NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURELIO GONZALEZ-ORTEGA, No. 19-70143
Petitioner, Agency No. A206-349-826
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 18, 2021**
San Francisco, California
Before: BRESS and BUMATAY, Circuit Judges, and RAYES,*** District Judge.
Aurelio Gonzalez Ortega, a citizen of Mexico, petitions for review of a Board
of Immigration Appeals (BIA) decision dismissing his appeal of an Immigration
*
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 Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
Judge (IJ) order denying his claims for withholding of removal and relief under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
We deny the petition in part and dismiss in part.1
1. We review de novo Gonzalez Ortega’s claims of due process violations.
See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). To establish a
due process violation in IJ proceedings, a petitioner must show both that the
proceeding was “so fundamentally unfair that [he] was prevented from reasonably
presenting his case,” and that he was prejudiced, “which means that the outcome of
the proceeding may have been affected by the alleged violation.” Colmenar v. I.N.S.,
210 F.3d 967, 971 (9th Cir. 2000) (citations and quotation marks omitted). Gonzalez
Ortega cannot make this showing.
While Gonzalez Ortega argues that the IJ should have used a Huichol
interpreter rather than a Spanish interpreter at the hearing, he has not shown that “a
better translation would have made a difference in the outcome of the hearing.”
Acewicz v. U.S. I.N.S., 984 F.2d 1056, 1063 (9th Cir. 1993). Gonzalez Ortega was
able to put forward a declaration describing his version of events, and the BIA
assumed Gonzalez Ortega was credible. Gonzalez Ortega has failed to show that
any defects in the translation at the hearing “prevented him from presenting relevant
1
Gonzalez Ortega originally also sought asylum but abandoned that claim before
the BIA. We thus do not consider it here.
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evidence,” id., or otherwise “prejudiced the outcome of the hearing,” Aden v. Holder,
589 F.3d 1040, 1047 (9th Cir. 2009).
Additionally, the record does not support Gonzalez Ortega’s contention that
the IJ failed to consider his expert testimony. The IJ performed a detailed review of
the expert testimony, accorded it full evidentiary weight, and analyzed it in the
context of Gonzalez Ortega’s particular circumstances.
The BIA also did not violate due process by considering the facts set forth in
a 2013 probation report. Gonzalez Ortega’s counsel did not object to admission of
the report at the hearing, and the record shows that Gonzalez Ortega had an adequate
opportunity to respond to it. Moreover, Gonzalez Ortega argues only that the
probation report impacted the IJ’s adverse assessment of his credibility. Because
the BIA assumed Gonzalez Ortega’s credibility, he has not shown prejudice.
2. Gonzalez Ortega has not shown he is entitled to withholding of
removal. The BIA determined that Gonzalez Ortega is ineligible for withholding of
removal because his 2013 conviction was a “particularly serious crime.” See 8
U.S.C. § 1231(b)(3)(B)(ii). We may review this decision only to determine “whether
the BIA applied the correct legal standard.” See Blandino-Medina v. Holder, 712
F.3d 1338, 1343 (9th Cir. 2013) (citation and quotation marks omitted).
In this case, the IJ and BIA considered appropriate factors in concluding that
Gonzalez Ortega’s domestic violence conviction was for a “particularly serious
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crime.” See Matter of Frentescu, 18 I. & N. 244, 247 (BIA 1982). We lack
jurisdiction to consider Gonzalez Ortega’s argument that the IJ improperly weighed
the evidence. Blandino-Medina, 712 F.3d at 1343. We accordingly dismiss this
portion of the petition. We therefore have no occasion to reach the BIA’s alternative
holding that Gonzalez Ortega failed to meet his burden of proof to establish that he
suffered past persecution or faces a clear probability of future persecution on account
of a protected ground.
3. Substantial evidence also supports the BIA’s determination that
Gonzalez Ortega failed show that he “more likely than not will be tortured if []he is
removed to [his] native country,” and therefore that he is not entitled to CAT relief.
Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). Gonzalez Ortega does not
claim past torture, and the record does not compel the conclusion that Gonzalez
Ortega is likely to be tortured or that the Mexican government would acquiesce in
his torture.
PETITION DENIED IN PART; DISMISSED IN PART.
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