Evelin Rodriguez-Herrera v. Merrick Garland

FILED NOT FOR PUBLICATION JUL 22 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EVELIN NOHEMI RODRIGUEZ- No. 20-72795 HERRERA; MAYCKOL ALEXIS MARTINEZ-RODRIGUEZ, Agency Nos. A208-453-268 A208-453-269 Petitioners, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 16, 2022** San Francisco, California Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges. * 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). Lead Petitioner, Evelin Nohemi Rodriguez-Herrera, and her minor son are citizens of Guatemala.1 They entered the United States on October 9, 2015 without admission or parole. An Immigration Judge (IJ) denied Rodriguez-Herrera’s application for asylum, withholding, and protection under the Convention Against Torture (CAT), and the Board of Immigration Appeals (BIA) affirmed. Now, Rodriguez-Herrera timely petitions on four grounds. First, she contends that the BIA acted as an improper factfinder when it held that the IJ’s initial confusion about the identity of the respondents constituted harmless error. Second, she asserts that the IJ was biased and failed to familiarize himself with the record, and, as a result, violated her due process rights. Third, she argues that adverse credibility determinations against her husband and her were not supported by substantial evidence. And fourth, she suggests that the agency failed to consider documentary evidence that would have established eligibility for relief, even disregarding the testimonial evidence. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We dismiss in part and deny the petition. Questions of law, including due process violations, are reviewed de novo. Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889 (9th Cir. 2018). We 1 Rodriguez-Herrera’s minor son is a derivative beneficiary on her asylum application. 2 review factual findings for substantial evidence. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020). Under this standard, we must uphold the findings unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). When applying this standard of review, we may not re-weigh the evidence, Gu v. Gonzales, 454 F.3d 1014, 1018–19 (9th Cir. 2006), and may only reverse if no reasonable factfinder could have reached the agency’s conclusion, Elias-Zacarias, 502 U.S. at 481. As long as the IJ has provided specific and cogent reasons for finding the applicant not credible, “only the most extraordinary circumstances will justify overturning [the agency’s] adverse credibility determination.” Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (quoting Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)). 1. Although both parties agree that the IJ erroneously stated that Rodriguez-Herrera’s husband, Wilder Martinez-Lopez, was a respondent in the case before him, the BIA correctly determined that this constituted harmless error, and this decision did not …

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