Wilbur Hernandez-Ortega v. Jefferson B. Sessions, III

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0661n.06 No. 17-3409 FILED UNITED STATES COURT OF APPEALS Nov 29, 2017 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk WILBUR HERNANDEZ-ORTEGA, aka ) Wilber Hernandez-Ortega, ) ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION JEFFERSON B. SESSIONS, III, Attorney ) APPEALS General, ) ) Respondent. ) BEFORE: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges. PER CURIAM. Wilbur Hernandez-Ortega, a.k.a. Wilber Hernandez-Ortega, petitions for review of an order of the Board of Immigration Appeals (BIA) that affirmed an immigration judge’s (IJ) denial of his application for withholding of removal and relief under the Convention Against Torture (CAT). Hernandez-Ortega is a native and citizen of El Salvador. He unlawfully entered the United States in September 2011, and he was removed the same month. Hernandez-Ortega unlawfully reentered the United States in December 2011, and he was ordered to appear before an immigration judge after an asylum officer determined that he had established a reasonable fear of persecution if removed to El Salvador. No. 17-3409 Hernandez-Ortega v. Sessions Hernandez-Ortega filed an application for withholding of removal and relief under the CAT, alleging that, if he were removed to El Salvador, gang members would persecute and torture him because of his Christian religion and his attempts to convince gang members to join his church. The IJ denied the application, concluding that Hernandez-Ortega’s testimony was not credible and that he failed to establish entitlement to relief. The BIA affirmed the IJ’s decision. On appeal, Hernandez-Ortega raises the following arguments: (1) the IJ’s adverse credibility determination was improper; (2) the BIA erred by failing to address one of his arguments; (3) the BIA erred by concluding that his corroborative evidence was insufficient to establish his entitlement to relief; and (4) he was denied due process when the IJ allowed the government to cross-examine him about his prior sworn statement without giving him adequate time to review the statement with his counsel. The BIA issued an independent decision, so we review the BIA’s determination, including any parts of the IJ’s reasoning referenced by the BIA. Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir. 2011). We review legal conclusions de novo and factual findings and credibility determinations for substantial evidence. Id. Under the substantial-evidence standard, administrative findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. Hernandez-Ortega first argues that the adverse credibility determination was improper because the IJ demonstrated antagonism toward him or engaged in impermissible speculation and conjecture in three instances. First, after Hernandez-Ortega testified that gang members threatened to kill him in 2008 (which implied that they would follow through on their threats if he returned), the IJ pointed out through questioning that the gang members did not kill him in -2- No. 17-3409 Hernandez-Ortega v. Sessions 2010 when they allegedly attacked him with a knife and a rock. Second, after Hernandez- Ortega’s counsel asked him about being stabbed with ...

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