Lorena Fuentes De Ramirez v. Jeffrey Rosen ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENA FUENTES DE RAMIREZ, No. 18-73358
19-72883
Petitioner,
Agency No. A208-924-017
v.
JEFFREY A. ROSEN, Acting Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2021**
Pasadena, California
Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.
Lorena Fuentes de Ramirez and her two children, who are natives and
citizens of El Salvador, petition for review of a decision of the Board of
Immigration Appeals (“BIA”) dismissing their appeal from an order of an
immigration judge (“IJ”) denying their applications for asylum, withholding of
*
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).
removal, and protection under the Convention Against Torture (“CAT”).1 Fuentes
de Ramirez also argues that the agency2 lacked jurisdiction and violated her due
process rights, and that it erred in denying her request for a continuance to allow
for consolidation of her proceedings with her husband’s. We have jurisdiction
under 8 U.S.C. § 1252. We deny the petition for review.
Fuentes de Ramirez moved to terminate her proceedings, arguing that she
was improperly denied a credible fear interview, and that the IJ consequently
lacked jurisdiction over her applications. We review questions of law de novo,
except to the extent that deference is owed to the BIA’s interpretation of the
governing statutes and regulations. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th
Cir. 2004). The government properly exercised its discretion by placing Fuentes
de Ramirez in regular removal proceedings, Flores v. Barr, 934 F.3d 910, 916
(9th Cir. 2019) (citing Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 521-22
(BIA 2011)), which do not require a credible fear interview, see 8 U.S.C. § 1229a.
Contrary to Fuentes de Ramirez’s argument, 8 C.F.R. § 208.2(a)’s grant of initial
jurisdiction to U.S. Citizenship and Immigration Services does not apply here. See
1
Because Fuentes de Ramirez’s children’s applications are derivative and
allege no claims independent of their mother’s, this disposition refers to Fuentes de
Ramirez’s petition in the singular for simplicity.
2
We refer to the BIA and the IJ collectively as “the agency.” See Medina-
Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014) (explaining that this court will
review both the BIA and the IJ’s decisions when the BIA cites Matter of Burbano,
20 I. & N. Dec. 872 (BIA 1994)).
2
8 C.F.R. § 208.2(b).
Alternatively, Fuentes de Ramirez argues that her due process rights were
violated because she was entitled to a credible fear interview. We apply de novo
review to claims of due process violations in immigration proceedings. Lianhua
Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). Even if it had been an error to
deny Fuentes de Ramirez a credible fear interview, to prove a due process violation
resulting from the denial, she would need to “show prejudice, which means that the
outcome of the proceeding may have been affected by the alleged violation.”
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). Fuentes de Ramirez has not
shown prejudice due to being placed in regular removal proceedings instead of
expedited removal proceedings. The procedures are similar under either form of
review, except that an immigrant in expedited removal proceedings faces the initial
hurdle of having to pass a credible fear screening, after which an IJ will consider
her claims de novo. See Innovation Law Lab v. Wolf, 951 F.3d 1073, 1084 (9th
Cir. 2020). By skipping the credible fear stage, Fuentes de Ramirez was
effectively treated as though she passed the credible fear interview—no better
outcome could have resulted from having a credible fear interview.
Fuentes de Ramirez nonetheless argues that she suffered prejudice because
the agency made an adverse credibility determination based, in part, on her failure
to mention threats or extortion in El Salvador during her initial interview at the
3
border. According to Fuentes de Ramirez, a credible fear interview would have
given her the opportunity to testify about her experience in more detail, and this
additional testimony would have bolstered her credibility. Nothing in the record
suggests that the availability of credible fear testimony would have prevented the
agency from relying on the significant inconsistencies in Fuentes de Ramirez’s
other evidence, including her border interview, hearing testimony, and
documentary evidence. Therefore, we decline to hold that the government violated
Fuentes de Ramirez’s constitutional rights.
The agency did not abuse its discretion by denying Fuentes de Ramirez’s
motion to continue her proceedings so that she could consolidate her proceedings
with her husband’s. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)
(stating the standard of review). Fuentes de Ramirez’s husband’s case was already
before the BIA when she made the request, and the lack of consolidation had no
effect on his ability to testify in support of her case.
Substantial evidence supports the agency’s adverse credibility
determination. Fuentes de Ramirez testified that the MS-13 gang extorted her
husband, threatened to kill her family, killed two of her neighbors, and told her to
leave the area. The agency found that Fuentes de Ramirez failed to mention key
parts of this story during her border interview, and that there were significant
inconsistencies between her border interview, hearing testimony, and documentary
4
evidence as to the circumstances surrounding her neighbors’ murders and the
extortion threats received by her family members. See Shrestha v. Holder, 590
F.3d 1034, 1047 (9th Cir. 2010) (“[W]hen an inconsistency is at the heart of the
claim it doubtless is of great weight.”). Fuentes de Ramirez’s explanations—
mainly, that she was improperly denied a credible fear interview and that her
inconsistencies should be considered trivial—do not compel a contrary conclusion.
See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). In the absence of credible
testimony, Fuentes de Ramirez’s asylum and withholding of removal claims
fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).3
Substantial evidence also supports the agency’s denial of CAT relief because
Fuentes de Ramirez failed to show it is more likely than not that she will be
tortured by or with the consent or acquiescence of the government if returned to El
Salvador. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).4
3
In light of our conclusion regarding credibility, we need not reach the
agency’s alternative holdings that Fuentes de Ramirez failed to establish a nexus
between her fear of persecution and a protected ground, that the government was
unable or unwilling to protect her, or that she could not relocate within El Salvador
to avoid persecution. See Simeonov, 371 F.3d at 538.
4
With respect to petition no. 19-72883, the BIA did not abuse its discretion
by denying Fuentes de Ramirez’s motion to reopen. Her challenge to the IJ’s
jurisdiction based on Pereira v. Sessions, 138 S. Ct. 2105 (2018), is foreclosed by
this court’s recent precedent. See Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th
Cir. 2019) (holding that Pereira’s “narrow ruling does not control” questions of an
Immigration Court’s jurisdiction over removal proceedings). The Government’s
motion for summary disposition (Docket No. 6) of that petition for review is
granted because the questions it raises are so insubstantial as not to require further
5
PETITION DENIED.
argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (stating
the standard). The motion for a stay of removal in petition no. 19-72883 (Docket
No. 1) is denied as moot.
6