FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KWANG HYEN PARK, 

Petitioner,

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 21-70623 

Agency No.

A089-695-765 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 6, 2022

Pasadena, California

Filed June 29, 2023

Before: Ryan D. Nelson, Bridget S. Bade, and Danielle J. 

Forrest, Circuit Judges.

Opinion by Judge Forrest
2 PARK V. GARLAND

SUMMARY*

Immigration 

Denying Kwang Park’s petition for review of a decision 

of the Board of Immigration Appeals, the panel held that the 

BIA applied the proper legal standard in denying 

withholding of removal and that the BIA properly denied 

relief under the Convention Against Torture (CAT). 

Park pleaded guilty to 13 drug-related charges, including 

possession of cocaine for sale under California Health and 

Safety Code § 11351. In removal proceedings, the agency 

found Park removable for having committed a drugtrafficking aggravated felony and for having committed a 

controlled-substance offense. Applying the presumption 

established in Matter of Y-L-, 23 I. & N. Dec. 270 (A.G. 

2002)—that drug-trafficking offenses are particularly 

serious crimes—the agency concluded that Park’s § 11351 

conviction was a particularly serious crime that barred 

withholding. The agency also denied CAT relief. 

Addressing Park’s contention that the agency applied the 

wrong standard to its particularly-serious-crime 

determination, the panel explained that, in Matter of Y-L-, 

the Attorney General instructed that aggravated felonies 

involving illicit drug trafficking are presumptively 

particularly serious crimes and that this presumption may be 

overcome only in the most extenuating circumstances that 

are both extraordinary and compelling. The panel noted that 

the BIA’s particularly-serious-crime analysis here was 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
PARK V. GARLAND 3

cursory, but concluded that the BIA applied Matter of Y-L-

’s presumption and that the BIA’s decision was supported by 

adequate reasoning. Observing that neither the IJ nor the 

BIA recited the Matter of Y-L- criteria, the panel explained 

that they are not required to do so. The panel also noted that 

the BIA considered facts not directly referenced in Matter of 

Y-L-’s minimum factors, but explained that those criteria 

were not exhaustive. 

The panel further concluded that, even if it had found 

that the BIA erred by considering facts not expressly 

incorporated into Matter of Y-L-’s minimum standard, it 

would still deny Park’s petition because it was a legal 

certainty that Park could not satisfy Matter of Y-L-’s 

minimum criteria. Thus, the panel concluded that this was 

one of those narrow circumstances where remand was 

unwarranted because the law dictates the outcome that the 

agency must reach. 

As to CAT relief, Park alleged that the BIA committed 

multiple errors in denying such relief. First, Park argued that 

the BIA exceeded its regulatory authority by impermissibly 

engaging in predictive fact-finding. This argument was 

premised on the IJ’s misstatement that Park had not shown 

that he would be tortured on account of a protected 

ground. The panel rejected that contention, explaining that 

the BIA did precisely what it is required to do: it concluded 

that the IJ’s predictive factual findings were not clearly 

erroneous, and then considered whether those facts 

constituted torture and concluded that Park had not 

established it is more likely than not he will be subject to 

torture either for refusing to do or agreeing to perform 

military service, or due to his convictions in the United 

States. 
4 PARK V. GARLAND

The panel also concluded that the BIA corrected the IJ’s 

misstatement of the legal standard for CAT relief, explaining 

that the BIA found that Park nonetheless failed to establish 

that it is more likely than not he will be tortured, regardless 

of the basis, upon his removal to South Korea. Thus, the 

panel concluded that the IJ’s legal error did not undermine 

its factual findings and was cured when the BIA applied the 

correct legal standard to the facts found by the IJ.

The panel also rejected Park’s contention that the BIA 

failed to provide a reasoned explanation for its decision, 

explaining that this argument was based on the mistaken 

view that the panel could review only the BIA’s 

decision. The panel concluded that, when read alongside the 

IJ’s multi-page CAT analysis, the BIA’s decision adequately 

conveyed the reasoning behind the denial of CAT relief.

Turning to the merits of Park’s CAT claim, the panel 

concluded that substantial evidence supported the agency’s 

determination that Park is unlikely to be tortured because of 

his California drug convictions. The panel explained that, 

generally, prosecution and punishment for criminal activity 

do not constitute torture. Further, the panel concluded that 

South Korea’s extraterritorial-jurisdiction law, allowing it to 

re-prosecute its citizens for crimes committed and punished 

outside of South Korea, is not inherently torturous. Nor was 

there any evidence that South Korea would apply its law 

more harshly to Park than to someone else similarly situated 

to him. Additionally, the panel concluded that the agency 

properly found that the possibility that South Korea may 

prosecute Park and impose harsh punishment for his 

California drug crimes is entirely speculative.

The panel also concluded that the agency’s 

determination that Park will not be tortured under South 
PARK V. GARLAND 5 

Korea’s military-conscription policy was supported by 

substantial evidence. The panel noted that news articles 

Park submitted demonstrate that some members of the South 

Korean military have had tragic experiences, including 

mistreatment and suicide. However, the panel explained that 

military conscription and punishment for evasion of military 

duty seldom constitute torture. The panel further explained 

that the record did not establish that South Korea’s decadesold conscription policy, which applies equally to all male 

citizens within the designated age range, is imposed with the 

intent of inflicting pain and suffering. The panel observed 

that the same was true of South Korea’s alternative to 

military conscription—three years of labor—which is 

equally available to anyone who wishes to avoid military 

service. 

The panel also concluded that Park did not meet his 

burden to show that he would face a particularized risk of 

mistreatment from military conscription as a cultural 

outsider, and rejected Park’s claim that the agency failed to 

consider the aggregate impact of Park’s claimed risks of 

torture.

COUNSEL

Jean E. Reisz (argued) and Niels W. Frenzen, University of 

Southern California Gould School of Law, Los Angeles, 

California, for Petitioner.

Jeffrey M. Hartman (argued), Trial Attorney; M. Jocelyn 

Lopez Wright, Senior Litigation Counsel, Office of 

Immigration Litigation; Brian Boynton, Principal Deputy 

Assistant Attorney General, Civil Division; United States 

Department of Justice; Washington, D.C.; for Respondent. 
6 PARK V. GARLAND

OPINION

FORREST, Circuit Judge:

Petitioner Kwang Park, a lawful permanent resident and 

South Korean native and citizen, was arrested twice in three 

days for numerous drug-related crimes. He possessed a 

variety of illegal substances and other paraphernalia 

evidencing drug trafficking at both arrests, and he pleaded

guilty to 13 charges, including possession of cocaine for 

sale. The Government sought to remove Park from the 

United States based on his convictions, and he applied for 

withholding of removal and protection under the Convention 

Against Torture (CAT), among other relief, claiming that he 

would be persecuted and tortured by the South Korean 

government if removed. Specifically, he claimed that South 

Korea would (1) re-prosecute and severely punish him for 

his drug crimes committed in this country and (2) force him 

to serve in the South Korean military consistent with its

military-conscription policy. The Board of Immigration 

Appeals (BIA) denied Park relief and ordered him removed. 

