Roderick Lim Go v. Eric H. Holder Jr.

• Decision Date: 05 May 2011
• Docket Number: No. 06–71575.,06–71575.
• Citation: 11 Cal. Daily Op. Serv. 5334,640 F.3d 1047,2011 Daily Journal D.A.R. 6423
• Parties: Roderick Lim GO, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

640 F.3d 1047

11 Cal. Daily Op. Serv. 5334

2011 Daily Journal D.A.R. 6423

Roderick Lim GO, Petitioner,

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

No. 06–71575.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 2011.Filed May 5, 2011.

P. Joseph Sandoval, Gallagher Sandoval, PC, Los Angeles, CA; and Robert G. Berke, Berke Law Officers, Canoga Park, CA, for the petitioner.William C. Erb, Jr., and Don George Scroggin, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A095–617–600.Before: J. CLIFFORD WALLACE and SUSAN P. GRABER, Circuit Judges, and RICHARD MILLS,^* Senior District Judge.

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 pursuant 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 asylum, 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 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 witnesses, 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 kiting” scheme to finance the purchase of illegal narcotics. Approximately six months after Go joined the scheme, however, he and King had some sort of falling out. The evidence supported two versions of what happened: either Go kidnapped 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 ineligible for asylum and withholding of removal. With respect to Go's claim that his kidnapping charges were pretext for government 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 government 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 removal. Go's CAT claim, however, was remanded for further 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 detention 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 evidence that had been introduced on remand, the Board concluded that Go was unlikely to be tortured in a Philippine detention facility. In a divided decision, the Board emphasized that one of Go's co-defendant's in the kidnapping, who had been detained pending trial, had not been tortured or otherwise 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 significant media attention in Cebu. The “notoriety” of the kidnapping 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 concluded 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.

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 withholding 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 government 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 decision with respect to Go's eligibility for asylum and withholding 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, 103 S.Ct. 2764, 77 L.Ed.2d 317 (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 withholding claim, and his claim pursuant to the CAT. We therefore have jurisdiction to consider each of these claims. See id.

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”). Accordingly, 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 jurisdiction 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 serious 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.” Se...