NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EUNHEA KWAK, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 18-73382 

Agency No. A206-407-945 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 10, 2021**

San Francisco, California

Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.

Eunhea Kwak, a citizen of South Korea, petitions for review of a decision by 

the Board of Immigration Appeals (BIA) dismissing her appeal of an Immigration 

Judge’s (IJ) order denying her applications for asylum, withholding of removal, and 

relief under the Convention Against Torture (CAT). We have jurisdiction to review 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

DEC 15 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Kwak’s petition under 8 U.S.C. § 1252.

1

 We review questions of law, and mixed 

questions of law and fact, de novo. Torres v. Barr, 976 F.3d 918, 923 (9th Cir. 

2020). We review factual findings for “substantial evidence.” Mairena v. Barr, 917 

F.3d 1119, 1123 (9th Cir. 2019). Under that standard, we must find the BIA’s 

findings sufficient unless, after reviewing the record as a whole, “any reasonable 

adjudicator” would have been “compelled” to reach a different conclusion. 8 U.S.C. 

§ 1252(b)(4)(B); Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021); Mairena, 917 

F.3d at 1123.

1. The BIA did not err in concluding that Kwak committed a “particularly 

serious crime,” and is thus statutorily ineligible for asylum and withholding of 

removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); see also Delgado v. 

Holder, 648 F.3d 1095, 1101 (9th Cir. 2011) (en banc). We lack jurisdiction to 

review the agency’s ultimate determination that Kwak’s crime was “particularly 

serious.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020). However, we retain 

jurisdiction to determine whether the agency applied the correct legal standard to 

1 Kwak’s petition is not moot even though she has returned to South Korea. “[A] 

petition for review is mooted by the petitioner’s removal from the United States 

unless there is ‘some remaining “collateral consequence” that may be redressed by 

success on the petition.’” Del Cid Marroquin v. Lynch, 823 F.3d 933, 935 (9th Cir. 

2016) (per curiam) (quoting Abdala v. INS, 488 F.3d 1061, 1064 (9th Cir. 2007)). 

Despite Kwak’s voluntary request for removal and her subsequent removal to South 

Korea, the government has not shown that Kwak’s success on her petition would not 

provide her any benefit. See Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 n.1 

(9th Cir. 2015).
3 

that inquiry. Id. We review the BIA’s decision for abuse of discretion, and may 

grant relief only if the agency’s decision was arbitrary, irrational, or contrary to law. 

Id.

Here, the BIA properly evaluated Kwak’s crimes under the three-factor test in 

Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982). See AvendanoHernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). Under Frentescu, “[t]he 

factors to be considered are: (1) the nature of the conviction, (2) the type of sentence 

imposed, and (3) the circumstances and underlying facts of the conviction.” Bare, 

975 F.3d at 961 (quotations omitted). The agency first considered the nature of 

Kwak’s arson offense, describing it as an “inherently dangerous” crime that could 

have resulted in death or serious injury to persons in Kwak’s 30-story apartment 

building. The agency then considered that Kwak received a suspended four-year 

prison sentence and a year in jail, with credit for time served. The agency also 

reviewed the circumstances of Kwak’s conviction, acknowledging her testimony 

that she had not been in her “right mind” at the time of the fire, but finding that her 

mental state did not excuse the serious nature of the crime. The BIA thus applied 

the correct legal standard, and we may not reweigh the evidence. AvendanoHernandez, 800 F.3d at 1077.

2. In the alternative, the BIA determined that Kwak was not entitled to 

asylum or withholding of removal because Kwak’s proposed social group—“victims 
4 

of sex trafficking”—was not cognizable. A “particular social group must exist 

independently” of the claimed harm, and the BIA determined that the group “victims 

of sex trafficking” is defined only by the harm inflicted on its members. DiazReynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 2020). Kwak did not address this 

aspect of the BIA’s decision in her brief, and thus waived any challenge to it. See 

Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“an issue referred to 

in the appellant’s statement of the case but not discussed in the body of the opening 

brief is deemed waived”). Kwak has likewise waived any challenge to her claim for 

deferral of removal under CAT. See id.

PETITION DENIED.