In this appeal, Park argues that the BIA erred by improperly 

applying the presumption established in Matter of Y-L-, 23 

I. & N. Dec. 270 (A.G. 2002)—that drug-trafficking 

offenses are particularly serious crimes, a finding that 

renders a petitioner ineligible for withholding of removal. 

He also argues that the BIA committed procedural and 

substantive errors in denying him relief under the CAT. 

We deny Park’s petition for review. The BIA properly 

applied Matter of Y-L- and did not abuse its discretion in 

concluding that the circumstances underlying Park’s 

conviction establish that his is not “the very rare case” that 

justifies departing from the presumption that drug trafficking 
PARK V. GARLAND 7

is a particularly serious crime. See 23 I. & N. Dec. at 276. 

The BIA also properly denied CAT relief where it applied 

the proper standard, sufficiently explained its decision, and 

substantial evidence supports its conclusion that the harm 

that Park fears from the South Korean government does not 

constitute torture and instead arises from application of that 

country’s generally applicable laws. 

I. BACKGROUND

A. First Arrest

On April 3, 2018, Park was stopped by California 

Highway Patrol for speeding and improperly changing lanes. 

Officers discovered that Park was driving with a suspended 

license and without insurance. They also observed signs of 

intoxication and required Park to perform a “series of field 

sobriety tests,” which he failed. 

During a search of Park’s car, officers found a loaded 

handgun and a canister of cocaine in a female passenger’s 

purse. They also found over $2,600, including “a large 

amount of hundred dollar bills,” in Park’s wallet, two airsoft 

guns that resembled firearms, three small bags of cocaine,

Xanax, numerous containers of cannabis, a scale covered 

“with white powdery residue,” seven .40 caliber bullets, and 

a lock pick set. Park admitted that the handgun was his and

that “the white powdery substance was cocaine.” 

The officers arrested Park, and he was charged with 

numerous drug or firearm-related offenses, including 

unlawful possession of a controlled substance with a firearm 

under California Health and Safety Code (CHSC) 

§ 11370.1(a). 
8 PARK V. GARLAND

B. Second Arrest

Three days later, Park posted bail and retrieved his car 

from police impoundment in the morning. That night, Park 

was stopped again for speeding and for driving without a 

front license plate and with an improperly obstructed rear 

license plate. During the stop, Park admitted that there was

a bag of cocaine under his seat. Officers again searched 

Park’s car and found the bag under Park’s seat, which

contained 0.8 grams of cocaine, as well as four more small 

bags in the center console that each contained between 1.2 

and 1.4 grams of cocaine. An officer also noticed that Park’s 

car radio appeared to have been tampered with, and after 

removing the cover plate, the officer discovered a bag with 

16.8 grams of cocaine, three bags containing a total of 137

Xanax pills, a bag with 95 Ecstasy pills, a bag with a single 

Ecstasy pill, and a scale covered in cocaine residue. During 

a later inventory of the car, officers also found a ledger 

showing “quantities of unknown substances” and “total 

value of these items,” a bag containing a small amount of 

marijuana, a methamphetamine pipe, two beverage 

containers modified “to conceal illegal narcotics” covered in 

cocaine residue, numerous containers that were “consistent 

with the use to conceal/transport illegal narcotics,” a box of 

latex gloves, and a bulletproof vest. 

Park was again arrested and ultimately charged with, 

among other things, possession and transportation of cocaine 

for sale under CHSC §§ 11351, 11352(a). Park was 

questioned at the jail, and he admitted that the drugs and 

other contraband were his but asserted that they must have 

been in the car since his first arrest because he “would not 

be driving around with that much weight” and he “stopped 

carrying product” after his previous arrest. He also stated 
PARK V. GARLAND 9

that no one else had driven his car since he retrieved it from 

the impound lot, but some friends had ridden in it. 

Park pleaded guilty to 13 charges arising from his two 

arrests. At sentencing, he received concurrent 674-day jail 

terms and five years’ probation. 

C. Immigration Proceedings

After his convictions, Park was charged as removable for 

committing an aggravated felony (illicit trafficking of a 

controlled substance) and violating California controlledsubstance laws. 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Park 

applied for cancellation of removal, asylum, withholding of 

removal, and CAT protection. In support of his applications, 

Park testified that neither he nor his family members were

ever harmed in South Korea, but he fears returning to that 

country because his family lives in the United States and he 

no longer has any connections in South Korea. He also 

testified that he fears he will be harmed in South Korea 

because (1) he will be re-prosecuted for the drug crimes that 

he committed in the United States and will receive extremely 

harsh punishment, and (2) he will have to comply with South 

Korea’s mandatory military service and will be mistreated 

by the military. 

Regarding his criminal convictions, Park testified that he 

“heard from many sources” that he could be prosecuted and 

punished in South Korea for his crimes committed in the 

United States. He also submitted provisions of South Korean 

law relating to drug crimes and that country’s extraterritorial 

jurisdiction, the latter of which allows prosecution and 

punishment for crimes that a South Korean citizen commits 

and is punished for in another country. Under South Korea’s 

Narcotics Control Act, the government appears to have 

broad discretion to sentence those who “trade[]” narcotics
10 PARK V. GARLAND

for profit or possess narcotics for such purpose, with possible 

punishment including life imprisonment and forced labor or 

the death penalty. Park also testified that he was told he 

would be unable to find a job in South Korea because of his 

criminal record. When asked how South Korea would learn

about his California convictions, Park was “not sure.” 

Regarding South Korea’s military conscription, Park 

testified that he has heard some people in the military “are 

not treated fairly and [are] abused,” but when asked 

specifically what he thought would happen, he was “not 

sure.” Males between 18 and 40 are required to serve in the 

South Korean military for two years.1 Men with dual 

citizenship who were raised in the United States and identify 

as American have been conscripted into the military upon 

their return to South Korea. Park submitted news articles 

discussing the conditions of military service in South Korea, 

including that “cultural outsiders” who are conscripted into 

the military are isolated and abused and that the South 

Korean military is “notorious for harsh conditions, including 

hazing and rising suicide rates.” Reported statistics from the

South Korean Ministry of National Defense show an average 

of 82.2 suicide deaths each year between 2009 and 2013. In 

2019, South Korea passed an alternative to military 

conscription—three years of forced labor—but Amnesty 

International has described it as “alternative punishment.” 

