CABRERA v. BARR (2019)

United States Court of Appeals, Ninth Circuit.

Jose Antonio CABRERA, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 16-71577

Decided: October 28, 2019

Before: CALLAHAN, OWENS, and R. NELSON, Circuit Judges. Barbara J. Darnell-Allen, Esquire, Counsel, Law Offices of Barbara J. Darnell, Los Angeles, CA, Beth Sarla Persky, Law Office of Beth S. Persky, Studio City, CA, for Petitioner Matthew Allan Spurlock, Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

MEMORANDUM **

Petitioner Jose Antonio Cabrera seeks review of a final administrative order denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Cabrera argues that (1) substantial evidence does not support the immigration judge’s adverse credibility finding; (2) substantial evidence does not support the agency’s determination that he is not entitled to CAT relief; and (3) the immigration judge’s conduct during his removal proceedings violated his right to due process. We deny the petition for review.

1. The immigration judge found Cabrera not to be credible because of significant inconsistencies in his story with respect to dates and other key events, and because his in-court testimony included compelling stories that were not referenced in his asylum application. Substantial evidence supports this finding because at least some of these inconsistencies and omissions go to the heart of Cabrera’s claim, which is governed by pre-Real ID Act standards. Zamanov v. Holder, 649 F.3d 969, 973–74 (9th Cir. 2011); Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003). Without credible testimony, Cabrera’s claims for asylum and withholding of removal fail. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

2. Even without the immigration judge’s adverse credibility finding, Cabrera failed to establish that it is more likely than not that he would be tortured if returned to El Salvador. Accordingly, substantial evidence supports the agency’s denial of CAT relief. Andrade v. Lynch, 798 F.3d 1242, 1245 (9th Cir. 2015).

3. Cabrera bases a due process claim on several comments made by the immigration judge that he contends show bias. But the comments in question merely show an immigration judge seeking to guide the proceedings in an appropriate and efficient way. Moreover, Cabrera has not shown that any of the immigration judge’s conduct “affected the outcome of the proceedings.” Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). We therefore reject Cabrera’s due process claim. Id.

The petition for review is DENIED.