FILED
NOT FOR PUBLICATION OCT 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NUAN IVAN CARRANZA, No. 11-70495
Petitioner, Agency No. A099-825-145
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.
Nuan Ivan Carranza, a native and citizen of Honduras, petitions for review
of the Board of Immigration Appeals’s (“BIA”) decision affirming the denial of his
application for deferral of removal under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review for substantial evidence the factual findings underlying the BIA’s
determination of ineligibility under CAT. Owino v. Holder, 771 F.3d 527, 531–32
(9th Cir. 2014) (per curiam). We review de novo claims of due process violations
in removal proceedings. Larita-Martinez v. I.N.S., 220 F.3d 1092, 1095 (9th Cir.
2000). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for
review.
I
Substantial evidence supports the BIA’s denial of CAT relief to Carranza.
The BIA gave “reasoned consideration” to all the evidence in the record, including
the declaration provided by Borjas. See Cole v. Holder, 659 F.3d 762, 772 (9th
Cir. 2011) (remanding when BIA completely failed to consider evidence provided
by expert witness). The BIA reasonably concluded that Carranza was unlikely to
come to the attention of Honduran authorities as a potential gang member. See
Andrade v. Lynch, 798 F.3d 1242, 1244–45 (9th Cir. 2015) (per curiam)
(concluding that petitioner with “decorative, not gang-related” tattoo did not
establish clear probability that he would be subject to torture).
Substantial evidence also supported the BIA’s conclusion that government
officials would not acquiesce in Carranza’s torture by members of the Mara 18
gang—through its Mano Duro policies, the Honduran government is attempting to
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address gang-related violence. Furthermore, Carranza did not seek police
assistance following his previous run-ins with members of Mara 18 and thus
cannot argue that the government was willfully blind to his particular situation.
See Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th Cir. 2008) (holding that
petitioner could not establish government acquiescence in gang violence “because
the incidents were never reported and there [was] no evidence in the record
suggesting the government may have otherwise been aware of threats made
against” the petitioner), abrogated on other grounds by Henriquez-Rivas v. Holder,
707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). In short, substantial evidence
supports the BIA’s conclusion.
II
Carranza claims the immigration judge denied Carranza due process of law
by excluding the telephonic testimony of Maria Borjas, an expert witness.
Petitioner bears the burden of establishing that: (1) a due process violation
occurred; and (2) the violation caused the petitioner prejudice, meaning it affected
the outcome of the proceedings. Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.
2000).
We agree that the IJ violated Carranza’s procedural due process rights by
excluding Borjas’s telephonic testimony. Aliens in removal proceedings are
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entitled to a “full and fair hearing of [their] claims and a reasonable opportunity to
present evidence.” Id. at 971; see also 8 U.S.C. § 1229a(b)(4)(B) (describing
aliens’ rights in removal proceedings). In Colmenar, we held that an IJ denied
petitioner due process by limiting petitioner’s oral testimony. 210 F.3d at 971–72.
Similarly, in Lopez-Umanzor v. Gonzales, we held that the IJ denied petitioner due
process when the telephonic expert testimony “could provide information relevant
to the IJ’s most critical areas of doubt” and would cover issues not addressed in the
written affidavits. 405 F.3d 1049, 1056–57 (9th Cir. 2005). In this case, the IJ
should have permitted the petitioner to present the telephonic testimony.
However, in addition to demonstrating the procedural due process violation,
petitioner bears the burden of establishing that the alleged violation prejudiced
their interests, or potentially affected the outcome of the proceeding. Colmenar,
210 F.3d at 971. After a careful review of the record, we conclude that Carranza
did not establish that the exclusion of the evidence affected the outcome of the
proceedings. The evidence would have been largely cumulative of the expert’s
written declaration, which was admitted into evidence. Further, her testimony was
focused on the risk to persons in an age group different from that of the petitioner.
We note that petitioners seeking deferral under the CAT face a very high
burden of proof. See Andrade v. Lynch, 798 F.3d 1242, 1245 (9th Cir. 2015) (per
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curiam). Petitioners must establish that there is more than a 50% chance that they
would be tortured if removed to the proposed country of removal. Id.; 8 C.F.R.
§ 1208.16(c)(2). Given the nature of the excluded evidence and the heavy burden
facing CAT applicants, petitioner has not established the requisite prejudice from
the due process violation and is therefore not entitled to relief.
PETITION DENIED.
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