1 The record evidence (news articles) regarding the age requirement may 

be incorrect and the actual requirement is 18–35. See World Factbook, 

South Korea: Military and Security, Cent. Intelligence Agency, 

https://www.cia.gov/the-world-factbook/countries/koreasouth/#military-and-security [https://perma.cc/NZP3-M5A7] (last 

visited May 19, 2023). But this discrepancy is immaterial as Park is 

currently 29 years old.
PARK V. GARLAND 11

The Immigration Judge (IJ) concluded that Park was 

statutorily ineligible for cancellation of removal and asylum 

due to his aggravated-felony and drug-trafficking 

convictions. Based on “the incident reports relating to 

[Park’s] drug trafficking convictions,” the IJ also found that 

Park was convicted of particularly serious crimes, making 

him ineligible for withholding of removal. The IJ detailed

the circumstances of Park’s two arrests, including the type 

and quantity of drugs that he possessed and that he had, 

among “other incriminating evidence,” a firearm, large 

amounts of cash, a scale, body armor, and containers used to 

conceal drugs. The IJ found that “these factors contribute to 

persuade the Court that [Park] has been convicted of a 

particularly serious crime” and that Park did not show 

“pursuant to Matter of Y-L- that the specific facts in his case 

take the matter out of the presumption that his drug 

trafficking offenses are indeed particularly serious crimes.” 

The IJ also denied Park’s application for CAT relief

because Park had not suffered past torture and he failed to

demonstrate that it was more likely than not that he would 

be tortured if removed to South Korea. The IJ explained: “As 

a general principle . . . prosecution for criminal activity is 

not something that rises to the level of persecution, let alone 

that rises to the level of torture . . . .” Although 

“disproportionately severe punishment or the existence of 

pretextual prosecution” could, in theory, rise to the level of 

torture, the IJ found that “the South Korean laws at issue 

would be applied equally to all South Korean citizens in a 

similar position and so [Park] would not be 

disproportionately punished compared to others who were 

similarly situated.” “Moreover, [Park] was not able to 

establish anything other than speculation that he would 

indeed be prosecuted again in South Korea for the offenses 
12 PARK V. GARLAND

that he was already convicted of here in the United States.” 

And despite the evidence that Park submitted, the IJ found 

that nothing indicates that the government “either habitually 

does, or intends to, prosecute someone who has already been 

convicted and punished for a crime in another country.” The 

IJ also concluded that Park was not entitled to CAT 

protection because he had not shown “that any prosecution 

that he might suffer would be based upon a protected ground. 

Being a criminal or having a criminal record is not a 

particular social group that the Circuit has recognized.” The 

IJ found that South Korea’s military-conscription law, 

including the forced-labor alternative to military service, is 

neutrally applied. Thus, the IJ concluded that “the conduct 

[Park] fears from the South Korean government appears to 

be entirely proper administration of existing South Korean 

law.” 

The BIA dismissed Park’s appeal. It concluded that Park 

was ineligible for withholding of removal because his 

conviction in his second case for possession of cocaine for 

sale under CHSC § 11351 was a particularly serious crime. 

The BIA did not consider whether any of Park’s other 

convictions were particularly serious crimes. The BIA also 

concluded that the IJ “appropriately applied the presumption 

that drug trafficking offenses are particularly serious 

crimes,” and, citing Matter of Y-L-, that Park failed to 

“overcome this presumption given that he had multiple 

arrests for possession of controlled substances, multiple 

types of controlled substances in his possession at both 

arrests, and a loaded firearm in his possession.” 

Regarding CAT relief, the BIA concluded that the IJ’s 

predictive factual findings were not clearly erroneous. 

Recognizing that the IJ did err in stating that Park needed to 

establish “any punishment or prosecution he might suffer 
PARK V. GARLAND 13

would be based on a protected ground,” the BIA clarified

that “[a]n applicant for protection under the CAT need not 

show feared torture on account of a protected ground.” 

Nonetheless, the BIA concluded that Park had not 

established that he was likely to suffer torture “for refusing 

to do or agreeing to perform military service, or due to his 

convictions in the United States.” 

In this appeal, Park challenges the BIA’s denial of 

withholding of removal and CAT relief. He argues that the 

BIA erred in determining that his drug-trafficking conviction 

was a particularly serious crime by confusing the facts of his 

two arrests and misapplying the presumption established in 

Matter of Y-L-. Park also argues that he was erroneously 

denied CAT protection because the record compels the 

conclusion that he will be tortured if removed to South 

Korea. Alternatively, he argues that the BIA committed 

several errors that warrant remand.

II. DISCUSSION

A. Criminal-Alien Jurisdiction Bar

The first issue we consider is whether we have 

jurisdiction over Park’s petition for review. See GonzalezCaraveo v. Sessions, 882 F.3d 885, 891 (9th Cir. 2018) (“We 

have jurisdiction to determine our own jurisdiction.” 

(alteration and citation omitted)). The criminal-alien 

jurisdiction bar deprives us of jurisdiction over final orders 

of removal issued against aliens who are removable for 

having committed a criminal offense listed in 8 U.S.C. § 

1227(a)(2)(A)(iii), (B)–(D). 8 U.S.C. § 1252(a)(2)(C). There 

are several exceptions to this jurisdictional bar. See Flores v. 

Barr, 930 F.3d 1082, 1086–87 (9th Cir. 2019) (per curiam). 

Under the Limited Review Provision, 8 U.S.C. 

§ 1252(a)(2)(D), we retain jurisdiction to consider legal or 
14 PARK V. GARLAND

constitutional claims, including whether a particular

conviction falls within the categories defined in Section 

1227.

2 Flores, 930 F.3d at 1086. If the agency does not rely 

on the alien’s conviction in denying relief, the jurisdictional

bar also does not apply. Id. And the Supreme Court has 

clarified that the criminal-alien jurisdiction bar does not 

preclude judicial review of factual challenges to the agency’s 

denial of CAT relief. Nasrallah v. Barr, 140 S. Ct. 1683, 

1690 (2020).

The criminal-alien jurisdiction bar is triggered by Park’s 

convictions. The agency ordered Park removed under 

Section 1227(a)(2)(A)(iii) (aggravated felony) and Section 

1227(a)(2)(B)(i) (controlled-substance offense). Although 

the agency denied Park withholding of removal based on his 

criminal convictions, Park raises a colorable legal claim that 

the BIA applied the wrong legal standard in determining that 

he was ineligible for withholding of removal under 8 U.S.C. 

§ 1231(b)(3)(B)(ii) because he had been convicted of a 

particularly serious crime. Thus, we have jurisdiction to 

review this legal challenge under the Limited Review 

Provision. See 8 U.S.C. § 1252(a)(2)(D); Mairena v. Barr, 

917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam). And as 

stated, there is no barrier to our reviewing Park’s challenge 

to the denial of his application for CAT relief. Nasrallah, 

140 S. Ct. at 1694.

B. Scope of Review

There is also the threshold issue of which agency 

decision we should review. Park argues that we can review 

2 Questions of law include mixed questions—the “application of a legal 

standard to undisputed or established facts.” Guerrero-Lasprilla v. Barr, 

140 S. Ct. 1062, 1068 (2020).
PARK V. GARLAND 15

only the BIA’s decision. When the BIA reviews the IJ’s 

decision de novo, “our review is limited to the BIA’s 

decision except to the extent that the IJ’s opinion is expressly 

adopted.” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th 

Cir. 2021) (internal quotation marks and citation omitted). 

