NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0661n.06
No. 17-3409
FILED
UNITED STATES COURT OF APPEALS Nov 29, 2017
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
WILBUR HERNANDEZ-ORTEGA, aka )
Wilber Hernandez-Ortega, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III, Attorney ) APPEALS
General, )
)
Respondent. )
BEFORE: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.
PER CURIAM. Wilbur Hernandez-Ortega, a.k.a. Wilber Hernandez-Ortega, petitions for
review of an order of the Board of Immigration Appeals (BIA) that affirmed an immigration
judge’s (IJ) denial of his application for withholding of removal and relief under the Convention
Against Torture (CAT).
Hernandez-Ortega is a native and citizen of El Salvador. He unlawfully entered the
United States in September 2011, and he was removed the same month. Hernandez-Ortega
unlawfully reentered the United States in December 2011, and he was ordered to appear before
an immigration judge after an asylum officer determined that he had established a reasonable
fear of persecution if removed to El Salvador.
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Hernandez-Ortega v. Sessions
Hernandez-Ortega filed an application for withholding of removal and relief under the
CAT, alleging that, if he were removed to El Salvador, gang members would persecute and
torture him because of his Christian religion and his attempts to convince gang members to join
his church. The IJ denied the application, concluding that Hernandez-Ortega’s testimony was
not credible and that he failed to establish entitlement to relief. The BIA affirmed the IJ’s
decision.
On appeal, Hernandez-Ortega raises the following arguments: (1) the IJ’s adverse
credibility determination was improper; (2) the BIA erred by failing to address one of his
arguments; (3) the BIA erred by concluding that his corroborative evidence was insufficient to
establish his entitlement to relief; and (4) he was denied due process when the IJ allowed the
government to cross-examine him about his prior sworn statement without giving him adequate
time to review the statement with his counsel.
The BIA issued an independent decision, so we review the BIA’s determination,
including any parts of the IJ’s reasoning referenced by the BIA. Khozhaynova v. Holder,
641 F.3d 187, 191 (6th Cir. 2011). We review legal conclusions de novo and factual findings
and credibility determinations for substantial evidence. Id. Under the substantial-evidence
standard, administrative findings of fact “are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Id.
Hernandez-Ortega first argues that the adverse credibility determination was improper
because the IJ demonstrated antagonism toward him or engaged in impermissible speculation
and conjecture in three instances. First, after Hernandez-Ortega testified that gang members
threatened to kill him in 2008 (which implied that they would follow through on their threats if
he returned), the IJ pointed out through questioning that the gang members did not kill him in
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2010 when they allegedly attacked him with a knife and a rock. Second, after Hernandez-
Ortega’s counsel asked him about being stabbed with a knife during the 2010 incident, the IJ
pointed out that Hernandez-Ortega had testified that he was cut on the arm with a knife, not
stabbed. And third, the IJ noted in his decision that Hernandez-Ortega could not explain why the
gang members did not kill him during the 2010 incident if it was their intention to do so.
Hernandez-Ortega further argues that the adverse credibility determination was improper
because the IJ interjected his personal beliefs by stating that Hernandez-Ortega’s assertion that
his scars were from the 2010 incident would be accepted as true only if the IJ concluded that
Hernandez-Ortega was a credible witness.
Hernandez-Ortega’s arguments provide no basis for disturbing the adverse credibility
determination. Nothing about the IJ’s questions or statements suggests that he was improperly
antagonistic toward Hernandez-Ortega or that he based any decision on speculation or
conjecture. And the IJ did not impermissibly interject his personal opinion by noting that
Hernandez-Ortega’s overall credibility would determine whether the IJ accepted as true the
factual assertions in Hernandez-Ortega’s testimony.
Hernandez-Ortega next argues that the BIA erred by failing to address his argument that
the IJ improperly placed on him the burden to explain why the gang members did not kill him
during the 2010 incident. This argument does not warrant relief because the BIA did not rely on
the IJ’s observation that Hernandez-Ortega could not explain why the gang members did not kill
him.
Hernandez-Ortega next argues that the BIA erred by concluding that his corroborative
evidence was insufficient to establish that he was entitled to withholding of removal and relief
under the CAT. Hernandez-Ortega specifically relies on photographs of his scars, letters from
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Hernandez-Ortega v. Sessions
his parents and fellow church members addressing his religion and church activities, and letters
and other evidence concerning the murder of alleged gang members in El Salvador whom
Hernandez-Ortega had invited to join his church. Hernandez-Ortega also relies on country
reports and other evidence of conditions in El Salvador.
To qualify for withholding of removal, an applicant must show that it is more likely than
not that he would be persecuted in the country of removal due to his “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Pablo-
Sanchez v. Holder, 600 F.3d 592, 594 (6th Cir. 2010). An applicant who establishes past
persecution is presumed to have a well-founded fear of future persecution. Pablo-Sanchez, 600
F.3d at 594. To qualify for relief under the CAT, the applicant must establish that it is more
likely than not that he would be tortured in the country of removal “by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1); Haider v. Holder, 595 F.3d 276, 289 (6th Cir. 2010).
Substantial evidence supports the BIA’s determination that Hernandez-Ortega’s
corroborative evidence was insufficient to establish his entitlement to relief. The photographs of
Hernandez-Ortega’s scars and the letters concerning his religion and church activities did not
compel a conclusion that he had been persecuted because of his religion or that it was more
likely than not that he would be persecuted or tortured if removed to El Salvador. Notably, none
of the letters suggest that the 2010 attack was connected to Hernandez-Ortega’s work with the
church. In addition, the BIA reasonably discounted the letters concerning the murder of gang
members in El Salvador because two of the letters were strikingly similar despite allegedly being
written by different people at different times, and because the letters did not state that the victims
were killed due to their religious activities or their relationship with Hernandez-Ortega. Finally,
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although the evidence of country conditions showed that there are problems with gangs in El
Salvador, it was insufficient to compel the conclusion that it was more likely than not that
Hernandez-Ortega’s removal would result in him being persecuted on account of a protected
ground or tortured “by or at the instigation of or with the consent or acquiescence of a public
official.” See Zaldana Menijar v. Lynch, 812 F.3d 491, 501-02 (6th Cir. 2015).
Hernandez-Ortega lastly argues that his due process rights were violated when the IJ
allowed the government to cross-examine him about a sworn statement that he made to a border
patrol agent in 2011 without giving him an adequate opportunity to review the statement with his
counsel. Hernandez-Ortega further contends that the error undermines the adverse credibility
determination because the determination was based in part on his testimony about the sworn
statement.
“We review de novo alleged due process violations in removal hearings.” Bi Qing Zheng
v. Lynch, 819 F.3d 287, 296 (6th Cir. 2016). When reviewing such claims, we must determine
whether there was a defect in the proceedings that caused prejudice to the petitioner. Id. To
establish prejudice, a petitioner must show that the defect led to a substantially different outcome
from that which would have otherwise occurred. Id. at 297. Hernandez-Ortega has not shown
that the questioning about the sworn statement undermined the adverse credibility determination
or otherwise substantially affected the outcome of his removal proceedings because the IJ and
BIA gave valid reasons for the adverse credibility determination and for denying Hernandez-
Ortega relief: reasons that were unrelated to his testimony concerning the sworn statement.
Accordingly, we DENY the petition for review.
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