NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEFA RAMIREZ-MATIAS DE Nos. 17-73492 MATIAS, et al., 19-70208

Petitioner, Agency Nos. A202-122-291 v. A202-122-292

A202-122-293

WILLIAM P. BARR, Attorney General,

Respondent. MEMORANDUM*

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

Submitted July 9, 2020** Seattle, Washington

Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOLTON,*** District Judge.

Josefa Ramirez-Matias De Matias (“Ramirez-Matias”) and her two children,

Rene Matias-Ramirez (“Rene”) and Sergio Matias-Ramirez (“Sergio”)

* 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 Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. (collectively, “Petitioners”),1 natives and citizens of Guatemala, petition for review

of a Board of Immigration Appeals (“BIA”) order dismissing: (1) their appeal from

an Immigration Judge’s (“IJ”) decision denying their applications for asylum,

withholding of removal, and protection under CAT; and (2) Ramirez-Matias’s

incompetent translation due process claim. See 8 U.S.C. §§ 1158(b)(1)(A),

1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c), 1208.18. Ramirez-Matias also petitions for

review of the BIA’s denial of her motion to reconsider and terminate under Pereira

v. Sessions, 138 S. Ct. 2105 (2018), and requests that we reconsider our decision in

Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019).

Our jurisdiction is governed by 8 U.S.C. § 1252. When the BIA conducts its

own review of the evidence and the law, “our review ‘is limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly adopted.’” Hosseini v.

Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204

F.3d 985, 990 (9th Cir. 2000)). We review denials of asylum, withholding of

removal, CAT relief, and all purely factual findings for substantial evidence. Wang

v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). The BIA’s factual findings “are

conclusive unless any reasonable adjudicator would be compelled to conclude to

1 Ramirez-Matias is the lead Petitioner. Rene’s and Sergio’s respective asylum claims are derivative of her claim. See 8 U.S.C. § 1158(b)(3)(A). Petitioners filed individual applications for Convention Against Torture (“CAT”) relief.

17-73492 2 19-70208 the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review due process violations in

immigration proceedings de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791

(9th Cir. 2003). We review the BIA’s denial of a motion to reconsider for abuse of

discretion. Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir. 2015).

I. Asylum & Withholding of Removal

Substantial evidence supports the BIA’s determination that Ramirez-Matias

has failed to establish that she is a member of the particular social group that she

alleges. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). Ramirez-Matias argues that

she has a well-founded fear of persecution on account of her membership in a

particular social group consisting of married women in Guatemala who are unable

to leave their relationship. See Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA

2014), overruled by Matter of A-B-, 27 I. & N. Dec. 316, 319–20 (U.S. Atty. Gen.

2018) (acknowledging particular social group comprised of “married women in

Guatemala who are unable to leave their relationship” where applicant had shown

inability to leave marriage based on repeated coercive acts by husband).

Even assuming Ramirez-Matias’s proposed social group were cognizable,

Ramirez-Matias has not demonstrated that she was unable to leave her husband,

Santos Matias Ramirez-Matias (“Santos”). The BIA highlighted the following facts

supporting this conclusion. Santos left for the United States in 2000 and returned to

Guatemala in 2013; during that thirteen-year period, he contacted Ramirez-Matias

17-73492 3 19-70208 once, in 2003. After Santos returned to Guatemala (for no more than two years), he

made no effort to meet with Ramirez-Matias. Finally, and most significantly given

Ramirez-Matias’s proposed social group, Santos informed Ramirez-Matias that if

she wanted a divorce, she would have to pay for it because he was going to “get

[himself] another woman.” We therefore agree with the BIA that Petitioners are

ineligible for asylum and withholding of removal.

II. CAT Protection

Substantial evidence supports the BIA’s conclusion that Petitioners have

failed to show that it is more likely than not that they would be tortured if returned

to Guatemala. See 8 C.F.R. § 1208.16(c)(2). While Petitioners have presented

evidence that they were whipped by members of a local patrol investigating the

murder of an elderly couple in Petitioners’ village, the harm was not so severe as to

rise to the level of torture. See 8 C.F.R. § 1208.18(a)(1) (limiting CAT relief to

torture “inflicted by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity”). We agree with the

BIA that Petitioners are ineligible for CAT protection.