But when the BIA appears to have conducted de novo 

review, yet the decision lacks any significant analysis, it 

“suggests that the BIA gave significant weight to the IJ’s 

findings” and we may “look to the IJ’s . . . decision as a guide 

to what lay behind the BIA’s conclusion.” Avetova-Elisseva 

v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000); see also GarciaMartinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) 

(noting that when “the BIA agrees with the IJ’s reasoning, 

we review both decisions”). 

Here, the BIA’s particularly-serious-crime analysis 

under Matter of Y-L- and its discussion of Park’s CAT claim

were brief. The BIA noted that the IJ “appropriately applied 

the presumption that drug trafficking offenses are 

particularly serious crimes” and stated that it agreed with the 

IJ that Park had not overcome that presumption, citing the 

relevant case law and portions of the IJ’s decision. The BIA 

then added less than a sentence detailing its reasoning for 

why Park could not rebut the Matter of Y-L- presumption: 

“[Park] had multiple arrests for possession of controlled 

substances, multiple types of controlled substances in his 

possession at both arrests, and a loaded firearm in his 

possession.” The BIA’s discussion of Park’s CAT claim, 

which also cited relevant portions of the IJ’s decision, was 

even more cursory. We thus conclude that “the BIA gave 

significant weight to the IJ’s findings,” and we review both 

the BIA’s and the IJ’s decisions, “look[ing] to the IJ’s . . .

decision as a guide to what lay behind the BIA’s 

conclusion.” Avetova-Elisseva, 213 F.3d at 1197; see also 
16 PARK V. GARLAND

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 

2006) (reviewing both decisions where the BIA merely 

stated it agreed with the IJ’s denial of relief).

C. Particularly Serious Crime

In reviewing whether the BIA applied the correct legal 

standard in its particularly-serious-crime analysis, we 

consider “whether the agency relied on the appropriate 

factors and proper evidence to reach [its] conclusion.” 

Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019)

(alteration in original) (internal quotation marks and citation 

omitted). We disturb the agency’s judgment only if it “acted 

arbitrarily, irrationally, or contrary to law” by failing to 

apply or misapplying the proper standard. Bare v. Barr, 975 

F.3d 952, 961 (9th Cir. 2020). “[W]e may not reweigh the 

evidence and reach our own determination about the crime’s 

seriousness.” Hernandez v. Garland, 52 F.4th 757, 765 (9th 

Cir. 2022) (internal quotation marks and citation omitted).

Even if a petitioner otherwise satisfies the standard for

withholding of removal, he is categorically ineligible for this 

relief if he has been convicted of a “particularly serious

crime.” 8 U.S.C. § 1231(b)(3)(B)(ii). There are two 

standards for determining whether an offense is a 

particularly serious crime. First, an aggravated felony with 

an aggregate sentence of at least five years’ imprisonment is 

categorically a particularly serious crime. Id. § 

1231(b)(3)(B)(iv). Second, the Attorney General may 

designate other offenses as particularly serious crimes on a 

case-by-case basis. Bare, 975 F.3d at 961. Because Park

received less than five years’ imprisonment for his 

convictions, our inquiry falls under the second standard.

Generally, the agency’s case-by-case determinations are

governed by the analysis established in In re Frentescu, 18 
PARK V. GARLAND 17

I. & N. Dec. 244, 247 (B.I.A. 1982), as refined by 

subsequent decisions. Bare, 975 F.3d at 961. Under this 

analysis, a court considers: “(1) the nature of the conviction, 

(2) the type of sentence imposed, and (3) the circumstances 

and underlying facts of the conviction.” Id. (internal 

quotation marks omitted and citation omitted). But the 

Attorney General has instructed that aggravated felonies 

involving illicit drug trafficking are presumptively 

particularly serious crimes and that this presumption may be 

overcome only in “the most extenuating circumstances that 

are both extraordinary and compelling.” Matter of Y-L-, 23 

I. & N. Dec. at 274. We afforded Chevron deference to 

Matter of Y-L-, concluding that “the Attorney General’s 

construction of § 1231(b)(3)(B) as providing him with 

discretion to create a strong presumption that drug 

trafficking offenses are particularly serious crimes is not 

impermissible.” Miguel-Miguel v. Gonzales, 500 F.3d 941,

949 (9th Cir. 2007). Consequently, “a Frentescu analysis is 

no longer required with regard to drug trafficking offenses.” 

Id.; see also Gilbertson v. Garland, 7 F.4th 700, 705 n.1 (8th 

Cir. 2021) (explaining the Frentescu framework does not 

apply where Matter of Y-L- applies).

Determining whether an offense is a particularly serious 

crime is “inherently discretionary.” Pechenkov v. Holder, 

705 F.3d 444, 448 (9th Cir. 2012). Whether a drugtrafficking offense overcomes the “extraordinarily strong 

presumption” of particular seriousness under Matter of Y-Lis equally discretionary, if not more so. See Miguel-Miguel, 

500 F.3d at 947; id. at 946 (noting the presumption is 

“rebutted only in the ‘extraordinary,’ ‘extenuating’ and 

‘compelling’ case” (quoting Matter of Y-L-, 23 I. & N. Dec. 

at 274)). The Attorney General did not “define the precise 

boundaries of what . . . unusual circumstances” would 
18 PARK V. GARLAND

overcome this presumption, but he did specify that “at a

minimum” an alien would have to show that his 

drug-trafficking conviction involved:

(1) a very small quantity of controlled 

substance; 

(2) a very modest amount of money paid for 

the drugs in the offending transaction; 

(3) merely peripheral involvement by the 

alien in the criminal activity, transaction, or 

conspiracy; 

(4) the absence of any violence or threat of 

violence, implicit or otherwise, associated 

with the offense; 

(5) the absence of any organized crime or 

terrorist organization involvement, direct or 

indirect, in relation to the offending activity; 

and 

(6) the absence of any adverse or harmful 

effect of the activity or transaction on 

juveniles.

Matter of Y-L-, 23 I. & N. Dec. at 276–77. “Only if all of 

these criteria were demonstrated by an alien would it be 

appropriate to consider whether other, more unusual 

circumstances (e.g., the prospective distribution was solely 

for social purposes, rather than for profit) might justify 

departure from” the presumption that drug trafficking 

offenses are particularly serious crimes. Id. at 277 (second 

emphasis added). Thus, if an alien fails to satisfy even one 

of the Matter of Y-L- criteria, he cannot overcome the 

presumption that his drug-trafficking crime is particularly 
PARK V. GARLAND 19

serious, and the inquiry may cease. See Miguel-Miguel, 500 

F.3d at 946–47; Tunis v. Gonzales, 447 F.3d 547, 549–50 

(7th Cir. 2006).

