Josefa Ramirez-Matias De Matia v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEFA RAMIREZ-MATIAS DE Nos. 17-73492
MATIAS, et al., 19-70208
Petitioner,
Agency Nos. A202-122-291
v. A202-122-292
A202-122-293
WILLIAM P. BARR, Attorney General,
Respondent. MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 9, 2020**
Seattle, Washington
Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOLTON,*** District
Judge.
Josefa Ramirez-Matias De Matias (“Ramirez-Matias”) and her two children,
Rene Matias-Ramirez (“Rene”) and Sergio Matias-Ramirez (“Sergio”)
*
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 Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
(collectively, “Petitioners”),1 natives and citizens of Guatemala, petition for review
of a Board of Immigration Appeals (“BIA”) order dismissing: (1) their appeal from
an Immigration Judge’s (“IJ”) decision denying their applications for asylum,
withholding of removal, and protection under CAT; and (2) Ramirez-Matias’s
incompetent translation due process claim. See 8 U.S.C. §§ 1158(b)(1)(A),
1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c), 1208.18. Ramirez-Matias also petitions for
review of the BIA’s denial of her motion to reconsider and terminate under Pereira
v. Sessions, 138 S. Ct. 2105 (2018), and requests that we reconsider our decision in
Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019).
Our jurisdiction is governed by 8 U.S.C. § 1252. When the BIA conducts its
own review of the evidence and the law, “our review ‘is limited to the BIA’s
decision, except to the extent the IJ’s opinion is expressly adopted.’” Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204
F.3d 985, 990 (9th Cir. 2000)). We review denials of asylum, withholding of
removal, CAT relief, and all purely factual findings for substantial evidence. Wang
v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). The BIA’s factual findings “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
1
Ramirez-Matias is the lead Petitioner. Rene’s and Sergio’s respective asylum
claims are derivative of her claim. See 8 U.S.C. § 1158(b)(3)(A). Petitioners filed
individual applications for Convention Against Torture (“CAT”) relief.
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the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review due process violations in
immigration proceedings de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791
(9th Cir. 2003). We review the BIA’s denial of a motion to reconsider for abuse of
discretion. Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir. 2015).
I. Asylum & Withholding of Removal
Substantial evidence supports the BIA’s determination that Ramirez-Matias
has failed to establish that she is a member of the particular social group that she
alleges. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). Ramirez-Matias argues that
she has a well-founded fear of persecution on account of her membership in a
particular social group consisting of married women in Guatemala who are unable
to leave their relationship. See Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA
2014), overruled by Matter of A-B-, 27 I. & N. Dec. 316, 319–20 (U.S. Atty. Gen.
2018) (acknowledging particular social group comprised of “married women in
Guatemala who are unable to leave their relationship” where applicant had shown
inability to leave marriage based on repeated coercive acts by husband).
Even assuming Ramirez-Matias’s proposed social group were cognizable,
Ramirez-Matias has not demonstrated that she was unable to leave her husband,
Santos Matias Ramirez-Matias (“Santos”). The BIA highlighted the following facts
supporting this conclusion. Santos left for the United States in 2000 and returned to
Guatemala in 2013; during that thirteen-year period, he contacted Ramirez-Matias
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once, in 2003. After Santos returned to Guatemala (for no more than two years), he
made no effort to meet with Ramirez-Matias. Finally, and most significantly given
Ramirez-Matias’s proposed social group, Santos informed Ramirez-Matias that if
she wanted a divorce, she would have to pay for it because he was going to “get
[himself] another woman.” We therefore agree with the BIA that Petitioners are
ineligible for asylum and withholding of removal.
II. CAT Protection
Substantial evidence supports the BIA’s conclusion that Petitioners have
failed to show that it is more likely than not that they would be tortured if returned
to Guatemala. See 8 C.F.R. § 1208.16(c)(2). While Petitioners have presented
evidence that they were whipped by members of a local patrol investigating the
murder of an elderly couple in Petitioners’ village, the harm was not so severe as to
rise to the level of torture. See 8 C.F.R. § 1208.18(a)(1) (limiting CAT relief to
torture “inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity”). We agree with the
BIA that Petitioners are ineligible for CAT protection.
