NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARLON FUENTE-ALVARADO, No. 20-73710 Petitioner, Agency No. A094-288-428 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 9, 2021** Pasadena, California Before: BERZON and BEA, Circuit Judges, and BENNETT,*** District Judge. Marlon Fuente-Alvarado (“Alvarado”), a native and citizen of Honduras, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying his application for withholding of removal and relief under the Convention * 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Against Torture (“CAT”). This Court has jurisdiction pursuant to 8 U.S.C. § 1252. We deny Alvarado’s petition as to his due process claim and his challenge to the agency’s adverse credibility determination. We grant Alvarado’s petition for review of the denial of his application for withholding of removal based on the classification of his conviction under California Penal Code § 422 as a particularly serious crime. We also grant Alvarado’s petition as to the denial of his Convention Against Torture claim and the denial of his motion to reopen proceedings. 1. Due Process: Alvarado’s claim that the Immigration Judge (“IJ”) was biased is without merit. Allegations of judicial bias are evaluated under “the constitutional due process requirement that the hearing be before a fair and impartial arbiter,” and are reviewed de novo. Vargas-Hernandez v. Gonzales, 497 F.3d 919, 921, 925 (9th Cir. 2007) (quoting In re Exame, 18 I&N Dec. 303, 306 (BIA 1982)). Alvarado claims that the IJ’s high rate of denials and aggressive cross-examination demonstrate unconstitutional bias. This argument is unavailing, as “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994); In re Exame, 18 I. & N. Dec. at 306 (“[A]n immigration judge’s rulings in the same or similar cases do not ordinarily form a basis upon which to allege bias.”). Additionally, as the Immigration and Nationality Act directs Immigration Judges to “cross-examine the alien and any witnesses,” 8 U.S.C. § 1229a(b)(1), “aggressive[]” and “harsh[]” questioning does not “rise to the 2 level of a due process violation,” Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003); Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998). 2. Credibility: Substantial evidence supports the IJ’s adverse credibility determination. An adverse credibility determination is a factual finding reviewed for substantial evidence, Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and is therefore “‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,’” Villavicencio v. Sessions, 904 …
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