hearing as “one citizenship; two ... withholding of removal and deferral of removal.”

The IJ conducted an evidentiary hearing on May 16, 2007. At the outset, he “re-sustain[ed]” the government's allegations and, accordingly, found Pagayon removable. Although the IJ promised to address Pagayon's claim of citizenship, Pagayon did not pursue it. Instead, he testified only as to his claim for relief from removal. Because the IJ did not make an adverse credibility determination, we take that testimony as true. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004).

Pagayon's father worked as an investigator for the Philippines' 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 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 investigation had “no result.”

Following his father's death, Pagayon saw a group of people, 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 retaliation 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 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 “can be considered a danger to the safety of persons and property in the United States as well as a danger to the community of which he is a member.” Reaching the merits of the withholding claim in the alternative, the IJ accepted Pagayon's claim that his father had been murdered by the NP, but concluded that there was absolutely no evidence to indicate that [Pagayon] would be in any danger of returning to the Philippines 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 Convention 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 correct 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 summarily 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 convictions, (2) that the IJ failed to apply the proper factors in his “particularly serious crime” assessment, (3) that the IJ violated 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 first time on reconsideration. Pagayon thereupon filed a second petition for review, which we consolidated with the first.

II

Before turning to the merits, we must address the government'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...