But as previously noted, the minimum criteria specified 

in Matter of Y-L- are not exhaustive, and the Attorney 

General did not prohibit the agency from considering other 

criteria indicating that a particular drug-trafficking offense 

is not “the very rare case” where the presumption of 

particular seriousness should not apply. 23 I. & N. Dec. at 

276. To the contrary, the Attorney General instructed that “if 

all of these criteria were demonstrated,” it “would be 

appropriate” for the agency “to consider whether other, more 

unusual circumstances” might justify departing from the 

presumption. Id. at 277. That is, the agency may not consider 

non-listed factors that favor rebutting the presumption 

before it determines that the alien has satisfied the listed 

minimum criteria, id., but the same is not true if the agency 

identifies unlisted factors or circumstances that demonstrate 

the crime of conviction was serious and the presumption 

should apply. The agency’s ultimate task, after all, is to 

apply the presumption absent “the most extenuating 

circumstances that are both extraordinary and compelling.” 

Id. at 274. The agency does not abuse its discretion by

concluding that this extraordinary-and-compelling standard

is not met based on circumstances evidencing that the

offense is particularly serious, even if those circumstances

were not expressly listed by the Attorney General in defining 

the minimum showing that an alien must make to overcome 

the presumption.

In this case, Park does not dispute that his conviction at 

issue—possession of cocaine for sale in violation of CHSC 

§ 11351 from his second arrest—is an aggravated drugtrafficking felony and that Matter of Y-L- governs. 23 I. & 
20 PARK V. GARLAND

N. Dec. at 274; see Lopez v. Sessions, 901 F.3d 1071, 1074–

75 (9th Cir. 2018) (holding that CHSC § 11351 defines an 

aggravated felony for purposes of removal under 8 U.S.C. 

§ 1227(a)(2)(A)(iii)). Instead, Park contends that the BIA 

committed two legal errors in determining that he failed to 

rebut the Matter of Y-L- presumption. First, he argues that 

the BIA improperly relied on his possession of a firearm in 

his first arrest, which was separate from his drug-trafficking 

conviction resulting from his second arrest. Second, he 

argues that the BIA failed to apply the Matter of Y-L- factors 

and erroneously substituted its own factors. 

There is no doubt that the BIA’s particularly-seriouscrime analysis was cursory and referenced facts not 

explicitly listed in Matter of Y-L-’s minimum-standard

factors. Nonetheless, the BIA applied Matter of Y-L-’s 

presumption and its decision was supported by adequate 

reasoning. The BIA cited both Matter of Y-L- and our 

precedent granting Chevron deference to that decision. And 

it concluded that the IJ “appropriately applied the 

presumption that drug trafficking offenses are particularly 

serious crimes,” an unmistakable reference to Matter of Y-L-

’s standard. Thus, although the agency’s citation of the 

correct standard is not determinative, see Gomez-Sanchez v. 

Sessions, 892 F.3d 985, 995 (9th Cir. 2018), we are confident 

that the BIA applied the Matter of Y-L- presumption when it 

decided this case, see Martinez v. Clark, 36 F.4th 1219, 

1230–31 (9th Cir. 2022) (explaining that absent indication 

of a problem, “we accept that the BIA applied the correct 

legal standard if the BIA expressly cited and applied [the 

relevant caselaw] in rendering its decision” (alteration in 

original) (internal quotation marks and citation omitted)). 

The question posed by Park’s petition is really whether 

the agency misapplied Matter of Y-L-. Park is correct that 
PARK V. GARLAND 21

neither the IJ nor the BIA recited the Matter of Y-L- criteria

that a petitioner must satisfy to rebut the presumption of 

particular seriousness. But they are not required to do so. 

Sanabria Morales v. Barr, 967 F.3d 15, 22 & n.1 (1st Cir. 

2020); cf. Bare, 975 F.3d at 962–63 (holding the agency did 

not need to “explicitly” list or discuss the elements required 

to prove possession of a firearm by a felon when the agency 

“noted facts which correspond to all the elements of the 

offense as weighing in favor of the crime being particularly 

serious”). It is also true that the BIA considered facts not 

directly referenced in Matter of Y-L-’s minimum factors. 

Specifically, the BIA concluded that Park’s crime was 

particularly serious because “he had multiple arrests for 

possession of controlled substances, multiple types of 

controlled substances in his possession at both arrests, and a 

loaded firearm in his possession.” 

Under the Chenery doctrine, “reviewing courts . . . 

generally must assess the lawfulness of an agency’s action 

in light of the explanations the agency offered for it rather 

than any ex post rationales a court can devise.” Garland v. 

Ming Dai, 141 S. Ct. 1669, 1679 (2021) (citing SEC v. 

Chenery Corp., 318 U.S. 80 (1943)); see also GutierrezZavala v. Garland, 32 F.4th 806, 810 (9th Cir. 2022). But 

we also “must ‘uphold’ even ‘a decision of less than ideal 

clarity if the agency’s path may reasonably be discerned.’” 

Ming Dai, 141 S. Ct. at 1679 (citation omitted). We do not 

require that the agency “engage in a lengthy discussion of 

every contention raised by a petitioner. Instead, all that is 

required is that it consider the issues raised, and announce its 

decision in terms sufficient to enable a reviewing court to 

perceive that it has heard and thought and not merely 

reacted.” Hernandez, 52 F.4th at 768 (internal quotation 

marks and citations omitted). 
22 PARK V. GARLAND

The agency’s path of reasoning here is discernable. The 

IJ invoked the Matter of Y-L- presumption and thoroughly 

recited the facts from Park’s arrests. The BIA affirmed the 

IJ’s reasoning and added its own discussion of the 

presumption. As we have explained, the ultimate question 

for the agency under Matter of Y-L- is whether the 

circumstances of the drug-trafficking conviction establish 

that it is the “extraordinary and compelling” case warranting 

departure from the presumption that such conduct is 

particularly serious. 23 I. & N. Dec. at 274. This case 

demonstrates that there can be circumstances not listed by 

the Attorney General that establish a particular conviction is 

not such an extraordinary case. The agency did not abuse its 

discretion by considering improper factors or evidence when

it determined that Park had been arrested twice in three days 

for drug-related offenses and possessed a variety of drugs 

both times. See Flores-Vega, 932 F.3d at 884. Repeated

conduct of the same or similar character is no doubt relevant 

in assessing the seriousness and risk of danger posed to the 

community by the petitioner’s conduct. It is also relevant to 

assessing whether the petitioner was “merely peripheral[ly] 

involve[d]” in the criminal activity, which is one of Matter 

of Y-L-’s factors. 23 I. & N. Dec. at 276; see id. at 277–78 

(finding that the petitioners were “direct actor[s] or 

perpetrator[s] . . . in their respective criminal activities”). 

