NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 2 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
VUTORO SAUMAILAGI MUALEVU, No. 20-73108 Petitioner, Agency No. A047-044-893 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 17, 2022 San Francisco, California
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges. Dissent by Judge BYBEE. Petitioner, Vutoro Saumailagi Mualevu, is a Fijian citizen who seeks review
of an order of the Board of Immigration Appeals (“BIA”) upholding a decision of
an Immigration Judge (“IJ”) denying his request for deferral of removal under the
Convention Against Torture. We have jurisdiction under § 242 of the Immigration
and Nationality Act, 8 U.S.C. § 1252, and § 2242(d) of the Foreign Affairs Reform
and Restructuring Act (“FARRA”), 8 U.S.C. § 1231 note. See Nasrallah v. Barr,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 140 S. Ct. 1683, 1690–91 (2020). We deny the petition.
I
Mualevu was admitted to the United States as a lawful permanent resident in
1999. In 2009, Mualevu was convicted in California state court of one count of
attempted murder in violation of California Penal Code §§ 187(a) and 664 and
three counts of assault with a deadly weapon in violation of California Penal Code
§ 245(a)(1), and he was sentenced to a total of 13 years in prison. In 2019, he was
released from state prison into the custody of the Department of Homeland
Security (“DHS”). During subsequent removal proceedings, an IJ held that
Mualevu’s convictions constituted “aggravated felonies” that rendered him subject
to removal and also rendered him ineligible for asylum or withholding of removal.1
Mualevu has not challenged those rulings either in his subsequent appeal to the
BIA or in his petition for review in this court.
The only aspect of his removal proceedings that Mualevu challenges in this
court is the denial of his request for deferral of removal under the regulations
1 See United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1065–68 (9th Cir. 2018) (holding that Cal. Penal Code § 245(a)(1) is categorically a crime of violence and that a conviction under that section with a sentence of a least one year is an aggravated felony); see also 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i) (stating that an aggravated felony is a “particularly serious crime” that renders an alien ineligible for asylum); id. § 1227(a)(2)(A)(iii) (stating that an alien convicted of an “aggravated felony” is removable); id. § 1231(b)(3)(B)(ii) (stating that an alien convicted of a “particularly serious crime” is ineligible for withholding of removal).
2 implementing the Convention Against Torture. See FARRA § 2242(b)
(authorizing issuance of regulations); 8 C.F.R. §§ 208.17, 1208.17. The factual
predicate for that request was initially set forth in Mualevu’s written application.
Mualevu claimed that his family members had participated in an unsuccessful coup
against the Fijian government led by George Speight; that his cousin was killed by
the Fijian army during the coup; and that, given his family’s participation in the
rebellion, he feared being targeted if he were removed to Fiji. In addition,
Mualevu also alleged that he had “grow[n] up” in Fiji “with no father” and that, as
a result, he faced “a lot of hating” from people in his “village” while growing up.2
After Mualevu submitted his written application to the IJ, there were four in-
court hearings concerning that application. At a hearing on August 5, 2019, the IJ
acknowledged receiving the application. However, because Mualevu stated that he
understood only a “little bit” of English and the court did not have a Fijian
interpreter present, the IJ continued the hearing. Two weeks later, on August 19,
2019, the court once again did not have a Fijian interpreter available. In
nonetheless proceeding to set an evidentiary hearing on Mualevu’s application, the
IJ repeatedly confirmed with Mualevu that he understood what that hearing would
entail and that he needed to submit any documents before then. However, when
2 As we note below, see infra at 8, Mualevu’s opening brief in this court has expressly abandoned any claim that he is entitled to relief based on such alleged mistreatment by villagers.
3 the hearing date arrived on November 18, 2019, there was again no Fijian
interpreter, and the IJ stated that it had “been very difficult finding one.” The IJ
then took Mualevu’s “case off the calendar.” Finally, on December 20, 2019,
Mualevu appeared in court for a further hearing. At the outset of that hearing, the
IJ stated that, despite a “nationwide search,” the court had been unable to locate a
Fijian interpreter. Noting that Mualevu had lived in the United States for many
years and clearly had some facility in the English language, the IJ stated that she
would go forward and would conduct the hearing in English. The DHS attorney
noted for the record that, at the time of Mualevu’s initial arrival in the U.S. in
1999, he stated in his visa application that he spoke or read “Fijian” and “English.”
