Yani Ledezma-Paz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 27, 2021
• Docket: 20-71156
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YANI LEDEZMA-PAZ, No. 20-71156

Petitioner, Agency No. A208-200-554 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted July 27, 2021 Withdrawn from Submission July 30, 2021 Resubmitted September 23, 2021 Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and ROBRENO,** District Judge.

Yani Ledezma-Paz, a native and citizen of Honduras, petitions for review of

an order of the Board of Immigration Appeals (“BIA”) summarily dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his application for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. withholding of removal and for protection from removal under the Convention

Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review

questions of law, including due process claims, de novo. Singh v. Gonzales, 416

F.3d 1006, 1009 (9th Cir. 2005) (citing Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.

1999)). We review factual findings, including adverse credibility determinations,

under the substantial evidence standard. See Garcia v. Holder, 749 F.3d 785, 789

(9th Cir. 2014) (citing Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010)).

We grant the petition for review and we remand.

1. Petitioner was not deprived of due process based on improper

translation because none of the identified translation errors caused him prejudice.

See Gutierrez-Chavez v. INS, 298 F.3d 824, 830 (9th Cir. 2002) (“To make out a

violation of due process as the result of an inadequate translation, [the petitioner]

must demonstrate that a better translation likely would have made a difference in

the outcome.”) (citing Acewicz v. INS, 984 F.3d 1056, 1063 (9th Cir. 1993)). The

majority of the translation errors identified were clarified on cross-examination. As

to the ones that were not, Petitioner alleges that the interpreter failed to translate

his testimony that the military police whipped and threw him on December 20. The

transcript states that the military police “beat” and “push[ed]” Petitioner. Petitioner

does not establish, or even argue, that the words “whipped” and “threw” are

appreciably different from the words “beat” and “push[ed],” respectively, and

2 therefore does not show that the omission of those words may have changed the

outcome of his case.

Although Petitioner states that there were at least thirty-five other instances

in which the interpreter translated a word or phrase incorrectly or omitted entirely a

translation of Petitioner’s words, Petitioner does not specify them or indicate how

they might have changed the outcome of his case, and therefore has failed to meet

his burden of establishing that he was prejudiced by these errors.

2. Substantial evidence does not support the BIA’s adverse credibility

determination because neither the IJ nor BIA addressed Petitioner’s explanations

as to four inconsistencies and omissions between Petitioner’s testimony and

documentary evidence. See, e.g., Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th

Cir. 2009) (“[W]here [Petitioner] gave an explanation of inconsistencies . . . those

inconsistencies cannot serve as substantial evidence for a finding that [Petitioner]

was not credible when neither the IJ nor the BIA addressed [Petitioner’s]

explanation[s] ‘in a reasoned manner.’”) (emphasis added) (quoting Campos-

Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999)).

3. Substantial evidence does not support the BIA’s alternative finding

that Petitioner did not provide sufficient corroborating evidence to independently

meet his burden of proof. The BIA stated that “[u]nder the REAL ID Act, which

governs this case, an applicant is expected to submit reasonably obtainable

3 evidence that corroborates the material elements of his claim.” The BIA only

identified one instance in which Petitioner failed to provide corroborating

evidence: “For example, while [Petitioner] testified that he was a leader in his

party, he did not provide evidence corroborating his claim, including evidence that

he was mentioned in any news articles or background country information.”

Whether Petitioner was a leader of the party is immaterial to his claim of

harm related to mistreatment by the military police, as Petitioner never stated that

he was singled out because he was a leader of the party. Rather, Petitioner claimed

that the military police singled him out during the protest because he was wearing

a party shirt, waving a party flag, and walking in front of the protesters. The only

time Petitioner claimed to be a leader of the group was when the IJ asked Petitioner

whether he was a leader of the group, to which Petitioner responded, “One of the

leaders.” Petitioner’s one brief reference to being a leader does not constitute a

“material element” of his claim, and there is no precedent requiring similarly

situated petitioners to prove as such.

4. Substantial evidence does not support the BIA’s determination that

Petitioner (1) failed to establish the requisite nexus between harm and a protected

ground and (2) failed to establish a clear probability of torture. These findings,

although allegedly alternative findings, were clearly intertwined with the adverse

4 credibility determination, which was unsupported by substantial evidence for the

reasons explained above.

As a result of the lack of substantial evidence supporting the adverse

credibility determination and alternative findings, we grant the petition for review

and remand Petitioner’s withholding of removal and CAT claims to the BIA.

THE PETITION FOR REVIEW IS GRANTED AND REMANDED,

and, accordingly, THE MOTION FOR STAY OF REMOVAL IS DENIED AS

MOOT.