Likewise, that Park possessed multiple types of drugs is 

relevant to assessing the seriousness of his trafficking 

conviction. This fact can inform the extent of a petitioner’s 

involvement in drug trafficking. It may also inform the 

quantity of drugs that a petitioner possessed, which is also 

one of Matter of Y-L-’s factors. Id. at 276. Based on the 

specific facts here, the BIA’s reference to the variety of 

drugs that Park possessed at his second arrest inherently 
PARK V. GARLAND 23

implicates the quantity of drugs that he possessed. At his 

second arrest, police found that Park possessed five small 

bags of cocaine ranging in weight from .8 grams to 1.4 

grams, a bag of cocaine weighing 16.8 grams, over 137 

Xanax pills and 95 Ecstasy pills, and small amounts of other 

pills and marijuana. The IJ recounted the fruits of this search 

in his decision, which the BIA relied on and implicitly 

adopted. On this record, any logical gap between the 

multiple types of drugs that Park possessed and the quantity 

of drugs that he possessed is immaterial. See id. at 277 

(finding that the petitioners “failed to demonstrate that the 

volume or value of controlled substances involved in their 

offenses was de minimis or inconsequential”). The agency’s 

reference to the various substances that Park possessed 

demonstrates that it recognized Park was not convicted for 

having only “a very small” or “inconsequential” amount. Id. 

at 276–77; cf. United States v. Lopez, 477 F.3d 1110, 1114 

& n.16 (9th Cir. 2007) (“[A] typical dose of cocaine can be 

as little as one-fourth of a gram . . . .” (emphasis added) 

(citation omitted)). In sum, while the BIA’s analysis was 

limited, we conclude that the factors it considered were 

consistent with Matter of Y-L- and that its decision was 

“comfortably on the right side of the line separating the 

‘tolerably terse’ from the ‘intolerably mute.’” Hernandez, 52 

F.4th at 768 (citation omitted). 

Even if we were to conclude that the BIA erred by 

considering facts not expressly incorporated into Matter of 

Y-L-’s minimum standard, we would still deny Park’s 

petition. We have recognized that remand is an “idle and 

useless formality” when the BIA applies the wrong legal 

standard if, as a result of its factual findings, “neither the 

result nor the BIA’s basic reasoning would change.” Singh 

v. Barr, 935 F.3d 822, 827 (9th Cir. 2019) (per curiam)
24 PARK V. GARLAND

(citation omitted); see also Halim v. Holder, 590 F.3d 971, 

980 (9th Cir. 2009) (Cudahy, J., concurring) (explaining 

remand was futile because agency’s adverse-credibility

determination left “no basis for evidentiary analysis” and 

necessarily defeated petitioner’s claim despite intervening 

caselaw changing the applicable legal standards). That is the 

case here. Based on the agency’s assessment of the facts 

underlying Park’s conviction, which he does not challenge,

it is a legal certainty that Park cannot satisfy Matter of Y-L-

’s minimum criteria required to overcome the presumption 

that his drug-trafficking conviction is a particularly serious 

crime. Thus, this is one of those “narrow circumstances” 

where remand is unwarranted because the law dictates the 

outcome that the agency must reach. See Calcutt v. FDIC, 

143 S. Ct. 1317, 1321 (2023) (per curiam). 

D. CAT Relief

Park also alleges that the BIA committed multiple errors 

in denying him CAT relief. He argues that (1) the BIA 

exceeded its regulatory authority by impermissibly engaging 

in predictive fact-finding, (2) the BIA failed to give a 

reasoned explanation for its decision, (3) the evidence 

compels the conclusion that he is more likely than not to be 

tortured by the South Korean government, and (4) the BIA 

erred by not aggregating his potential sources of torture. We 

reject each of Park’s arguments and conclude that the BIA 

did not err in denying CAT relief.

1. Procedural Arguments

We review questions of law regarding CAT claims de 

novo. Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154 

(9th Cir. 2022). Park’s argument that the BIA made 

impermissible factual findings is premised on the IJ’s 

misstatement that Park had not shown that he would be 
PARK V. GARLAND 25

tortured on account of a protected ground. Park argues this 

legal error necessarily means the IJ’s factual findings were 

also legally infirm, and that the BIA’s adoption of the IJ’s

factual findings without first remanding for the IJ to apply 

the proper legal standard constituted impermissible factfinding. We disagree. 

The BIA reviews an IJ’s CAT determination under a 

mixed standard of review: first, the BIA reviews for clear 

error the IJ’s predictive factual findings as to whether a 

petitioner will be tortured in the country of removal, and 

second, the BIA exercises de novo review to determine 

whether those facts meet the legal requirements for CAT 

relief. See 8 C.F.R. § 1003.1(d)(3)(i)–(ii); Perez-Palafox v. 

Holder, 744 F.3d 1138, 1145 (9th Cir. 2014). Here, the BIA 

concluded that the IJ’s predictive factual findings were not

clearly erroneous. It then considered whether those facts 

constituted torture and concluded that “[Park] ha[d] not 

established it is more likely than not he would be subject to 

torture either for refusing to do or agreeing to perform 

military service, or due to his convictions in the United 

States.” This is precisely what the BIA is required to do. See 

Perez-Palafox, 744 F.3d at 1145–46. And Park “does not 

point to any fact found by the IJ that was ignored by the BIA, 

or any fact found by the BIA that was not found by the IJ.” 

Id. at 1145.

Moreover, “[w]here the BIA conducts a de novo review, 

[a]ny error committed by the IJ will be rendered harmless by 

the [BIA]’s application of the correct legal standard.” 

Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009) 

(second alteration in original) (citation omitted). The BIA 

corrected the IJ’s misstatement of the legal standard for CAT 

relief and concluded that Park nonetheless failed to establish

that “it is more likely than not he will be tortured, regardless 
26 PARK V. GARLAND

of the basis, upon his removal to South Korea.” See Cole v. 

Holder, 659 F.3d 762, 770 (9th Cir. 2011) (“[A]n applica[nt] 

for CAT relief need not show that he will be tortured ‘on 

account of’ any particular ground.”). Thus, the IJ’s legal 

error did not undermine its factual findings and was cured 

when the BIA applied the correct legal standard to the facts

found by the IJ. See Avendano-Hernandez v. Lynch, 800 

F.3d 1072, 1078 (9th Cir. 2015); Singh v. Holder, 591 F.3d 

1190, 1198 (9th Cir. 2010). 

Park is also incorrect that the BIA failed to provide a 

reasoned explanation for its decision. This argument is

premised on his mistaken view that we can review only the 

BIA’s decision. We start with the presumption that the BIA 

reviewed the record and considered all relevant evidence. 

See Hernandez, 52 F.4th at 770–71; Szonyi v. Barr, 942 F.3d 

874, 897 (9th Cir. 2019). And as discussed, we can look to 

the IJ’s decision “as a guide to what lay behind the BIA’s 

[decision].’” Avetova-Elisseva, 213 F.3d at 1197; see also 

Rodriguez-Jimenez v. Garland, 20 F.4th 434, 438 (9th Cir. 

2021), overruled on other grounds by Alam v. Garland, 11 

F.4th 1133, 1135–36 (9th Cir. 2021) (en banc). Only where

there is some indication that the BIA overlooked relevant

evidence, including by “misstating the record or failing to 

mention highly probative or potentially dispositive 

evidence,” do we question whether it properly considered 

the record. Hernandez, 52 F.4th at 771–72 (alteration 

adopted) (citation omitted).