The IJ stated that, “as will be noted throughout these proceedings, [Mualevu] has
resided in the United States for approximately 20 years and has demonstrated the
ability to understand English.” The IJ also noted that his criminal files confirmed
that he had some sufficient facility in the English language—his interview with the
police was conducted in English, and his therapy sessions in prison were conducted
in English. The IJ further observed that, although Mualevu had assistance from
another person in completing his written application, Mualevu had handwritten the
application in English himself. Accordingly, the IJ proceeded with the evidentiary
hearing in English.
In explaining why he feared harm if he returned to Fiji, Mualevu first
4 reiterated that he had felt hated by the villagers because he grew up without a
father. The IJ asked Mualevu why he would still have this fear as a grown man,
and Mualevu stated that he still felt that he would be treated differently. During
examination by DHS counsel, Mualevu stated that he had been beaten by villagers
twice when he was 16, and that, as a result of the first beating, he spent at least a
month in the hospital. Mualevu said that he and his grandfather reported the
beating to the police, but he stated that, because no one was killed, they did
nothing about it. When asked whether he could move to another part of Fiji,
Mualevu responded, in somewhat rambling terms, that he just wanted a “normal
life” and to “get away from those negative people.”
Mualevu was also asked about the claim in his written application that he
would face retaliation due to his family’s involvement in Speight’s coup attempt.
Mualevu stated that his cousin was killed by an “army sniper” outside the Fijian
Parliament building, and that his cousin shared his last name of Mualevu. He
stated that several uncles of his had also been involved in the coup attempt, and he
did not know what had happened to them. He testified that he feared that, if he
was removed to Fiji, the Fijian government would “want me to pay the price for
what my two uncles did to them.” When asked to explain what his uncles had
done, Mualevu stated that they “went around with the rebels and then shot a lot of
the army’s people.” Mualevu also noted that his uncles had previously been in the
5 military before they joined Speight’s rebel group. Mualevu also submitted for the
record several English language articles providing additional details about
Speight’s coup attempt in May 2000.
When asked about relatives who still lived in Fiji, Mualevu stated that he
had an aunt who with her “husband just move[d] from place to place.” He stated
that they moved around a lot because they “fear[ed] for their own life.” When
asked to explain, Mualevu said that his aunt and uncle had no “land to settle” and
that the military “just do whatever they want to do.” Elaborating on the latter
point, Mualevu stated, “They, by the power of guns, they take things. It’s a poor
military, really poor, very greedy, and very aggressive.” When later asked again
about this aunt, Mualevu stated that she no longer lives anywhere near the village
where he grew up but lives on a “different island” in another province of Fiji.
The IJ denied Mualevu’s application for deferral of removal under the
Convention Against Torture, and ordered him “removed to Fiji.” The IJ dismissed
Mualevu’s reliance on what happened to his relatives, noting that “[a]nything that
happened to his family happened more than a decade ago.” As for the beatings by
the villagers, the IJ concluded that the Fijian police’s lack of response did not
establish acquiescence. The IJ also stated that Mualevu could move to a “different
part of Fiji” where he would be away from the villagers who had harmed him in
the past.
6 Mualevu timely appealed the IJ’s removal order to the BIA. While still in
DHS detention, he submitted an 11-page pro se brief in English (which was
presumably prepared with assistance from others). The BIA upheld the IJ’s
decision. The BIA concluded that the lack of a Fijian interpreter at the merits
hearing did not violate Mualevu’s due process rights because he “ha[d] not
demonstrated that an interpreter in the Fijian language would have made a
difference in the outcome” of his removal proceedings. Specifically, the BIA
reasoned that, “even if there was a nuance of language that he could not express as
well in English,” Mualevu had neither “identif[ied] any specific issues that were
not adequately developed,” nor did he cite any “specific examples that reasonably
may have impacted the outcome” of the proceedings had a Fijian interpreter been
provided to him. Additionally, the BIA also found that, although he had “objected
to his hearing being conducted in English,” Mualevu nevertheless “was able to
intelligibly and adequately respond to the questions asked.”
