Virves-Andres v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 27, 2024
• Docket: 23-1804
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 27 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CATARINA VIRVES-ANDRES, et al., No. 23-1804 Agency Nos. Petitioners, A208-920-854 A208-920-855 v. A208-920-856 A208-920-857 MERRICK B. GARLAND, Attorney A208-920-858 General, A208-122-020 Respondent. MEMORANDUM*

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

Submitted November 8, 2024** Pasadena, California

Before: PARKER,*** HURWITZ, and DESAI, Circuit Judges.

Catarina Virves-Andres, her husband, and their four children, all natives and

* 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). *** The Honorable Barrington D. Parker, United States Circuit Judge for the Court of Appeals, Second Circuit, sitting by designation. citizens of Guatemala, petition for review of a Board of Immigration Appeals

(“BIA”) decision dismissing an appeal of an order by an immigration judge (“IJ”)

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

the Convention Against Torture (“CAT”). Virves-Andres alleges that the

parishioners of her Catholic Church persecuted her and her family after they

converted from Catholicism to Evangelical Christianity.

At Virves-Andres’s hearing, the IJ expressed skepticism about her claims. The

IJ questioned her testimony about the hierarchy of her Catholic Church and her

failure to report the parishioners’ threats to the priest. Although the IJ found Virves-

Andres not credible, he reached the merits of her claims before denying them. The

BIA dismissed her appeal.

We have jurisdiction under 8 U.S.C. § 1252. We review due process

challenges de novo, Benedicto v. Garland, 12 F.4th 1049, 1058 (9th Cir. 2021), and

the denial of asylum, withholding of removal, and CAT protection for substantial

evidence, Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny

the petition.

1. The BIA did not err in denying Virves-Andres’s due process claim

based on the conduct of the IJ at her hearing. To prevail on a due process claim, a

petitioner must demonstrate that (1) “the proceeding was so fundamentally unfair

that [she] was prevented from reasonably presenting [her] case,” and (2) she suffered

2 23-1804 prejudice because “the outcome of the proceeding may have been affected by the

alleged violation.” Zetino v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010) (cleaned

up). Virves-Andres argues that the IJ abandoned his role as a neutral arbiter by

inserting his personal views on the Catholic Church.1

The IJ’s conduct, though at times antagonistic and combative, did not amount

to a due process violation. Virves-Andres had a full opportunity to present her case.

The IJ held a complete hearing and allowed counsel to conduct thorough direct- and

cross-examinations with only periodic interruptions to ask clarifying questions.2 See

Rizo v. Lynch, 810 F.3d 688, 693 (9th Cir. 2016) (holding that “a mere showing that

the IJ was unfriendly, confrontational, or acted in an adversarial manner is not

enough” to establish a due process violation); Lanuza v. Holder, 597 F.3d 970, 972

(9th Cir. 2010) (finding no due process violation when “the IJ reviewed all the record

evidence, heard counsel’s arguments and [the petitioner’s] testimony, [and] allowed

cross-examination”).

In any event, the IJ’s conduct also did not prejudice Virves-Andres. Although

1 Virves-Andres also argues that the IJ’s admonishment of her for being tardy demonstrated his bias. But after the admonishment and Virves-Andres’s explanation, the IJ proceeded with the hearing. Government counsel’s inappropriate interjections during the hearing did not establish a due process violation because the IJ reprimanded counsel, who subsequently apologized. 2 The IJ’s remarks about the Catholic Church mostly occurred at the end of the hearing, after the IJ confirmed with Virves-Andres’s counsel that he had no questions on re-direct.

3 23-1804 the IJ made an adverse credibility finding, he also assumed Virves-Andres’s

credibility in the alternative, reviewed the merits of her claims, weighed the full

record, and considered her testimony. And, the BIA assumed Virves-Andres’s

credibility and conducted a de novo review of her claims. See Arrey v. Barr, 916

F.3d 1149, 1159 (9th Cir. 2019) (“[A]lthough the IJ made a questionable adverse

credibility finding against [the petitioner], any prejudice from that was cured by the

Board’s subsequent decision assuming the credibility of her testimony in full.”).

2. Substantial evidence supports the BIA’s finding that Virves-Andres is

ineligible for asylum and withholding of removal. “A finding by the [BIA] is not

supported by substantial evidence when any reasonable adjudicator would be

compelled to conclude to the contrary based on the evidence in the record.” Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (cleaned up).

Virves-Andres testified that the alleged incidents by the parishioners occurred many

years ago, and there were significant lapses of time without any incidents before she

left Guatemala. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (finding

that the petitioner “failed to present evidence compelling a finding of past

persecution” because he remained in his native country for another six months after

an alleged incident without experiencing any additional harm); Lata v. INS, 204 F.3d

1241, 1245 (9th Cir. 2000).

The record does not compel a finding of past persecution or a well-founded

4 23-1804 fear of future persecution. See Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995)

(“Although a reasonable factfinder could have found . . . past persecution, we do not

believe that a factfinder would be compelled to do so. We are not permitted to

substitute our view of the matter for that of the Board.”); Duran-Rodriguez v. Barr,

918 F.3d 1025, 1028 (9th Cir. 2019). Nor does the evidence compel a contrary

finding under the more stringent standard for withholding. See Al-Harbi v. INS, 242

F.3d 882, 888–89 (9th Cir. 2001).

3. To be eligible for CAT protection, a petitioner must show that it is more

likely than not that she will be subject to torture by or with the acquiescence of a

public official if removed to her native country. Xochihua-Jaimes v. Barr, 962 F.3d

1175, 1183 (9th Cir. 2020). Substantial evidence supports the BIA’s holding that

Virves-Andres is ineligible for CAT protection because she failed to establish the

requisite degree of state action or acquiescence.

The generalized country conditions evidence about government corruption,

gang violence, and high crime rates in Guatemala fails to demonstrate the

particularized, ongoing risk of future torture necessary for CAT relief. See

Tzompantzi-Salazar v. Garland, 32 F.4th 696, 706–07 (9th Cir. 2022) (finding that

the country conditions evidence must show the petitioner “faces a particularized,

ongoing risk of future torture”); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th

Cir. 2010) (finding that the “generalized evidence of violence and crime” was “not

5 23-1804 particular” to petitioners and insufficient for CAT relief). Nor does Virves-Andres

identify parts of the record supporting her claim of government acquiescence,

consent, or participation in torture.

The petition is DENIED.

6 23-1804