Here, the IJ thoroughly addressed both of Park’s futuretorture theories, his testimony, and the documentary and 

country-conditions evidence. The IJ specifically explained 

why the harm that Park fears is speculative and nonparticularized and would not constitute torture. The BIA 

cited these portions of the IJ’s decision multiple times in its 
PARK V. GARLAND 27

CAT discussion. It is also clear that the BIA considered 

Park’s two theories because it concluded that he failed to 

show “it is more likely than not he would be subject to 

torture either for refusing to do or agreeing to perform 

military service, or due to his convictions in the United 

States.” When read alongside the IJ’s multi-page CAT 

analysis, the BIA’s decision “adequately convey[s] the 

reasoning behind the denial of [Park’s] CAT claim.” 

Rodriguez-Jimenez, 20 F.4th at 439 (citation omitted).3

2. Merits

We review factual findings underlying the BIA’s denial 

of relief for substantial evidence. Plancarte Sauceda v. 

Garland, 23 F.4th 824, 831 (9th Cir. 2022). The agency’s 

factual findings “are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the 

contrary.” 8 U.S.C. § 1252(b)(4)(B). To be eligible for CAT 

relief, a petitioner must show that it is more likely than not 

3 The cases Park relies on are inapposite. In Pirir-Boc v. Holder, 750 

F.3d 1077, 1085–86 (9th Cir. 2014), we held that the BIA failed to 

provide a “reasoned explanation” for its decision when it stated only that 

“[petitioner] has failed to establish a prima facie case for eligibility for 

relief under the [CAT].” Id. at 1085. The IJ in Pirir-Boc denied the 

petitioner’s CAT claim solely because he failed to specifically request 

that relief. Id. at 1085 n.9. But here, the IJ addressed the merits of Park’s 

CAT claim. Additionally, the BIA here did not provide such a conclusory 

decision because it linked the CAT standard to Park’s two theories of 

torture. And the IJ’s decision provides adequate reasoning to support the 

BIA’s decision. Cole v. Holder, 659 F.3d at 772, a case in which the 

agency failed to consider “potentially dispositive evidence,” is likewise 

inapt because Park has not demonstrated that the BIA or IJ failed to 

consider any similarly dispositive evidence. See id. at 771–75 

(remanding where the BIA mischaracterized an expert’s testimony and 

entirely failed to acknowledge a second expert and corroborating 

documentary evidence that supported the petitioner’s CAT claim).
28 PARK V. GARLAND

that he would be tortured by or with the consent or 

acquiescence of a public official in the country of removal. 

Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020). 

“Torture is an extreme form of cruel and inhuman treatment

and does not include lesser forms of cruel, inhuman or 

degrading treatment or punishment . . . .” 8 C.F.R. 

§ 1208.18(a) (defining torture as “any act by which severe 

pain or suffering, whether physical or mental, is intentionally 

inflicted on a person”). 

In determining whether an applicant is likely to be 

tortured, the agency must consider all relevant evidence, 

including (i) evidence of past torture, (ii) evidence that the 

applicant could relocate within the country of removal, (iii) 

“[e]vidence of gross, flagrant or mass violations of human 

rights within the country of removal,” and (iv) other relevant 

information regarding conditions in the country of removal.

Id. § 1208.16(c)(3). Generalized evidence of violence and 

crime is insufficient to establish a likelihood of torture. 

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 

2010) (per curiam). The record must show that it is more 

likely than not that the petitioner will face a particularized

and non-speculative risk of torture. See Tzompantzi-Salazar 

v. Garland, 32 F.4th 696, 706–07 (9th Cir. 2022). The 

agency must also consider the aggregate risk of torture that 

an applicant would face from all possible sources.

Velasquez-Samayoa, 49 F.4th at 1154. 

Recognizing that “[t]orture does not include pain or 

suffering arising only from, inherent in or incidental to 

lawful sanctions,” 8 C.F.R. § 1208.18(a)(3), Park 

nonetheless argues that South Korea’s “lawful” yet 

“draconian” punishments for drug crimes and its militaryconscription policy rise to the level of torture. Again, we 

disagree.
PARK V. GARLAND 29

i. Drug Convictions 

Substantial evidence supports the agency’s 

determination that Park is unlikely to be tortured because of 

his California drug convictions. Generally, prosecution and 

punishment for criminal activity do not constitute torture. 

See Bromfield v. Mukasey, 543 F.3d 1071, 1077 (9th Cir. 

2008) (noting that “legitimate criminal prosecution 

generally does not constitute persecution”); Cruz-Samayoa

v. Holder, 607 F.3d 1145, 1151 (6th Cir. 2010) (“[T]here is

a marked distinction between persecution and criminal 

prosecution.”); Abdel-Rahman v. Gonzales, 493 F.3d 444, 

452 (4th Cir. 2007) (noting that the principle that potential 

criminal prosecution generally does not constitute 

persecution “respects a government’s freedom to devise its 

own laws and penalties for criminal conduct” (citation 

omitted)); Sharma v. Garland, 9 F.4th 1052, 1067 (9th Cir.

2021) (harm not rising to the level of persecution 

“necessarily falls short of the definition of torture”). The 

regulations implementing the CAT specifically provide that 

“[t]orture does not include pain or suffering arising only 

from, inherent in or incidental to lawful sanctions.” 8 C.F.R. 

§ 1208.18(a)(3). The regulations further define “lawful 

sanctions” as “judicially imposed sanctions and other 

enforcement actions authorized by law, including the death 

penalty.” Id. This does not give foreign countries unfettered 

discretion to avoid the CAT because the definition of “lawful 

sanctions” does not include actions “that defeat the object 

and purpose of the Convention Against Torture to prohibit 

torture.” Id. That is, “[a] government cannot exempt 

torturous acts from CAT’s prohibition merely by authorizing 

them as permissible forms of punishment in its domestic 

law.” Nuru v. Gonzalez, 404 F.3d 1207, 1221 (9th Cir. 

2005); see Khouzam v. Ashcroft, 361 F.3d 161, 169–70 (2d 
30 PARK V. GARLAND

Cir. 2004) (“It would totally eviscerate the CAT to hold that 

once someone is accused of a crime[,] it is a legal 

impossibility for any abuse inflicted on that person to 

constitute torture.”). But a country’s decision to prosecute 

certain crimes more aggressively or impose more severe 

punishments than the United States has chosen to impose 

does not necessarily establish torture. See Li v. Holder, 559 

F.3d 1096, 1108–09 (9th Cir. 2009) (holding that absent a 

showing of “disproportionately severe punishment” or 

“pretextual prosecution,” criminal prosecution does not 

constitute persecution (citation omitted)); Fisher v. INS, 79 

F.3d 955, 961–62 (9th Cir. 1996) (en banc) (concluding that 

enforcement of Iran’s “dress and conduct rules,” although 

“harsh by Western standards,” does not constitute 

persecution). 

