FILED
NOT FOR PUBLICATION
NOV 24 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCIS HERNANDEZ RIVERA, AKA No. 19-72051
Francis River,
Agency No. A208-121-631
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2021**
Pasadena, California
Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON,*** District
Judge.
*
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).
***
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
Petitioner Francis Hernandez-Rivera, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (BIA) decision denying
his motion to reopen and affirming the Immigration Judge’s (IJ) denial of asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). We deny the petition.
1. Hernandez-Rivera argues that his Notice to Appear (NTA) was
defective—thus depriving the IJ of jurisdiction—for listing the date and time as
“[t]o be set.” We reject this argument as contrary to our established law. We have
consistently applied the rule that an NTA lacking in date, time, or location
information does not deprive the IJ of jurisdiction. Aguilar Fermin v. Barr, 958
F.3d 887, 893 (9th Cir. 2020); Karingithi v. Whitaker, 913 F.3d 1158, 1161–62
(9th Cir. 2019).
2. The IJ’s denial of relief turned on its determination that Hernandez-
Rivera was not credible. We review the adverse credibility determination for
substantial evidence. Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). The IJ’s
adverse credibility determination was based on specific and cogent reasons. The IJ
noted that Hernandez-Rivera’s testimony, Form I-589, and declaration were
inconsistent with respect to the age at which gang threats began and whether
someone named Felipe was present during a specific altercation. The IJ also
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pointed to Hernandez-Rivera’s demeanor when confronted with the inconsistency,
stating that he became “very tense and nervous as he described his heart beating
fast.” While Hernandez-Rivera offered explanations for the inconsistencies and his
demeanor, the IJ was not required to accept these explanations, and the record does
not “compel[] a contrary result.” Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir.
2010) (quoting Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007)).
3. Hernandez-Rivera also argues that his due process rights were
violated when the IJ admitted into evidence his Form I-213 without giving him an
opportunity to cross-examine the preparing officer. A petitioner’s right to due
process in removal proceedings is violated “only if [1] the proceeding was so
fundamentally unfair that [he] was prevented from reasonably presenting his case
and [2] . . . the alleged violation prejudiced his . . . interests.” Mendez-Garcia v.
Lynch, 840 F.3d 655, 665 (9th Cir. 2016) (cleaned up) (quoting Gutierrez v.
Holder, 662 F.3d 1083, 1091 (9th Cir. 2011)). Assuming, without deciding, that
the IJ erred, Hernandez-Rivera has failed to establish prejudice. None of the facts
on which the IJ rested his adverse credibility determination is addressed by the
Form I-213, and Hernandez-Rivera does not allege that the preparing officer had
information relevant to those facts. See Pagayon v. Holder, 675 F.3d 1182,
1191–92 (9th Cir. 2011) (finding no due process violation when the court could
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“find no connection between the additional evidence and the outcome of the
proceeding”).
PETITION DENIED.
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