NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 5 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARCO VINICIO HERRERA, No. 18-70086
Petitioner, Agency No. A205-024-465
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 16, 2022
San Francisco, California
Before: W. FLETCHER, GOULD, and COLLINS, Circuit Judges.
Marco Vinicio Herrera, a citizen of Guatemala, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) upholding the denial by an
Immigration Judge (“IJ”) of his application for withholding of removal. We have
jurisdiction under § 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252.
We review legal questions and due process claims de novo, and we review the
agency’s factual findings for substantial evidence. Hamazaspyan v. Holder, 590
F.3d 744, 747 (9th Cir. 2009). We deny the petition for review.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
1. Herrera’s Notice to Appear (“NTA”) did not contain the date, time, and
location of his hearing, although this information was supplied to him six days
later in a Notice of Hearing. Herrera’s argument that the immigration court lacked
jurisdiction due to the defective NTA is without merit. See United States v.
Bastide-Hernandez, 39 F.4th 1187, 2022 WL 2662044, at *5–6 (9th Cir. 2022) (en
banc); Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020); Karingithi v.
Whitaker, 913 F.3d 1158, 1158–59 (9th Cir. 2019).
2. The agency properly determined that Herrera did not suffer past
persecution. Herrera’s allegations that he suffered past persecution in Guatemala
were based entirely on threats. Although “credible ‘death threats alone can
constitute persecution,’” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019) (citation omitted), this is true only in “a small category of cases, and only
when the threats are so menacing as to cause significant actual ‘suffering or
harm,’” Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (citation omitted). The
alleged threats against Herrera did not rise to this level. Herrera alleges that he
received one express death threat from a man named Epifanio in 2001 or 2002 and
that two months later Epifanio brandished a weapon and unsuccessfully told
Herrera to get in his car. Herrera stated in a declaration that, while still in
Guatemala, he also received death threats by phone and saw anonymous persons
“who would make signs and gestures towards [him] to threaten [him].” Herrera
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further asserted that, after Epifanio died, various relatives of Epifanio relayed
threats against Herrera, who was then in the United States. These various
“unfulfilled threats” do not rise to the level of the “‘extreme’ case where threats
alone” constitute past persecution; they instead “constitute harassment rather than
persecution.” Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021)
(citations omitted); see also Sharma v. Garland, 9 F.4th 1052, 1064 (9th Cir.
2021).
With respect to the issue of future persecution, Herrera’s only argument is
that, by erroneously finding no past persecution, the agency wrongly placed on him
the burden to demonstrate a likelihood of future persecution. Because the agency
did not err in finding that Herrera had not suffered past persecution, this argument
necessarily fails. See 8 C.F.R. § 1208.16(b)(2).
Accordingly, the BIA properly upheld the denial of Herrera’s application for
withholding of removal.
3. We reject Herrera’s arguments that his due process rights were violated
in his removal proceedings. To establish a due process violation, an alien must,
inter alia, “demonstrate[] prejudice, which means that the outcome of the
proceeding may have been affected by the alleged violation.” Zamorano v.
Garland, 2 F.4th 1213, 1226 (9th Cir. 2021) (internal quotations omitted). “The
prejudice standard does not demand absolute certainty; rather prejudice is shown if
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the violation potentially affects the outcome of the proceedings.” Ching v.
Mayorkas, 725 F.3d 1149, 1156–57 (9th Cir. 2013) (simplified).
As an initial matter, we conclude that the record does not support Herrera’s
contention that the IJ’s conduct of the hearing exhibited a lack of impartiality.
Moreover, although the IJ could have done more to explain the requirements
of withholding of removal—particularly the meaning and significance of a
particular social group—any failure on this score was not prejudicial because
Herrera’s withholding claim fails on the separate and independent ground that he
failed to establish persecution. On that issue, Herrera has provided no basis to
conclude that any of the alleged procedural deficiencies—lack of counsel, lack of
explanation of the applicable requirements for relief, or failure to develop the
record—might have led to a different outcome. The record amply confirms that
Herrera understood the need to demonstrate persecution, and the evidentiary record
was adequately developed with respect to that issue. Herrera had submitted a
declaration describing the alleged threats, and he testified to these issues at some
length at his hearing. Herrera points to no additional evidence that he did not
already present to the agency regarding alleged persecution. Therefore, any
alleged procedural deficiencies were not prejudicial, and Herrera’s due process
arguments fail.
PETITION DENIED.
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