Maria Cadenas Sanchez v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA DE LOURDES CADENAS No. 20-70567 SANCHEZ; JOSE GUADALUPE GOBEA CADENAS; ABIGAIL GOBEA Agency Nos. A209-167-366 CADENAS, A209-167-367 A209-167-368 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 7, 2021** Seattle, Washington

Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.

Maria de Lourdes Cadenas Sanchez and two of her children petition for

review of a Board of Immigration Appeals (BIA) order upholding the denial of

* 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). Page 2 of 3

their applications for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). Because the children’s applications are

derivative, we focus here on the claims asserted by the principal applicant,

Cadenas Sanchez. We deny the petition for review.

1. The BIA correctly rejected Cadenas Sanchez’s argument that the

immigration judge (IJ) violated her due process right to a full and fair hearing.

Contrary to Cadenas Sanchez’s contention in her briefs on appeal, she was in fact

required to establish prejudice in order to prevail on her due process claim. See

Oshodi v. Holder, 729 F.3d 883, 896–97 (9th Cir. 2013) (en banc); Colmenar v.

INS, 210 F.3d 967, 971–72 (9th Cir. 2000). It is true that, to show prejudice, a

petitioner need not “explain exactly what evidence [she] would have presented” in

the absence of the alleged due process violation. Colmenar, 210 F.3d at 972. But

a petitioner must provide some basis for concluding that “the IJ’s conduct

potentially [affected] the outcome of the proceedings.” Id. (internal quotation

marks omitted). Cadenas Sanchez has not provided any basis for reaching such a

conclusion here. To take just one example, she faults the IJ for failing to more

fully develop the record as to nexus, but the BIA upheld the denial of her asylum

and withholding claims on a completely independent ground—her failure to

establish past persecution or a well-founded fear of future persecution. The IJ’s Page 3 of 3

alleged failure to more fully develop the record as to nexus thus could not have

affected the outcome of her proceedings.

2. Substantial evidence supports the BIA’s conclusion that Cadenas Sanchez

failed to meet her burden for obtaining asylum, withholding of removal, or

protection under CAT. Her asylum and withholding claims were predicated

primarily on her husband’s verbal and emotional abuse, but because her husband

never injured her, the BIA permissibly concluded that the harm she suffered did

not amount to past persecution or give rise to a well-founded fear of future

persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). As to

Cadenas Sanchez’s CAT claim, the BIA properly concluded that she failed to

establish she would likely face torture if returned to Mexico. See 8 C.F.R.

§ 1208.16(c)(2). The BIA also properly rejected her claim that the IJ failed to

consider all of the country conditions evidence.

PETITION FOR REVIEW DENIED.