Turning to the merits of his claim for deferral of removal under the
Convention Against Torture, the BIA largely agreed with the IJ’s analysis. The
BIA noted that the harm to his cousin and uncles occurred “over a decade ago.”
The BIA also agreed that, although the Fijian police did nothing in response to the
report of his beating as a teenager, such general ineffectiveness in policing did not
establish acquiescence. The BIA further stated that Mualevu could move to
7 another part of Fiji, away from the villagers. Finally, the BIA noted that there was
country conditions evidence indicating that the Fijian government had made
effective efforts to control its security forces and to punish officials who
committed abuses.
II
In his opening brief, Mualevu expressly abandoned any claim that he is
entitled to deferral of removal under the Convention Against Torture based on the
alleged mistreatment he suffered from villagers when he was 16. Mualevu
contends only that the agency erred in rejecting his claim for deferral of removal
based on his uncles’ and cousin’s involvement in a failed coup attempt in Fiji in
2000, and his sole ground for challenging that determination is his assertion that he
was denied due process by virtue of the failure to provide him with a Fijian
interpreter at the merits hearing. We conclude that Mualevu has not shown that he
was prejudiced by the lack of a Fijian interpreter and that the agency therefore
properly denied deferral of removal.
A due process violation warranting relief from an order of removal occurs
when the alien “does not receive a ‘full and fair’ hearing and suffers prejudice as a
result of the inadequate proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th
Cir. 2000) (emphasis added). To show prejudice, the alien must demonstrate “that
the alleged violation affected the outcome of the proceedings.” Lata v. INS, 204
8 F.3d 1241, 1246 (9th Cir. 2000); see also id. (“A showing of prejudice is
essentially a demonstration that the alleged violation affected the outcome of the
proceedings; we will not simply presume prejudice.” (citation omitted)). Even
assuming arguendo that the agency erred in failing to provide Mualevu with a
Fijian interpreter at his merits hearing, we conclude that Mualevu failed to
establish prejudice.
Mualevu contends that the failure of the IJ to provide him with a Fijian
interpreter is, in effect, a failure to fully develop the record and that therefore “we
may infer prejudice,” even “in the absence of any specific allegation as to what
evidence [Mualevu] would have presented” had he been provided with a Fijian
translator. Agyeman v. INS, 296 F.3d 871, 885 (9th Cir. 2002) (emphasis added).
The analogy to a failure to develop the record is apt, but we conclude that Mualevu
has failed to show that, on this record, such an inference of prejudice is warranted.
Mualevu was repeatedly asked “broad questions” about what his uncles did,
and he was allowed to respond with whatever information he wanted to provide.
Hussain v. Rosen, 985 F.3d 634, 645 (9th Cir. 2021). Mualevu plainly understood
those questions, because he provided responsive answers, in satisfactory English,
concerning both what his uncles and cousins did during the 2000 coup and why
Mualevu believed that he would be targeted by the Fijian government in retaliation
for his relatives’ roles in the coup. In particular, Mualevu was specifically asked
9 “why is the government after your uncles?”, and he said that they “did some bad
things” during the coup. When asked to elaborate as to what those bad things
were, he said “They, most likely they shot some of them. They went around with
the rebels and then shot a lot of the army’s people.” When Mualevu again referred
to the “bad” things done by his uncles, he was again asked, “But do you know
what it is? Do you know what your uncles did that’s got the Fiji government
angry?” Mualevu replied, “They shot, they killed, some of the armies.”3
In his appellate brief, Mualevu sets forth several additional details that he
now claims that, if he had had an interpreter, he would have provided at the
hearing. Mualevu has also supplied a declaration to support these assertions, and
he asks us to supplement the record to include that declaration. The Government
argues (1) that we cannot consider the additional details sketched in Mualevu’s
brief because those contentions were not raised before the agency, and (2) that we
cannot supplement the record with a formal declaration, because we are required to
“decide the petition only on the administrative record on which the order of
3 The dissent highlights one particular portion of the transcript in which Mualevu made a comment on this point that is hard to follow. See Dissent at 2. But the assessment of prejudice must be based on the record as a whole, and the transcript includes multiple other instances in which (1) Mualevu clearly understood that he was being asked what his uncles did and why the Fijian government would be after them; and (2) Mualevu was able to provide responsive information on these points in simple English. The other transcript excerpt quoted by the dissent relates only to Mualevu’s claim that he was harmed by villagers growing up, and—as we have explained—that claim has been expressly abandoned in this court. See supra at 8.
