Saetern v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 2023
• Docket: 22-1577
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KHAE MOUANG SAETERN, No. 22-1577 Agency No. Petitioner, A072-589-580 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 5, 2023** Honolulu, Hawaii

Before: BERZON, MILLER, and VANDYKE, Circuit Judges.

Khae Mouang Saetern petitions for review of a decision of the Board of

Immigration Appeals affirming an immigration judge’s denial of her applications

for cancellation of removal, withholding of removal, asylum, and protection under

* 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).

1 the Convention Against Torture (CAT). We dismiss the petition in part and deny it

in part.

1. Saetern does not challenge the agency’s denial of withholding of removal,

asylum, or CAT relief. She instead argues that the agency erred in denying

cancellation of removal. We lack jurisdiction to review the discretionary denial of

cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Garland, 142 S. Ct.

1614, 1618 (2022); Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).

We therefore dismiss the petition in relevant part.

2. Saetern also argues that the Board erred in affirming the immigration

judge’s denial of her motion to permit telephonic testimony from her mother and

sister. This argument raises a procedural due process challenge, which we have

jurisdiction to consider under 8 U.S.C. § 1252(a)(2)(D).

An immigration judge can violate due process by preventing the introduction

of “significant testimony.” Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056–57

(9th Cir. 2005). We will set aside the Board’s “decision on due process grounds

only if the underlying . . . proceeding was ‘so fundamentally unfair that the alien

was prevented from reasonably presenting [her] case.’” Rizo v. Lynch, 810 F.3d

688, 693 (9th Cir. 2016) (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th

Cir. 1986)). “Even if a removal hearing was conducted in a fundamentally unfair

manner, a ‘petitioner must show prejudice, which means that the outcome of the

2 22-1577 proceeding may have been affected by the alleged violation.’” Id. (quoting

Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005)).

Although the immigration judge did not permit telephonic testimony from

Saetern’s mother or sister, Saetern was allowed to submit declarations from each

potential witness regarding her family circumstances and the potential hardships

they might face if she were removed. Saetern has not explained what information

her mother and sister could have provided at the hearing that would not have been

cumulative of the evidence in the record. So, even assuming that the immigration

judge’s exclusion of the telephonic testimony was a procedural due process

violation, Saetern has not shown prejudice. We therefore deny this portion of the

petition.

3. Saetern also argues that the Board erred in finding that she is a native and

citizen of Thailand. If her argument is that the Board’s alleged misidentification of

her native country tainted its discretionary denial of cancellation of removal, we

lack jurisdiction to consider that argument. 8 U.S.C. § 1252(a)(2)(B)(i); Patel, 142

S. Ct. at 1627.

To the extent that Saetern challenges the Board’s designation of Thailand as

the country of removal, substantial evidence supports the Board’s finding. Saetern,

through counsel, admitted she is a native and resident of Thailand. Based on the

record before the agency, a reasonable adjudicator would not be compelled to

3 22-1577 conclude that Saetern is not a native and citizen of Thailand. See 8 U.S.C.

§ 1252(b)(4)(B). We deny this part of the petition.

The motion to stay removal (Dkt. No. 6) is denied.

PETITION DISMISSED in part and DENIED in part.

4 22-1577