Martinez-Arbe v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2024
• Docket: 23-3319
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MOSIAH ARTURO MARTINEZ- No. 23-3319 ARBE; MARIA ZOILA PEREGRINA Agency Nos. SANDOVAL-BARTRA; D.N.M.S.; A243-148-382 A.D.M.S.; B.M.M.S., A243-148-383 A243-148-384 Petitioners, A243-148-385 A243-148-386 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted November 21, 2024** Seattle, Washington

Before: MILLER, LEE, and H.A. THOMAS, Circuit Judges.

Mosiah Arturo Martinez-Arbe, Maria Zoila Peregrina Sandoval-Bartra, and

their minor children, D.N.M.S., A.D.M.S., and B.M.M.S.—natives and citizens 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). Peru—petition for review of a decision of the Board of Immigration Appeals

denying their applications for asylum and withholding of removal. We have

jurisdiction under 8 U.S.C. § 1252. We deny the petition.

Because the Board affirmed the decision of the immigration judge and

adopted his reasoning, citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A.

1994), we review both the Board’s decision and the immigration judge’s. Ruiz-

Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We review factual

findings for substantial evidence and legal questions de novo. Id.

1. The immigration judge did not violate petitioners’ due process rights by

declining to allow Elizabeth Peralta, Martinez-Arbe’s cousin—who was also his

attorney in Peru—to testify telephonically. Because immigration judges have

“discretion to limit testimony in order to ‘focus the proceedings and exclude

irrelevant evidence,’” such limits violate due process only when they “‘prevent[]

the introduction of significant testimony.’” Oshodi v. Holder, 729 F.3d 883, 890 &

n.9 (9th Cir. 2013) (en banc) (first quoting Kerciku v. INS, 314 F.3d 913, 918 (7th

Cir. 2003); and then quoting Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056

(9th Cir. 2005)).

Because Peralta’s testimony was largely duplicative, its exclusion did not

violate due process. She submitted a declaration, which the immigration judge

considered, and petitioners told the judge that she would “testify consistent with

2 23-3319 her declaration.” Her declaration described Martinez-Arbe’s testimony in Peruvian

court against members of the criminal gang that robbed him, those gang members’

sentences, the high crime rate in Peru, and her opinion that petitioners “in any

moment . . . could be victims of some attempt on their lives as retaliation.” Neither

petitioners’ motion to allow telephonic testimony nor Peralta’s own submitted

declaration suggested that the telephonic testimony, if allowed, would have

contributed new evidence.

Unlike in cases where we have determined that an immigration judge

violated due process by precluding testimony, the judge here neither prevented

Martinez-Arbe from testifying nor excluded witnesses who could have

corroborated parts of his testimony that the judge disbelieved. To the contrary, the

judge found Martinez-Arbe credible and took all of his factual assertions as true.

Cf. Oshodi, 729 F.3d at 891 (holding that the immigration judge violated due

process by refusing to hear the applicant’s “full testimony with respect to the

abuses he suffered in Nigeria” and denying relief based “solely on an adverse

credibility finding”); Lopez-Umanzor, 405 F.3d at 1054–58 (holding that the

immigration judge violated due process by finding the applicant not credible in her

account of her abusive relationship with the man she claimed posed a threat while

excluding testimony from domestic violence experts); Zolotukhin v. Gonzales, 417

F.3d 1073, 1075–76 (9th Cir. 2005) (holding that the immigration judge violated

3 23-3319 due process by not crediting applicant’s testimony about his religious affiliation

while excluding expert witnesses who could have corroborated that testimony);

Kaur v. Ashcroft, 388 F.3d 734, 736–37 (9th Cir. 2004) (holding that the

immigration judge violated due process by denying asylum in part due to the lack

of evidence corroborating the applicant’s account of events that caused her to leave

her country while refusing to hear testimony from the applicant’s son about those

events).

2. The Board’s denials of petitioners’ asylum and withholding of removal

claims were supported by substantial evidence. The immigration judge’s

conclusion that their fear of future persecution was not reasonable was supported

by the facts that: (1) no tangible harm had come to Martinez-Arbe or his family,

including while one of the gang members against whom he testified was out of

custody; (2) Peruvian hitmen, whom petitioners feared would be hired to harm

them, had been prevalent in the country since at least 2015; and (3) it was unclear

how recently threats to another victim of the same robbery were made. Although

petitioners argue that the immigration judge’s findings that they could reasonably

relocate within Peru and that the Peruvian government was not unable or unwilling

to protect them were erroneous, neither of those findings was dispositive. Because

the immigration judge concluded that “[a]ny future harm, based on the record, is

speculative,” those findings were merely additional grounds on which to deny the

4 23-3319 claims. See Hussain v. Rosen, 985 F.3d 634, 645–46 (9th Cir. 2021); Sharma v.

Garland, 9 F.4th 1052, 1060–61 (9th Cir. 2021); 8 C.F.R. § 1208.13(b)(2).

PETITION DENIED.

5 23-3319