10 removal is based,” see 8 U.S.C. § 1252(b)(4)(A). Mualevu contends that these
matters may properly be considered because the BIA itself has emphasized that, in
connection with such due process claims, the alien should “identify specific issues
that were not adequately developed” before the IJ, and Mualevu is complying with
that instruction. We need not resolve this dispute. Even considering Mualevu’s
articulation of the additional points that he claims he would have made at the
hearing if he had had a translator, we conclude that an inference of prejudice is not
warranted. See Hussain, 985 F.3d at 645 (considering the “testimony Hussain now
claims he would have proffered” in concluding that he had failed to show prejudice
in connection with his claimed due process violation).4
In particular, Mualevu argues that he would have added the important detail
that his uncles had specifically been assigned the task of assassinating then-
Commodore Frank Bainimarama, who was a “leader in the Fijian army” at the time
and who, until recently, was the Prime Minister of Fiji. But given Mualevu’s
demonstrated ability to communicate at least basic concepts in English, there is no
basis to conclude that, when asked multiple questions about his uncles’ actions
during the coup, Mualevu omitted this specific detail due to the lack of a translator
at his December 2019 hearing. Mualevu obviously now thinks he should have
added that his uncles were involved in a plot to kill a high government official, but
4 We therefore deny the motion to formally supplement the record.
11 on this record there is no reason to believe that his failure to do so was due to the
lack of a translator as opposed simply to his failure, as a pro se applicant, to think
to add those additional details. See Hussain, 985 F.3d at 645 (holding that, where
an alien is repeatedly asked open-ended questions seeking to cover the key
elements of the alien’s claim, arguments “that he would have provided different
answers to more pointed questions are unpersuasive and do not establish prejudice”
in support of a due process claim based on failure to develop the record).
Mualevu also asserts that, had he had a translator, he would have provided
the further detail that “shortly after the coup attempt,” the wife of one of
Mualevu’s uncles was “arrested, jailed, and interrogated by government forces”;
that she was “released but told that if she did not provide the government with the
location of her husband, she would be arrested again and jailed until she revealed
his location”; and that she “fled her home” after being released, “has moved
between three different locations, and continues to fear persecution by the
government despite her husband’s . . . continued absence.” As noted earlier,
Mualevu did testify that his aunt had moved around in part because of fear of the
military’s abuses, but he did not tie her fear specifically to her husband’s
participation in the coup attempt. Once again, we see no basis to conclude that the
omission of this detail was due to the lack of a translator as opposed to Mualevu’s
failure to think to mention it. Moreover, the only specific claim of mistreatment of
12 his aunt that he now asserts is one that occurred immediately after the coup, when
the government was looking for his uncle. This additional detail would not affect
the conclusion that “[a]nything that happened to his family” in Fiji “happened
more than a decade ago.”
Finally, Mualevu contends that, if he had had a translator, he would have
explained his view that it is “well-known” that Fiji’s security forces engage in
torture and that they maintain “watch lists” of opponents and critics of the
government. But the record already contained substantial documentary evidence
concerning the shortcomings of the Fijian government and the internal problems in
Fijian society (some of it supplied by Mualevu himself), and we see no basis to
conclude that the generalized opinions offered by Mualevu—who had not lived in
Fiji for 20 years—would have materially altered the balance of the evidence on this
subject.
Accordingly, we conclude that Mualevu has failed to establish prejudice due
to the lack of a translator at his hearing. The agency therefore properly denied his
request for deferral of removal under the Torture Convention
PETITION FOR REVIEW DENIED.
13 FILED MAR 2 2023 BYBEE, J., dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I would grant Vutoro Saumailagi Mualevu’s petition and return this case for
a “full and fair hearing” before the immigration judge (“IJ”). Perez-Lastor v.
I.N.S., 208 F.3d 773, 777 (9th Cir. 2000) (internal quotations and citation omitted).
The record below demonstrates that he was denied due process.
