Marisol Aguilar v. Merrick Garland

                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 17 2023
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MARISOL NAVARRO AGUILAR, AKA                    No.    19-70749
Rosa Marie Navarro,
                                                Agency No. A077-408-946
                Petitioner,

 v.                                             MEMORANDUM*

MERRICK B. GARLAND, Attorney
General,

                Respondent.

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

                              Submitted August 15, 2023**
                               San Francisco, California

Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,*** District
Judge.

      Petitioner Marisol Navarro Aguilar, a native and citizen of Mexico, petitions



      *
             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 John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her

application for withholding of removal based on an adverse credibility

determination. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the

petition.

      1.     The agency’s adverse credibility determination is reviewed for

substantial evidence, “[t]aking the totality of the circumstances into account.”

Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir. 2021). We may only reverse if

the record evidence compels the conclusion that Aguilar was credible. See, e.g.,

INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see also Shrestha v. Holder,

590 F.3d 1034, 1041–44 (9th Cir. 2010). Aguilar therefore bears “a substantial

burden” to show the BIA’s denial of relief on adverse credibility grounds should be

reversed. Li v. Garland, 13 F.4th 954, 959 (9th Cir. 2021).

      To the extent Aguilar argues that the BIA erred in affirming the adverse

credibility determination because it relied on inconsistencies in her testimony

concerning the nature and extent of abuse Aguilar suffered from her former

partner, the BIA explicitly noted that it did “not rely upon” Aguilar’s failure to

describe the abuse during her reasonable fear interview in affirming the

Immigration Judge’s (“IJ”) adverse credibility determination.

      Aguilar does not otherwise contest that the agency’s adverse credibility

determination was based on significant discrepancies in the narrative underlying


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her asylum claim. Instead, for the first time on appeal, she contends that her

reasonable fear interview, her asylum application, and an untranslated declaration

appended to her asylum application are unreliable and therefore cannot form the

basis of an adverse credibility determination. It appears that these arguments were

not exhausted before the BIA, but even if they were, the materials are not

inherently unreliable and could serve as a basis for the agency’s adverse credibility

determination. And because there is no argument the adverse credibility

determination is not supported by substantial evidence, we deny the petition on this

ground.

      2.     Claims of due process violations in immigration proceedings are

reviewed de novo, and the agency’s decision will be reversed on due process

grounds only if “(1) the proceeding was so fundamentally unfair that the alien was

prevented from reasonably presenting his case, and (2) the alien demonstrates

prejudice, which means that the outcome of the proceeding may have been affected

by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th

Cir. 2006) (internal quotation marks and citations omitted).

      Aguilar raises two due process challenges. First, she contends the IJ

violated her due process rights when it denied a continuance so Aguilar’s expert

witness could testify regarding the potential harm Aguilar would face if forced to

return to Mexico. But as the BIA rightly noted, the testimony Aguilar sought from


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her expert “would not change the ultimate conclusion” that she was not credible,

and therefore the IJ’s denial of the requested continuance could not have affected

the outcome of the proceedings. Aguilar therefore fails to show she suffered

prejudice as a result of this alleged due process violation. See id.

      Second, Aguilar contends her due process rights were violated when the IJ

failed to issue a ruling on her request for subpoenas ad testificandum. The IJ,

however, declined to issue the subpoenas because Aguilar failed “to show

affirmatively that . . . she ha[d] made diligent effort, without success,” to produce

the witnesses without resort to a subpoena as required by 8 C.F.R. § 1003.35(b).

The IJ gave Aguilar an opportunity to submit requests including this information,

but Aguilar failed to do so. Because the IJ’s refusal to issue the requested

subpoenas was in accordance with the regulations, Aguilar’s second due process

claim also fails.

      PETITION FOR REVIEW DENIED.




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