Damaris Pineda Pineda v. Jefferson B. Sessions, III

United States Court of Appeals
For the Eighth Circuit
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No. 17-1799
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Damaris Yeneseika Pineda Pineda; Allison Noamy Segura-Pineda
lllllllllllllllllllllPetitioners
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: May 17, 2018
Filed: July 13, 2018
[Unpublished]
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Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Guatemalan citizens Damaris Pineda Pineda and her daughter Allison Segura-
Pineda (collectively, the Pinedas) petition for review of the Board of Immigration
Appeals’s (BIA) dismissal of their administrative appeal in which they alleged a
violation of their due process rights. We deny their petition for review.
I. Background
The Pinedas entered the United States without valid entry documents in May
2014. When removal proceedings were initiated against them, they admitted they
were removable, but applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT).1 At the administrative hearing, Damaris testified
about her political affiliations and extensive experience campaigning for various local
Guatemalan officials. During Damaris’s testimony, the immigration judge interrupted
her to ask, “When are we going to get to the persecution in this case? We’ve been at
this for about an hour and a half now and we haven’t once talked about anything bad
happening to [Damaris]. . . . [L]et’s get to it.”
Damaris then testified that Roberto Garcia Pineda, for whom she had
campaigned previously, asked her to work on another campaign for him, but she
declined. She claimed that Garcia Pineda threatened to kill her at gunpoint, that his
associates started extorting money from her and shooting at her house at night, and
that, three and a half years later, she and Allison fled to the United States. The
government then cross-examined Damaris, the immigration judge questioned her, and
she provided additional testimony on redirect.
The immigration judge denied asylum, withholding of removal, and CAT relief,
finding Damaris’s testimony not credible after identifying several inconsistencies.
The Pinedas appealed to the BIA, arguing that the immigration judge had violated
their due process rights by limiting Damaris’s hearing testimony. More specifically,
they contended that the immigration judge had started the hearing more than an hour
after it was scheduled to begin, “rushed the proceeding by directing [their] counsel
to jump ahead in the testimony,” and thereby “excessively limited key facts and
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Allison’s asylum claim is derivative of Damaris’s.
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testimony.” The BIA dismissed the appeal, reasoning that the immigration judge’s
“overall conduct and questioning was within proper judicial bounds.”
II. Discussion
“In removal proceedings, the Due Process Clause entitles an alien to a fair
hearing.” Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir. 2007). “To
establish a due process violation in a removal hearing, an alien must demonstrate both
a fundamental procedural error and prejudice.” Alva-Arellano v. Lynch, 811 F.3d
1064, 1066 (8th Cir. 2016). We review due process claims in immigration
proceedings de novo. Zacarias-Velasquez, 509 F.3d at 435. “We review the BIA’s
decision, as it is the final agency decision; however, to the extent that the BIA
adopted the findings or the reasoning of the [immigration judge], we also review the
[immigration judge’s] decision as part of the final agency decision.” Mayemba v.
Holder, 776 F.3d 542, 544 (8th Cir. 2015) (quoting Davila-Mejia v. Mukasey, 531
F.3d 624, 627 (8th Cir. 2008)).
First, the Pinedas have not shown a fundamental procedural error. “For a
removal hearing to be fair, the arbiter presiding over the hearing must be neutral and
the immigrant must be given the opportunity to fairly present evidence, offer
arguments, and develop the record.” Zacarias-Velasquez, 509 F.3d at 434 (cleaned
up); see also 8 U.S.C. § 1229a(b)(4)(B) (in a removal hearing, “the alien shall have
a reasonable opportunity . . . to present evidence on the alien’s own behalf”). But,
“[i]mmigration judges have broad discretion to control the manner of interrogation
to get at the truth.” Shoaira v. Ashcroft, 377 F.3d 837, 843 (8th Cir. 2004); see also
8 C.F.R. § 1240.1(c) (in removal proceedings, immigration judges “shall receive and
consider material and relevant evidence, rule upon objections, and otherwise regulate
the course of the hearing”). After the immigration judge instructed her to “get to” the
topic of persecution, Damaris continued to testify on direct, the government then
cross-examined her, the immigration judge questioned her, and she provided further
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testimony on redirect. The Pinedas had a full and fair opportunity to present evidence
in support of their claims at their administrative hearing.
Moreover, the Pinedas have not shown that they were prejudiced by any
limitations the immigration judge may have placed on Damaris’s testimony. “In this
context, prejudice means a showing that the outcome of the proceeding might well
have been different had there not been any procedural irregularities.” Tun v.
Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007). “This standard does not require
petitioners to show by a preponderance that, but for the procedural infirmities, the
result of the proceedings would have been different. Rather, petitioners must
demonstrate an error that potentially affects the outcome or had the potential for
affecting the outcome.” Id. (cleaned up). The Pinedas have not identified any
evidence they were prevented from submitting that might have affected the outcome
of their cases. In their view, the immigration judge prevented Damaris from coming
across as a credible witness and from providing additional details about their flight
to the United States. But they have not shown how this additional testimony might
have explained, or otherwise overcome, the inconsistencies between the record
documents and the testimony Damaris did give. In short, they have not identified any
evidence that might have bolstered Damaris’s credibility notwithstanding the
shortcomings in her testimony.
III. Conclusion
Accordingly, the petition for review is denied.
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