III. Due Process Violation

We have long held that competent translation is fundamental to a full and

fair hearing. See He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003); Perez-Lastor v.

INS, 208 F.3d 773, 778 (9th Cir. 2000). To make out a due process violation based

17-73492 4 19-70208 on incompetent translation, Ramirez-Matias “must demonstrate that a better

translation likely would have made a difference in the outcome.” Gutierrez-Chavez

v. INS, 298 F.3d 824, 830 (9th Cir. 2002). We have previously identified three

types of evidence which tend to prove incompetent translation: (1) direct evidence

of incorrectly translated words; (2) unresponsive answers by the witness; and (3)

the witness’s expression of difficulty understanding what is said to her. Siong v.

INS, 376 F.3d 1030, 1041 (9th Cir. 2004).

The BIA concluded that Ramirez-Matias failed to establish a due process

violation because she failed to show that a better translation would have made a

difference in the outcome. The BIA noted that “misunderstandings that arose

during the proceedings were clarified before [Ramirez-Matias] moved forward

with her testimony.” Further, on appeal, Ramirez-Matias failed to identify any

aspect of her claim that she was unable to present before the IJ as a result of

translation issues.

Ramirez-Matias, however, maintains that the IJ violated her due process

rights when he did not allow the case to be continued in order to secure an

interpreter who spoke her specific Mam dialect.2 According to Ramirez-Matias,

“many questions [] went unanswered” due to inadequate translation, and the IJ

2 The interpreter denied any difficulty on his part in understanding Ramirez- Matias.

17-73492 5 19-70208 relied on such “discrepancies” in finding that Ramirez-Matias failed to articulate

her fear of persecution by Santos. While Ramirez-Matias concedes that “[t]here is

no direct evidence of incorrectly translated words,” she insists that the transcript

reveals “multiple instances of unresponsive answers.”

Leaving aside the issue of whether Ramirez-Matias provided unresponsive

answers during the IJ hearing, she has failed to show that a better interpretation

would have made a difference in the outcome of the IJ hearing. The sole instance

of prejudice cited by Ramirez-Matias—that the IJ noted her unresponsiveness and

discrepancies between her oral testimony and written statement—does not actually

demonstrate prejudice. Cf. Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000)

(noting that petitioner explicitly stated in brief how incompetent translation

impeded testimonial explanation of key claims and conclusions from written

application). Indeed, the IJ found Ramirez-Matias to be credible and emphasized

that he did not use the “fairly significant” discrepancies against her. Cf. Perez-

Lastor, 208 F.3d at 781 (“We have previously recognized that an adverse

credibility finding may result from a faulty translation.”).

Nevertheless, Ramirez-Matias argues that the IJ’s “skepticism” of her

testimony is “obvious.” We disagree. It is clear from the hearing transcript, as well

as his oral decision and order, that the IJ behaved as a “neutral fact-finder

17-73492 6 19-70208 interested in hearing [Ramirez-Matias]’s evidence.”3 Colmenar, 210 F.3d at 971.

We affirm the BIA’s ruling that Ramirez-Matias’s hearing satisfied due process.

IV. Karingithi v. Whitaker

The BIA did not abuse its discretion by denying Petitioners’ motion to

reconsider and terminate. Our decision in Karingithi forecloses Ramirez-Matias’s

argument that, under Pereira, the IJ lacked jurisdiction because her Notice to

Appear (“NTA”) lacked date and time information regarding her removal

proceedings. Karingithi, 913 F.3d at 1162. Still, Ramirez-Matias urges us to

reconsider our decision in Karingithi. We decline to do so. We are bound by that

decision in the absence of any clearly irreconcilable intervening higher authority.

See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc).

PETITION FOR REVIEW DENIED.

3 When asked at the conclusion of her direct examination if there was “anything else that [she] want[ed] to tell the Court?” Ramirez-Matias responded, “there might be some words that I didn’t know.” When pressed by the IJ to specify which words she “didn’t know,” Ramirez-Matias only said “[m]aybe there’s some words that I didn’t remember. I don’t remember.” See Perez-Lastor, 208 F.3d at 782 (“Finally, we recognize that, as a practical matter, an IJ may ameliorate the damage caused by an incompetent translation by asking for ‘[c]larification or repetition.’”).

17-73492 7 19-70208