Jeronimo Gomez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2023
• Docket: 22-312
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Simeona Jeronimo Gomez, No. 22-312

Petitioner, Agency No. A208-302-541

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 18, 2023** Portland, Oregon

Before: RAWLINSON, BEA, SUNG, Circuit Judges.

1. Simeona Jeronimo Gomez (“Petitioner”), a native and citizen of

Guatemala, petitions this court to review the Board of Immigration Appeals’s

(“BIA”) decision. The BIA affirmed the Immigration Judge’s (“IJ”) order

denying her applications for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). We have jurisdiction under 8

* 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). U.S.C. § 1252. We deny the petition.

2. The parties are familiar with the facts of the case, so we do not recite

them here. Given the BIA adopted and affirmed the IJ’s decision, we review the

IJ’s determinations, as if they were the BIA’s, as well as the BIA’s own

supplemental analysis. Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013).

We review factual determinations under the substantial evidence standard. 8

U.S.C. § 1252(b)(4)(B). We review legal conclusions, including the BIA’s due

process determinations, de novo. Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir.

2008).

3. The agency did not improperly deprive Petitioner of her right to counsel.

Aliens have a statutory right to retain counsel at their own expense in immigration

proceedings. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). But there is no

due process violation when the “IJ provide[s] the petitioner with reasonable time

to locate counsel” and the record reveals that further continuances “would have

been futile.” Id. at 1158 (cleaned up). Nearly three and a half years elapsed

between the IJ’s giving Petitioner a list of low-cost attorneys for her to seek out

counsel and her merits hearing. And the IJ granted three separate continuances

for Petitioner to prepare her case. Given this reasonable length of time and

Petitioner’s failure to identify how an additional continuance would permit her to

retain an attorney when her previous efforts failed, we conclude that Petitioner’s

due process rights were not violated by her pro se status during the merits hearing.

4. Petitioner next argues that her due process rights were violated because

2 22-312 the IJ failed adequately to explain the immigration procedures to her and because

the IJ did not adequately develop the record. Neither contention has merit.

Aliens have a statutory right to present evidence on their behalf and to

examine the evidence against them. 8 U.S.C. § 1229a(b)(4)(B). But even pro se

aliens “are not entitled to the IJ’s legal assistance,” so long as the IJ ensures the

alien “understood and had the opportunity to access all manner of procedural

assistance” to present his case. Hussain v. Rosen, 985 F.3d 634, 642 (9th Cir.

2021) (cleaned up). The IJ informed Petitioner of the procedures that would

follow once she filed an asylum application. The IJ told Petitioner that she should

inform the attorneys she contacted what occurred “in Guatemala that made [her]

afraid to stay there and ma[de] [her] afraid to go back.” The IJ informed

Petitioner of the consequences of filing a knowingly false application and detailed

the evidence Petitioner could present on her behalf. Petitioner expressly

acknowledged that she understood what the process involved. Given the IJ’s

explanation and Petitioner’s acknowledgement that she understood what she had

been told, Petitioner’s contention that the IJ’s explanation of the immigration

proceedings was inadequate fails to constitute a due process violation. Id. at 643

(finding no due process violation when the “IJ explained Hussain’s statutory

rights, detailed the court procedures, and ensured Hussain had the opportunity to

procure a lawyer if he wanted one”).

Similarly, while an IJ is responsible for developing the record, due process

does not require the IJ to ascertain all possible evidence “that might lend support”

3 22-312 to the alien’s claims, as an advocate would be expected to do. Id. The IJ

adequately developed the record here. The IJ began with broad questions so

Petitioner could direct the conversation and detail the basis for her claims. The

IJ followed up on Petitioner’s assertion that her fear of returning to Guatemala

stems from her uncle’s threatening behavior, but Petitioner twice stated she did

not know her uncle’s motivations. And when the IJ explained that he may have

missed aspects of Petitioner’s testimony and that she was free to add more details,

Petitioner informed the IJ that there was nothing else she wanted to share. This

record demonstrates the IJ adequately developed the record. Given there was

“nothing [that] alerted the IJ that more questioning was required to probe for facts

relating to” Petitioner’s religion, the IJ did not violate Petitioner’s due process

rights by not asking additional questions. Zamorano v. Garland, 2 F.4th 1213,

1227 (9th Cir. 2021); accord Hussain, 985 F.3d at 643–45.

5. Finally, Petitioner contends that her due process rights were violated

because she received inadequate translation services at her merits hearing. This

argument lacks merit. Although she argues that there was direct evidence of

mistranslations, Petitioner fails to identify specific instances in the record that

reveal such mistakes. Petitioner’s general objection is insufficient to satisfy her

burden of proving that the alleged mistranslations affected the fairness of the

proceedings below. Singh v. Ashcroft, 367 F.3d 1139, 1143–44 (9th Cir. 2004).

Petitioner’s contention that incompetent translations prevented her from fully

understanding the proceedings is also belied by the record. On several occasions,

4 22-312 Petitioner noted that she understood the IJ. And the record reveals that the

interpreters expressly stated that they comprehended each other as well as the

information that was being discussed by Petitioner and the IJ. Given Petitioner’s

acknowledgements that she understood the interpreter and the information

conveyed by the IJ, Petitioner has failed to show prejudice, which means that her

due process rights were not violated.

PETITION DENIED.1

1 Petitioner has forfeited any argument on appeal regarding the merits of her asylum, withholding of removal, and CAT claims because she did not raise them in her opening brief. Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011), overruled in part on other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc).

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