Here, South Korea’s extraterritorial-jurisdiction law, 

allowing it to re-prosecute its citizens for crimes committed

and punished outside of South Korea, is not inherently 

torturous. Nor is there any evidence that South Korea would 

apply its law more harshly to Park than to someone else 

similarly situated to him. Additionally, the agency properly 

found that the possibility that South Korea may prosecute 

Park and impose harsh punishment for his California drug 

crimes is entirely speculative. Pointing to South Korea’s 

criminal law, Park argues that “nothing precludes the South 

Korean government from sentencing [him] to twenty years, 

life, life imprisonment with labor, or even the death penalty 

for possession for sale of cocaine.” But Park has not shown 

that any of these outcomes are likely. South Korean law

provides that the government could invoke extraterritorial 

jurisdiction to prosecute Park for the crimes he committed in 
PARK V. GARLAND 31

California,

4 and, if convicted, that he could receive a range 

of sentences from 10 years’ imprisonment to the death 

penalty.

5 However, South Korean law specifically provides

that if “an offender has undergone execution of a sentence 

imposed abroad because of a crime . . . the punishment 

therefor [sic] in Korea may be mitigated or remitted.”6 This 

makes Park’s theory of torture based on his drug convictions

a chain of speculative and unsubstantiated hypotheticals: the

South Korean government would (1) have to learn of Park’s

California convictions, (2) choose to prosecute him for those 

crimes, (3) obtain a conviction, and (4) exercise its 

discretion to impose the life imprisonment or death sentence 

that he fears. See Medina-Rodriguez v. Barr, 979 F.3d 738, 

750–51 (9th Cir. 2020) (concluding that “[t]he evidence does 

not establish that any step in this hypothetical chain of 

events is more likely than not to happen, let alone that the 

entire chain will come together to result in the probability 

of torture” (alteration in original) (citation omitted)).

Still, Park contends that the South Korean government

“will likely single him out” based on his “criminal status.”

But Park himself testified that he was “not sure” how South 

Korea would learn of his California convictions. And he

does not identify a single example where the South Korean 

4

See Criminal Act, Act No. 11731, Apr. 5, 2013, arts. 3 & 7, (S. Kor.), 

translated in Korean Legislation Research Institute online database, 

https://elaw.klri.re.kr/eng_service/lawView.do?hseq=28627&lang=EN

G [https://perma.cc/2WUM-N9BE]. 

5

See Narcotics Control Act, Act. No. 14019, Feb. 3, 2016, art. 58(1)–(2), 

(S. Kor.), translated in Korean Legislation Research Institute online 

database, https://elaw.klri.re.kr/eng_service/lawView.do?hseq=37716&

lang=ENG [https://perma.cc/X4K2-DC5X].

6

Criminal Act, Act No. 11731, supra, art. 7.
32 PARK V. GARLAND

government has prosecuted someone for crimes that they 

were convicted of and punished for abroad. Park’s strongest 

evidence is a 2018 news article hypothesizing that South 

Korea might prosecute the thousands of Korean students 

studying in Canada for smoking marijuana when they return 

to South Korea. But the article notes that exactly “how police 

would test those returning from Canada remain[s] hazy.” 

And while “[e]xperts suggested enforcement would focus 

more on drug traffickers than casual users,” the article also 

notes that “police are more concerned with the transportation 

of marijuana into South Korea.” Otherwise, Park relies only 

on unsubstantiated hearsay from former South Korean 

residents who say that he could be re-prosecuted and 

punished for his California crimes. This record does not 

compel the conclusion that South Korea will single out Park

or punish him in the manner that he fears, let alone torture 

him because of his criminal record. See Blandino-Medina v.

Holder, 712 F.3d 1338, 1348 (9th Cir. 2013) (holding that

agency properly denied CAT protection where petitioner

“merely presented a series of worst-case scenarios”). 

ii. Military Conscription

The agency’s determination that Park will not be tortured 

under South Korea’s military-conscription policy is also 

supported by substantial evidence. Like Park’s fear of torture 

based on his criminal record, the harm he fears from 

mandatory military service is “inherent in or incidental to”

generally applicable South Korean law. See 8 C.F.R. 

§ 1208.18(a)(3). The news articles that Park submitted to the 

agency demonstrate that some members of the South Korean 

military have had tragic experiences, including mistreatment 

and suicide. But as with other legal requirements and 

policies, military conscription and punishment for evasion of 

military duty seldom constitute torture. Cf. Zehatye v.
PARK V. GARLAND 33

Gonzales, 453 F.3d 1182, 1187 (9th Cir. 2006) (“[F]orced

conscription or punishment for evasion of military duty 

generally does not constitute persecution.”). And the record

evidence does not establish that South Korea’s decades-old 

conscription policy, which applies equally to all male 

citizens within the designated age range, is imposed “with 

the intent of inflicting pain and suffering.” Deng Chol v. 

Garland, 25 F.4th 1063, 1070 (8th Cir. 2022)

(“[C]onscription itself does not qualify as CAT torture 

unless done with the intent of inflicting pain and suffering 

on the conscript.”); see 8 C.F.R. § 1208.18(a)(1). The same 

is true of South Korea’s alternative to military 

conscription—three years of labor—which is equally 

available to anyone who wishes to avoid military service. 

Park also has not met his burden to show that he would 

face a particularized risk of mistreatment from military 

conscription as a “cultural outsider.” Because he is an 

“American-identifying South Korea expatriate” who has not 

lived in South Korea since he was young, Park argues that 

he “faces unique risks.” But he also was “not sure” what 

would happen if he were required to join the military. The

evidence of “endemic bullying” and abuse by officers, 

isolation from the loss of internet and phone access, and the

suicide rate among military members does not establish that 

these impacts affect expatriates more than other conscripts. 

Instead, there is evidence in the record showing that 

expatriates and dual citizens have completed their military 

service unharmed. In sum, while there is evidence of 

mistreatment within the South Korean military, we cannot 

conclude that the record compels the conclusion that the

approximately 600,000 people currently serving in the South 

Korean military are being subject to torture or that Park 
34 PARK V. GARLAND

would face a particularized risk of any level of mistreatment 

because he is an expatriate.

Finally, the agency did not fail to consider the aggregate 

impact of Park’s claimed risks of torture. There is no 

indication that the BIA failed to “tak[e] into account all 

possible sources of torture” where it expressly referenced 

both theories. Velasquez-Samayoa, 49 F.4th at 1154 (citation 

omitted). Rather, it concluded that Park had not established 

that any of the mistreatment he fears “regardless of the basis” 

rose to the level of torture. The agency “said enough to 

convince us that it did, in fact, find that there is less than a 

50% chance that [Park] will be tortured by all potential 

sources of torture . . . in the aggregate.” Iraheta-Martinez v. 

Garland, 12 F.4th 942, 960 (9th Cir. 2021). 

PETITION DENIED.7

7 Park’s motion to extend the time to file a reply in support of his motion 

for stay of removal (Dkt. No. 13) is granted, and his motion for stay of 

removal (Dkt. No. 1) is denied.