Marisol Aguilar v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARISOL NAVARRO AGUILAR, AKA No. 19-70749
Rosa Marie Navarro,
Agency No. A077-408-946
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 15, 2023**
San Francisco, California
Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,*** District
Judge.
Petitioner Marisol Navarro Aguilar, a native and citizen of Mexico, petitions
*
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).
***
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her
application for withholding of removal based on an adverse credibility
determination. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the
petition.
1. The agency’s adverse credibility determination is reviewed for
substantial evidence, “[t]aking the totality of the circumstances into account.”
Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir. 2021). We may only reverse if
the record evidence compels the conclusion that Aguilar was credible. See, e.g.,
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see also Shrestha v. Holder,
590 F.3d 1034, 1041–44 (9th Cir. 2010). Aguilar therefore bears “a substantial
burden” to show the BIA’s denial of relief on adverse credibility grounds should be
reversed. Li v. Garland, 13 F.4th 954, 959 (9th Cir. 2021).
To the extent Aguilar argues that the BIA erred in affirming the adverse
credibility determination because it relied on inconsistencies in her testimony
concerning the nature and extent of abuse Aguilar suffered from her former
partner, the BIA explicitly noted that it did “not rely upon” Aguilar’s failure to
describe the abuse during her reasonable fear interview in affirming the
Immigration Judge’s (“IJ”) adverse credibility determination.
Aguilar does not otherwise contest that the agency’s adverse credibility
determination was based on significant discrepancies in the narrative underlying
2
her asylum claim. Instead, for the first time on appeal, she contends that her
reasonable fear interview, her asylum application, and an untranslated declaration
appended to her asylum application are unreliable and therefore cannot form the
basis of an adverse credibility determination. It appears that these arguments were
not exhausted before the BIA, but even if they were, the materials are not
inherently unreliable and could serve as a basis for the agency’s adverse credibility
determination. And because there is no argument the adverse credibility
determination is not supported by substantial evidence, we deny the petition on this
ground.
2. Claims of due process violations in immigration proceedings are
reviewed de novo, and the agency’s decision will be reversed on due process
grounds only if “(1) the proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case, and (2) the alien demonstrates
prejudice, which means that the outcome of the proceeding may have been affected
by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th
Cir. 2006) (internal quotation marks and citations omitted).
Aguilar raises two due process challenges. First, she contends the IJ
violated her due process rights when it denied a continuance so Aguilar’s expert
witness could testify regarding the potential harm Aguilar would face if forced to
return to Mexico. But as the BIA rightly noted, the testimony Aguilar sought from
3
her expert “would not change the ultimate conclusion” that she was not credible,
and therefore the IJ’s denial of the requested continuance could not have affected
the outcome of the proceedings. Aguilar therefore fails to show she suffered
prejudice as a result of this alleged due process violation. See id.Second, Aguilar contends her due process rights were violated when the IJ
failed to issue a ruling on her request for subpoenas ad testificandum. The IJ,
however, declined to issue the subpoenas because Aguilar failed “to show
affirmatively that . . . she ha[d] made diligent effort, without success,” to produce
the witnesses without resort to a subpoena as required by 8 C.F.R. § 1003.35(b).
The IJ gave Aguilar an opportunity to submit requests including this information,
but Aguilar failed to do so. Because the IJ’s refusal to issue the requested
subpoenas was in accordance with the regulations, Aguilar’s second due process
claim also fails.
PETITION FOR REVIEW DENIED.
4