Yeleuis Anazco Isturiz v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YELEUIS YAJAIRA ANAZCO ISTURIZ, No. 19-73242
Petitioner, Agency No. A213-084-677
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 10, 2021**
Pasadena, California
Before: BYBEE and BRESS, Circuit Judges, and CARDONE,*** District Judge.
Yeleuis Yajaira Anazco Isturiz (Petitioner), a citizen of Venezuela, petitions
for review of the Board of Immigration Appeals (BIA) order denying her
*
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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
immigration relief.1 We have jurisdiction under 8 U.S.C. § 1252. We review de
novo allegations of due process violations in immigration proceedings. Jiang v.
Holder, 754 F.3d 733, 738 (9th Cir. 2014). In addition, we review adverse
credibility findings for substantial evidence, and reversal is warranted only if “the
evidence not only supports a contrary conclusion, but compels it.” Silva-Pereira v.
Lynch, 827 F.3d 1176, 1184–85 (9th Cir. 2016) (quoting Huang v. Holder, 744
F.3d 1149, 1152 (9th Cir. 2014)). We deny the petition for review.
1. The Immigration Judge (IJ) did not violate Petitioner’s due process rights by
allowing the government to introduce her sworn statement from her border
interview.
Petitioner acknowledges that her sworn statement was submitted to the IJ at
a December 13, 2017 master calendar hearing, which was attended by both
Petitioner and her counsel, and occurred nearly three months before her March 8,
2018 merits hearing. Petitioner therefore had a reasonable opportunity to review
her sworn statement, and the entry of this evidence was not fundamentally unfair
for lack of notice. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681
(9th Cir. 2005); Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009).
Additionally, the Executive Office of Immigration Review certified and
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Petitioner did not challenge the BIA’s denial of her application for protection
under the Convention Against Torture.
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authenticated the I-867A form which contained Petitioner’s sworn statement. The
information contained in this document is therefore “presumed to be reliable in the
absence of evidence to the contrary presented by the alien.” Espinoza v. I.N.S., 45
F.3d 308, 310 (9th Cir. 1995). Because Petitioner failed to point to probative
evidence contradicting this authenticated I-867A, the IJ was “not required to
permit cross-examination of the form’s preparer” at Petitioner’s merits hearing.
See id. at 311.
2. Petitioner contends that her sworn statement should have been suppressed as
unreliable. But border interview records with sufficient indicia of reliability can
support adverse credibility findings. Mukulumbutu v. Barr, 977 F.3d 924, 926 (9th
Cir. 2020) (citations omitted). The border interview during which Petitioner
dictated the sworn statement, in the form of questions and answers, was taken
under oath and with the assistance of a Spanish-language interpreter. As such,
Petitioner’s statement carries sufficient indicia of reliability, and the IJ could
properly consider the statement when he made his adverse credibility finding. See
id.
3. Petitioner next argues that the BIA erroneously relied on Kotasz v. INS, 31
F.3d 847, 850 n.2 (9th Cir. 1994) in rejecting her claim that translation errors
tainted her credible fear interview. However, like the asylum seekers in Kotasz,
Petitioner failed to identify any words or phrases that were allegedly mistranslated
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in her credible fear interview. See 31 F.3d at 850 n.2. Likewise, there is no
evidence that Petitioner was deprived of a fair opportunity to relay her version of
events during her credible fear interview—the transcript does not indicate that
Petitioner or her interpreters misunderstood each other, and Petitioner confirmed
that the asylum officer’s interview summary was correct. See id. As a result, the
BIA properly relied on Kotasz in rejecting Petitioner’s mistranslation argument.
See id. (explaining that, to set out a due process violation based on translation
error, the “alien must show that a better translation would have made a difference
in the outcome of the [proceedings]”).
4. Petitioner next maintains that the BIA improperly affirmed the IJ’s finding
that Petitioner was not credible because her claim for immigration relief materially
evolved between her border interview and merits hearing. However, the IJ set out
four “specific cogent reason[s] for [his] adverse credibility finding,” Shrestha v.
Holder, 590 F.3d 1034, 1042 (9th Cir. 2010), each of which was based upon facts
in the record. And the BIA may adopt the IJ’s decisions as its own, which it did
here. See Alaelua v. I.N.S., 45 F.3d 1379, 1382 (9th Cir. 1995). Thus, Petitioner
has not set out a basis for reversal.
Petitioner nonetheless claims that her immigration case merely suffered from
so-called “irregularities” in her statements, such that she never offered a “different
or more compelling story” at various stages of her immigration case. But contrary
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to Petitioner’s assertions, her inconsistent statements all went to the heart of her
claim since she “went from having no fear to having a fear of primarily []
[criminals] to having fear due to her political activism.” See Zamanov v. Holder,
649 F.3d 969, 973–74 (9th Cir. 2011). Petitioner’s material alteration of her
account of persecution in Venezuela is “sufficient to support an adverse credibility
finding.” See Zamanov, 649 F.3d at 973; accord Silva-Pereira, 827 F.3d at 1184.
Substantial evidence supports the IJ’s finding that Petitioner’s documentary
evidence did not save her asylum and withholding of removal claims. The death
certificates for Jorge Felix Isturiz and Yordi Alexander Hernandez Isturiz merely
indicate that the former died from a gunshot wound caused by an individual named
Elsa Rivas, while the latter died from a gunshot wound that was inflicted by an
unknown person. The record contains no evidence of these three individuals’
political activities, and Petitioner herself stated that these two relatives died
because of random criminal activity. As a result, the record does not compel a
conclusion contrary to the one reached by the BIA. See Silva-Pereira, 827 F.3d at
1184.
5. Petitioner argues that she is eligible for asylum and withholding of removal
because she has shown the required nexus between her alleged anti-governmental
political activities and the harm that she and her family suffered while they were
living in Venezuela.
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But, absent her discredited testimony, Petitioner offered no evidence that she
is a member of any anti-governmental political organization in Venezuela. Nor did
Petitioner submit evidence that she, or anyone in her family, was the victim of a
politically motivated crime in Venezuela. As such, Petitioner did not establish a
nexus between a protected ground and harm in Venezuela. See Santos-Ponce v.
Wilkinson, 987 F.3d 886, 890–91 (9th Cir. 2021).
6. Petitioner contends that both the IJ and BIA erred by not considering her
country conditions evidence.
This point is unavailing as the IJ considered Petitioner’s country conditions
evidence with respect to each of her claims for immigration relief. And, while the
BIA did not consider Petitioner’s country conditions evidence, this was not error.
Petitioner did not mention her country conditions evidence in her brief at the BIA,
so she failed to exhaust her administrative remedies with respect to this issue and
we cannot review unexhausted claims. See Alvarado v. Holder, 759 F.3d 1121,
1127–28 (9th Cir. 2014).
7. Petitioner finally submits an Equal Protection Clause argument comprised of
a single sentence unaccompanied by citations to the record. Such undeveloped
arguments are waived and we need not address them. See Cal. v. Azar, 911 F.3d
558, 573 n.1 (9th Cir. 2018).
PETITION DENIED.
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