Dailiuva Gonzalez-Garcia v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAILIUVA GONZALEZ-GARCIA, No. 19-72859
Petitioner, Agency No. A215-870-633
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 15, 2021
San Francisco, California
Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit
Judges.
Petitioner Dailiuva Gonzalez-Garcia, a citizen of Cuba, seeks review of the
Board of Immigration Appeals’s (BIA) order dismissing her appeal from the
Immigration Judge’s (IJ) denial of her applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). We review the
BIA’s legal conclusions de novo and the factual findings underlying the BIA’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
decision for substantial evidence. Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir.
2020). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Gonzalez-Garcia argues that the BIA erred by not liberally construing
her pro se pleadings as challenging the IJ’s adverse credibility finding. We do not
address whether the liberal-construction rule applies in this context because even
assuming that it does, Gonzalez-Garcia’s Notice of Appeal cannot be construed as
raising even a general challenge to the IJ’s adverse credibility determination. See
Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014). Because the BIA lacked
notice that Gonzalez-Garcia challenged the IJ’s credibility finding, it did not err in
concluding that she forfeited any challenge to that finding. See id.1
2. Gonzalez-Garcia also argues that the BIA violated her due process
rights by dismissing her pro se appeal on grounds of forfeiture. We disagree.
Contrary to her assertion otherwise, the agency did not fail to notify her about the
risk of forfeiture. In its written instructions and forms, the agency warned Gonzalez-
Garcia that failing to specify the bases for any appeal to the BIA could result in
dismissal. Moreover, Gonzalez-Garcia gave the BIA no reason to assume that she
did not understand its instructions; indeed, she wrote her appeal in English and
1
This court has not determined the correct standard of review to apply to the
BIA’s forfeiture determination. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th
Cir. 2019) (per curiam). We need not resolve this issue here because even reviewed
de novo, the BIA correctly found that Gonzalez-Garcia failed to challenge the IJ’s
credibility finding.
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indicated that she had “[r]ead all of the General Instructions.” See Khan v. Ashcroft,
374 F.3d 825, 828–29 (9th Cir. 2004). Gonzalez-Garcia therefore has not shown that
the BIA denied her a full and fair hearing or a reasonable opportunity to present her
case. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
3. The BIA did not err in affirming the IJ’s denial of relief under the CAT.
Gonzalez-Garcia has not shown that the BIA failed to consider all evidence relevant
to her CAT claim. See Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). Absent
credible testimony, Gonzalez-Garcia’s CAT claim rests on country condition reports
and a declaration from her partner. See Yali Wang v. Sessions, 861 F.3d 1003, 1009
(9th Cir. 2017). But this evidence fails to “meet the high threshold of establishing
that it is more likely than not that [she] will be tortured by or with the consent or
acquiescence of a public official.” Mukulumbutu v. Barr, 977 F.3d 924, 927 (9th Cir.
2020).
PETITION FOR REVIEW DENIED.
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