William Gonzalez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2020
• Docket: 14-72442
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM MARDOQUEO GONZALEZ, No. 14-72442

Petitioner, Agency No. A092-402-538

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 11, 2020** Pasadena, California

Before: BERZON, R. NELSON, and LEE, Circuit Judges.

Petitioner William Gonzalez seeks review of an Immigration Judge’s

negative reasonable fear determination. We deny the petition.

This court has jurisdiction to review “[a]n IJ’s negative determination

regarding the alien’s reasonable fear” under 8 C.F.R. § 208.31(g)(1). Andrade-

* 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). Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). We review the IJ’s

determination that the alien did not establish a reasonable fear of persecution or

torture for substantial evidence. Id. “[W]e must uphold the IJ’s conclusion . . .

unless, based on the evidence, ‘any reasonable adjudicator would be compelled to

conclude to the contrary.’” Id. (quoting Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091

(9th Cir. 2014)). “We review claims of constitutional violations de novo.” Lanuza

v. Holder, 597 F.3d 970, 972 (9th Cir. 2010).

1. Gonzalez’s petition for review was timely. See Ayala v. Sessions, 855

F.3d 1012 (9th Cir. 2017); Martinez v. Sessions, 873 F.3d 655 (9th Cir. 2017). The

petition is timely because it was filed within thirty days of the BIA’s final order. 8

U.S.C. § 1252(b)(1).

2. We deny the petition because substantial evidence supports the IJ’s

conclusion that Gonzalez’s fear of future persecution is not reasonable. Although

Gonzalez did face serious threats when he fled El Salvador, he offered only

speculation that the people who threatened him in 1980 are alive, in any position to

harm him, or still interested in carrying out their threats. There is substantial

evidence supporting the IJ’s conclusion that circumstances have changed

significantly since Gonzalez’s past persecution. Gonzalez testified that he felt

threatened by his encounter with a Salvadorian official in 2005, but “vague threats

. . . do not compel a finding of clear probability of future persecution.” Tamang v.

2 Holder, 598 F.3d 1083, 1094–95 (9th Cir. 2010).

3. Gonzalez has not established a due process violation based on the IJ’s

refusal of his request to supplement his testimony. He has not demonstrated that

the reasonable fear hearing before the IJ was fundamentally unfair and prejudicial.

Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006). He gave

complete and unimpeded testimony on direct examination by his attorney.

Gonzalez’s attorney then confirmed she had no further questions and the

government declined to cross examine Gonzalez. Only after the IJ issued an oral

ruling did Gonzalez ask to “add something that I’ve heard about the MS [gang.]”

Gonzalez had not previously connected his claimed fear of persecution to the gang.

The IJ declined. Because Gonzalez “was allowed to present evidence regarding his

[] claim, and because [his] presentation was not limited in any meaningful

respect,” he was afforded a full and fair hearing. Almaghzar v. Gonzales, 457 F.3d

915, 921 (9th Cir. 2006); Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010) (per

curiam).

4. Gonzalez has also failed to demonstrate that the IJ’s denial of his second

request for a continuance constitutes a due process violation. The IJ denied

Gonzalez’s second request for a continuance “at this point,” because of the IJ’s

regulatory obligation to conduct a review of the asylum officer’s reasonable fear

determination “within 10 days” “[i]n the absence of exceptional circumstances.” 8

3 C.F.R. 208.31(g). Gonzalez’s attorney did not object or make any statement on this

topic on the record. On appeal, Gonzalez faults the IJ for not determining whether

there were exceptional circumstances, without making any representation that there

were, and if so, what those exceptional circumstances were. Nor does Gonzalez

assert that any specific evidence was excluded as a result of the denial, or describe

the nature of any evidence that might have been offered were the continuance

granted. Gonzalez has therefore failed to establish that the denial was

fundamentally unfair, or that he was prejudiced by the denial of a continuance, and

so has failed to establish a due process violation. See Ibarra-Flores, 439 F.3d at

620–21.

DENIED.