Mualevu is not fluent in English and required a translator during his
immigration proceedings. During his first scheduled appearance before an IJ in
May 2019, Mualevu requested a Fijian translator and the IJ rescheduled him for a
later master calendar in order to provide for one. In June and July 2019, Mualevu
appeared before the IJ for initial removal proceedings where a Fijian interpreter
was provided. At Mualevu’s August 5, 2019 merits hearing, the IJ continued his
case due to the lack of an interpreter, explaining “I don’t want to go through any
more proceedings with you without an interpreter.” On August 19, 2019, the IJ
again continued the case for lack of an interpreter. The IJ continued the case for a
fourth time in November 2019 for the same reason and assured Mualevu that
“we’ll wait until we get you [an interpreter], sir,” but indicated that she “want[ed]
to finish this case before the end of the year.” In December 2019, however, the IJ
decided to proceed with Mualevu’s merits hearing despite failing to secure an
interpreter; she explained that after “a nationwide search . . . [t]here is no qualified
Fijian interpreter.” Before rendering her oral decision, the IJ noted that the hearing was conducted in English without the assistance of an interpreter. She cited as
evidence that Mualevu “does speak and understand English” the following: his
birth certificate being in English; his application for an immigrant visa where
Mualevu indicated “some facility in English”; his presence in the United States
since 1999; his period of custody in California prison; and the court’s periodic
inquiries into whether Mualevu understood what was going on during the hearing.
Mualevu protested repeatedly that “I need a translator.”
Despite the IJ’s confidence that Mualevu understood the proceedings, the
hearing transcript is replete with examples demonstrating that he lacks fluency in
the English language and struggled to understand and respond to questions in
English. I’ll provide two illustrative examples. When asked why his uncles had
shot some members of the Fijian military, Mualevu answered:
Well, they, it was, go against the army and they started never getting in the rebels’ way. So, they have to make the army to listen, to pay attention. This is going to happen again and again if you guys never come together. And they never come together. It was, they started, and nobody got found, nobody, and it was all gone.
And, when asked what would prevent Mualevu from living in a different area than
where he was originally from—where Mualevu testified he had been beaten and
feared returning—he responded:
I just want to be successful in life, through bad things. Just want to be
2 happy and enjoy that I had a life. I want to be a better person. I want to be great. I know the negatives and the positives, learned my lesson. I just want to enjoy life and be successful and get away from those negative people. That’s it. I just want to live a normal life.
We have held that when an “alien does not speak English fluently, the
presence of a competent interpreter is critical to the fairness of a hearing.” Kotasz
v. I.N.S., 31 F.3d 847, 850 n.2 (9th Cir. 1994). Nonetheless, the IJ proceeded
without a translator and issued a decision predicated on Mualevu’s testimony
despite his apparent difficulty in understanding and responding to questions in
English. In doing so, the IJ failed to fully develop the record, and Mualevu was
either presumptively or specifically prejudiced. See Agyeman v. I.N.S., 296 F.3d
871, 885 (9th Cir. 2009) (to provide a full and fair hearing, an IJ has a duty to fully
develop the record).
Where, as here, the IJ fails to fully develop the record by requiring a
petitioner to proceed in English without a translator, a presumption of prejudice
should apply. As we have recognized, an alien is not required to “produce a record
that does not exist.” Agyeman, 296 F.3d at 885 (quoting Perez-Lastor v. I.N.S.,
208 F.3d 773, 782 (9th Cir. 2000)). “Rather, we may infer prejudice in the absence
of any specific allegation as to what evidence . . . would have [been] presented” if
the IJ had fulfilled her constitutional duty to fully develop the record. Id.
3 Even assuming a showing of specific prejudice was necessary in this case,
Mualevu’s claims are far from frivolous and the petition should be granted. A due
process violation causes prejudice if “the violation potentially affects the outcome
of the proceedings.” Agyeman, 296 F.3d at 884 (cleaned up). Mualevu contends
that with the assistance of an interpreter he would have provided important details
about his Fijian family’s involvement in an attempted coup, the government’s
attempts to get information on those involved from other family in Fiji, and the
ways in which the government uses physical interrogation tactics. I would give
Mualevu the opportunity to provide a fully developed record for the IJ and the BIA
to determine the merits of his claim.