Ismelda Soriano Ruiz v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISMELDA PATRICIA SORIANO RUIZ; et No. 19-71349
al.,
Agency Nos. A202-097-278
Petitioners, A202-097-279
A202-097-280
v.
ROBERT M. WILKINSON, Acting MEMORANDUM*
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 1, 2021**
Pasadena, California
Before: GRABER, MILLER, and LEE, Circuit Judges.
Petitioners Ismelda Soriano Ruiz and her two minor children, natives and
citizens of Guatemala, petition for review of an order of the Board of Immigration
Appeals affirming the denial of their applications for asylum and 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. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the petition.
1. Our precedent forecloses the argument that the immigration judge
lacked jurisdiction because the notices to appear did not specify the time and place
of the hearing. “[T]he jurisdiction of the immigration court vests upon the filing of
an NTA, even one that does not at that time inform the alien of the time, date, and
location of the hearing.” United States v. Bastide-Hernandez, 986 F.3d 1245, 1248
(9th Cir. 2021).
2. Soriano Ruiz’s placement in standard removal proceedings without a
credible-fear interview did not violate due process. “The government has discretion
to place noncitizens in standard removal proceedings even if the expedited removal
statute could be applied to them.” Flores v. Barr, 934 F.3d 910, 916 (9th Cir.
2019). And because Soriano Ruiz was “given a full and fair opportunity to be
represented by counsel, to prepare an application for . . . relief, and to present
testimony and other evidence in support of the application,” she received all that
due process requires. Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926–27 (9th
Cir. 2007). In any event, Soriano Ruiz cannot show prejudice. See id. at 926. If
Soriano Ruiz had been given a credible-fear interview and found credible, she
would have received “full consideration” of her claims in a standard removal
hearing—the very process she received from the outset by bypassing the agency’s
expedited removal procedures. See DHS v. Thuraissigiam, 140 S. Ct. 1959, 1964–
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66 (2020) (citation omitted).
Nor did the immigration judge lack jurisdiction under 8 C.F.R. § 208.2.
Section 208.2(b) provides that an immigration judge “shall have exclusive
jurisdiction over asylum applications filed by an alien who has been served a . . .
Form I-862, Notice to Appear,” with which Soriano Ruiz and her children were
served.
3. Soriano Ruiz claims that the immigration judge abused his discretion
by denying a continuance to consolidate her and her children’s cases with that of
her husband, Francis Rivera. In assessing whether the immigration judge abused
his discretion, we consider “(1) the nature of the evidence excluded as a result of
the denial of the continuance, (2) the reasonableness of the immigrant’s conduct,
(3) the inconvenience to the court, and (4) the number of continuances previously
granted.” Hui Ran Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019) (quoting
Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)).
Soriano Ruiz has not explained why her case should have been consolidated
with Rivera’s. As the immigration judge noted, the facts underlying their claims
for relief are entirely different. Rivera came to the United States fleeing gang
violence. By contrast, Soriano Ruiz and her children fled Guatemala years later to
escape domestic violence perpetrated by Soriano Ruiz’s then domestic partner,
Alonzo; when they left, they did not even know that Rivera was in the United
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States. Soriano Ruiz did not marry Rivera until she had been living in the United
States for almost two years—almost a year after she filed her Form I-589. In any
event, although the immigration judge declined to formally consolidate Soriano
Ruiz’s case with Rivera’s, their hearings were held together. We also note that
Soriano Ruiz and her children’s cases had previously been continued at their
request. The immigration judge did not abuse his discretion in denying another
continuance. See Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011).
4. Finally, Soriano Ruiz argues that the agency’s adverse credibility
determination is not supported by substantial evidence. An immigration judge may
enter an adverse credibility determination based on the totality of the
circumstances, including inconsistencies in an applicant’s testimony, so long as he
“provide[s] specific and cogent reasons” based on “specific instances in the
record” and provides an opportunity for the applicant to explain the inconsistency.
Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (citation omitted). An
inconsistency need not “go to the heart” of a petitioner’s claim, but such
inconsistencies are “of great weight.” Id. at 1043, 1047.
The Board identified multiple inconsistencies in affirming the immigration
judge’s adverse credibility determination. In her declaration, Soriano Ruiz claimed
that Alonzo did not physically abuse her while she was pregnant, but at her
hearing, she testified that he did. When asked about the discrepancy, Soriano Ruiz
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said she was “nervous” and “didn’t know what [she] said.” After further attempts
to clarify the discrepancy, she was unable to provide an explanation. Soriano Ruiz
also admitted that she lied when she testified that she received no assistance in
coming to the United States. And when she was asked about an inconsistency
between her declaration and her testimony concerning who knew of her abuse,
Soriano Ruiz admitted that her testimony “wasn’t true.” These inconsistencies
constitute substantial evidence for the agency’s adverse credibility determination.
Soriano Ruiz argues that the agency did not adequately consider
psychological evidence that could have explained her inconsistent testimony. But
in light of her testimony that she was “feeling better” after regular visits with a
psychologist, the Board’s determination that this evidence could not “overcome the
Immigration Judge’s credibility concerns in the totality of the circumstances” is
supported by substantial evidence.
PETITION DENIED.
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