Pagayon v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRYAN VINCENT I. PAGAYON, a.k.a.  Nos. 07-74047
Deny Moniker, a.k.a. Bryan and
Vincent Idhaw, 07-75129
Petitioner, Agency No.
v. A45-622-497
ERIC H. HOLDER Jr., Attorney ORDER
General,  GRANTING
Respondent. REHEARING,
WITHDRAWING
OPINION AND
DENYING
REHEARING EN
BANC AND
 OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 13, 2011—San Francisco, California

Filed December 8, 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.

20833
 PAGAYON v. HOLDER 20835

COUNSEL

Victor Jih and Victoria Schwartz (argued), O’Melveny &
Myers LLP, Los Angeles, California; Jessica Barclay-Strobel
20836 PAGAYON v. HOLDER
(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.

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1226 (9th Cir. 2011), is withdrawn.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 pre-
cedent 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 rec-
ommended. 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
 PAGAYON v. HOLDER 20837
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 posses-
sion 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, Cal-
ifornia, 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 sub-
stances, methamphetamine, [a] felony, in viola-
tion 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-l, possession, fire-
arm, felon or addict. . . . Two-year sentence.
. . .Count B-2, possession controlled substance.
20838 PAGAYON v. HOLDER
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.” Without objection, the IJ
received the abstract of judgment and informations as evi-
dence.

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 citizen-
ship through his maternal grandmother. A successor IJ
allowed Pagayon to belatedly deny “Allegation 1”—the alle-
gation 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 convic-
tions. 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 Payagon removable. Although the IJ
promised to address Pagayon’s claim of citizenship, Pagayon
 PAGAYON v. HOLDER 20839
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 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
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 con-
cluded that the firearm conviction was an “aggravated felony”
that rendered Pagayon ineligible for asylum. The IJ next
20840 PAGAYON v. HOLDER
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 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-
 PAGAYON v. HOLDER 20841
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
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-
20842 PAGAYON v. HOLDER
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
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 sole
challenge to the IJ’s removability determination is that the
government failed to prove that his convictions rendered him
removable. That is “a legal question subject to de novo
review.” Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909
(9th Cir. 2004).

[1] Our analysis is governed by Perez-Mejia v. Holder,
___ F.3d ___, slip op. 20391 (9th Cir. 2011), which was
decided shortly after oral argument in this case. Harmonizing
our prior cases concerning consideration of an alien’s admis-
sions and concessions, Perez-Mejia drew a distinction
between the “pleading” and “evidentiary” stages of a removal
proceeding. See id. at 20404 (citing 8 C.F.R. § 1240.10(c),
(d)). At the pleading stage, the IJ asks the alien “whether he
or she admits or denies the factual allegations and his or her
removability under the charges contained therein.” 8 C.F.R.
§ 1240.10(c). The IJ may accept admissions and concessions
at that stage; if they are sufficient to establish removability,
“no further evidence concerning the issues of fact admitted or
law conceded is necessary.” Perez-Mejia, slip op. at 20411.
Indeed, an alien’s concession of removability or admission of
facts establishing removability, if accepted by the IJ, com-
pletely “relieve[s] the government of the burden of producing
evidence.” Id. at 20315.

[2] If, on the other hand, “an alien’s admissions or conces-
sion leave material issues in dispute, or the IJ is not satisfied
with an admission or concession, the proceeding moves to the
§ 1240.10(d) evidentiary stage.” Id. at 20411. If, at that stage,
 PAGAYON v. HOLDER 20843
the “modified categorical approach” is applicable, “the IJ may
rely on facts admitted at the pleading stage, but may not con-
sider any further statements made by the alien unless they are
contained in the specific set of documents that are part of the
record of conviction.” Id.1

The IJ found Pagayon removable based on the govern-
ment’s allegations (1) that his firearm conviction was for an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), and (2)
that his drug conviction related to a controlled substance
under 8 U.S.C. § 1227(a)(2)(B)(i). Since either allegation, if
established, is sufficient to require removal, we opt to address
only the second.2