III. Due Process Violation
We have long held that competent translation is fundamental to a full and
fair hearing. See He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003); Perez-Lastor v.
INS, 208 F.3d 773, 778 (9th Cir. 2000). To make out a due process violation based
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on incompetent translation, Ramirez-Matias “must demonstrate that a better
translation likely would have made a difference in the outcome.” Gutierrez-Chavez
v. INS, 298 F.3d 824, 830 (9th Cir. 2002). We have previously identified three
types of evidence which tend to prove incompetent translation: (1) direct evidence
of incorrectly translated words; (2) unresponsive answers by the witness; and (3)
the witness’s expression of difficulty understanding what is said to her. Siong v.
INS, 376 F.3d 1030, 1041 (9th Cir. 2004).
The BIA concluded that Ramirez-Matias failed to establish a due process
violation because she failed to show that a better translation would have made a
difference in the outcome. The BIA noted that “misunderstandings that arose
during the proceedings were clarified before [Ramirez-Matias] moved forward
with her testimony.” Further, on appeal, Ramirez-Matias failed to identify any
aspect of her claim that she was unable to present before the IJ as a result of
translation issues.
Ramirez-Matias, however, maintains that the IJ violated her due process
rights when he did not allow the case to be continued in order to secure an
interpreter who spoke her specific Mam dialect.2 According to Ramirez-Matias,
“many questions [] went unanswered” due to inadequate translation, and the IJ
2
The interpreter denied any difficulty on his part in understanding Ramirez-
Matias.
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relied on such “discrepancies” in finding that Ramirez-Matias failed to articulate
her fear of persecution by Santos. While Ramirez-Matias concedes that “[t]here is
no direct evidence of incorrectly translated words,” she insists that the transcript
reveals “multiple instances of unresponsive answers.”
Leaving aside the issue of whether Ramirez-Matias provided unresponsive
answers during the IJ hearing, she has failed to show that a better interpretation
would have made a difference in the outcome of the IJ hearing. The sole instance
of prejudice cited by Ramirez-Matias—that the IJ noted her unresponsiveness and
discrepancies between her oral testimony and written statement—does not actually
demonstrate prejudice. Cf. Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000)
(noting that petitioner explicitly stated in brief how incompetent translation
impeded testimonial explanation of key claims and conclusions from written
application). Indeed, the IJ found Ramirez-Matias to be credible and emphasized
that he did not use the “fairly significant” discrepancies against her. Cf. Perez-
Lastor, 208 F.3d at 781 (“We have previously recognized that an adverse
credibility finding may result from a faulty translation.”).
Nevertheless, Ramirez-Matias argues that the IJ’s “skepticism” of her
testimony is “obvious.” We disagree. It is clear from the hearing transcript, as well
as his oral decision and order, that the IJ behaved as a “neutral fact-finder
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interested in hearing [Ramirez-Matias]’s evidence.”3 Colmenar, 210 F.3d at 971.
We affirm the BIA’s ruling that Ramirez-Matias’s hearing satisfied due process.
IV. Karingithi v. Whitaker
The BIA did not abuse its discretion by denying Petitioners’ motion to
reconsider and terminate. Our decision in Karingithi forecloses Ramirez-Matias’s
argument that, under Pereira, the IJ lacked jurisdiction because her Notice to
Appear (“NTA”) lacked date and time information regarding her removal
proceedings. Karingithi, 913 F.3d at 1162. Still, Ramirez-Matias urges us to
reconsider our decision in Karingithi. We decline to do so. We are bound by that
decision in the absence of any clearly irreconcilable intervening higher authority.
See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc).
PETITION FOR REVIEW DENIED.
3
When asked at the conclusion of her direct examination if there was “anything
else that [she] want[ed] to tell the Court?” Ramirez-Matias responded, “there might
be some words that I didn’t know.” When pressed by the IJ to specify which words
she “didn’t know,” Ramirez-Matias only said “[m]aybe there’s some words that I
didn’t remember. I don’t remember.” See Perez-Lastor, 208 F.3d at 782 (“Finally,
we recognize that, as a practical matter, an IJ may ameliorate the damage caused
by an incompetent translation by asking for ‘[c]larification or repetition.’”).
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