[3] 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 (codified as 18
U.S.C. § 802)].” Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076
(9th Cir. 2007). Accordingly, the government alleged that
Pagayon was convicted of possession of methamphetamine,
which is so covered. See 21 U.S.C. §§ 802(6), 812 sched.
II(c)). Pagayon’s admission of the allegation that his drug
offense involved methamphetamine was a “pleading stage”
admission. By contrast, his admission that he was convicted
of the crimes charged in the informations offered by the gov-
ernment was an “evidentiary stage” admission. Under Perez-
Mejia, the IJ could properly consider the former, but not the
latter, in determining whether Pagayon was removable.
1
The modified categorical approach applies when the simple fact of
conviction of a state-law crime does not automatically establish remov-
ability under federal law. See Parrilla v. Gonzales, 414 F.3d 1038, 1043
(9th Cir. 2005).
2
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 allege and prove that a conviction
under a state law lacking a similar exception involved a non-antique.
20844 PAGAYON v. HOLDER
As Perez-Mejia recognized, removal proceedings are “not
always neatly divided into pleading and evidentiary stages.”
Slip op. at 20413 n.10. That is certainly the case here. After
asking Pagayon to admit or deny the government’s allega-
tions, the initial IJ detoured into the evidentiary phase of the
proceedings by asking Pagayon to confirm that his convic-
tions were for the crimes charged in the informations he
entered into evidence. Further muddying the waters, the suc-
cessor IJ returned to the pleadings phase to allow Pagayon to
withdraw his concession of removability and pursue his claim
of citizenship.

[4] Nevertheless, it is clear that Pagayon made a “pleading
stage” admission that he had been convicted of a drug offense
involving methamphetamine; that admission alone established
his removability. The subsequent colloquy regarding the
informations and the withdrawal of the concession of remov-
ability do not suggest that either IJ believed that the issue
required further evidence. Cf. Perez-Mejia, slip op. at
20412-13. To the contrary, the successor IJ’s list of the issues
requiring an evidentiary hearing included only citizenship and
relief from removal. That he did not also list the nature of
Pagayon’s convictions demonstrates that he was satisfied that
Pagayon’s admission had relieved the government of its bur-
den of proof on that issue.

Finally, we are aware that Pagayon was proceeding pro se,
while the alien in Perez-Mejia was represented by counsel.
See id. at 20397. However, the regulation that forms the basis
for Perez-Mejia’s pleading stage/evidentiary stage dichotomy
allows an IJ to accept admissions from an unrepresented alien
except in circumstances not pertinent here. See 8 C.F.R.
§ 1240.10(c) (“The immigration judge shall not accept an
admission of removability from an unrepresented respondent
who is incompetent or under the age of 18 and is not accom-
panied by an attorney or legal representative, a near relative,
legal guardian, or friend; nor from an officer of an institution
in which a respondent is an inmate or patient.”).
 PAGAYON v. HOLDER 20845
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.

[5] “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).

[6] 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.

[7] Second, Pagayon has not conclusively established that
the NP would target him on a protected ground. As the IJ rec-
3
Pagayon has abandoned his claim for relief under CAT.
20846 PAGAYON v. HOLDER
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).4

That Pagayon is not entitled to withholding does not neces-
sarily mean that he cannot satisfy the less stringent “well-
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-
4
Pagayon argues that our second reason runs afoul of INS v. Orlando
Ventura, 537 U.S. 12 (2002), in which the Supreme Court held that a court
of appeals should not, except in rare circumstances, determine de novo
that an alien is entitled to relief from removal. See id. at 16 (“Generally
speaking, a court of appeals should remand a case to an agency for deci-
sion of a matter that statutes place primarily in agency hands.”). Even
assuming that Ventura applies with equal force to a denial of a petition for
review, it does not require remand here. In addition to concluding that
Pagayon faced no danger in the Philippines, the IJ stated that he therefore
“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, mem-
bership in a particular social group, or because of an expressed political
opinion or political opinion imputed to him by the persecutors.”
 PAGAYON v. HOLDER 20847
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.5 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).

[8] 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
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.
5
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.
20848 PAGAYON v. HOLDER
IV

The IJ was entitled to rely on Pagayon’s pleading-stage
admission that he had been convicted of a removable drug
offense. Pagayon 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.