NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

VUTORO SAUMAILAGI MUALEVU ,

Petitioner,

v. MERRICK B. GARLAND , Attorney General, Respondent. No. 20

- 73108 Agency No. A047

- 044

- 893

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 17 , 202 2 San Francisco, California Before: BYBEE, CALLAHAN , and COLLINS, Circuit Judges. Dissent by Judge BYBEE. Petitioner, Vutoro Saumailagi Mualevu, is a Fi jian citizen who seeks review of an order of the Board of Immigration Appeals (“BIA”) upholding a decision of an Immigration Judge (“IJ”) denying his request for deferral of removal under the Convention Against Torture. We have jurisdiction under § 242 of the Immigration and Nationality Ac t, 8 U.S.C. § 1252, and § 2242(d) of the Foreign Affairs Reform and Restructuring Act (“ FARRA ”) , 8 U.S.C. § 1231 note

. See Nasrallah v. Barr ,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAR 2 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

140 S. Ct. 1683, 1690

– 91 (2020). We deny the petition.
I Mualevu was admitted to the United States as a lawful permanent resident in
1999

. In 2009, Mualevu was convicted in California state court of one count of attempted murder in violation of California Penal Code §§ 187(a) and 664 and three counts of assault with a dead ly weapon in violation of California Penal Code § 245(a)(1) , and he was sentenced to a total of 1 3 years in prison

. In 2019, he was released from state prison into the custody of the Department of Homeland Security (“DHS”)

. During subsequent removal proc eedings, an IJ held that Mualevu’s convictions constituted “aggravated felonies” that rendered him subject to removal and also rendered him ineligible for asylum or withholding of removal

. 1 Mualevu has not challenged those rulings either in his subsequen t appeal to the BIA or in his petition for review in this court. The only aspect of his removal proceedings that Mualevu challenges in this court is the denial of his request for deferral of removal under the regulations

1 See United States v. Vasquez

- Gonzalez , 901 F.3d 1060, 1065

– 68 (9th Cir. 2018) (holding that Cal. Penal Code § 245(a)(1) is categorically a crime of violence and that a conviction under that section with a sentence of a least one year is an aggravated felony); see also 8 U.S.C. § 1158(b)(2)(A) (ii), (B)(i) (stating that an aggravated felony is a “particularly serious crime” that renders an alien ineligible for asylum); id . § 1227(a)(2)(A)(iii) (stating that an alien convicted of an “aggravated felony” is removable); id . § 1231(b)(3)(B)(ii) (stat ing that an alien convicted of a “particularly serious crime” is ineligible for withholding of removal).3

implementing the Convention Aga inst Torture. See FARRA § 2242(b) (authorizing issuance of regulations); 8 C.F.R. §§ 208.17, 1208.17. The factual predicate for that request was initially set forth in Mualevu’s written application. Mualevu claimed that his family members had participat ed in an unsuccessful coup against the Fijian government led by George Speight; that his cousin was killed by the Fijian army during the coup; and that , given his family’s participation in the rebellion, he feared being targeted if he were removed to Fiji

. In addition, Mualevu also alleged that he had “grow[n] up” in Fiji “with no father” and that , as a result, he faced “a lot of hating” from people in his “village” while growing up. 2 After Mualevu submitted his written application to the IJ, there were four in

court hearings concerning that application. At a hearing on August 5, 2019, the IJ acknowledged receiving the application. However, because Mualevu stated that he understood on ly a “little bit” of English and the court did not have a Fijian interpreter present, the IJ continued the hearing

. T wo weeks later , on August 19,
2019 , the court once again did not have a Fijian interpreter available. In nonetheless proceed ing to set a n evidentiary hearing on Mualevu’s application, the
IJ rep e atedly confirmed with Mualevu that he understood what that hearing would entail and that he needed to submit any documents before then

. However, w hen

2 As we note below, see infra at 8 , Mualevu ’s opening brief in this court has expressly abandoned any claim that he is entitled to relief based on such alleged mistreatment by villagers.4

the hearing date arrived on November 18, 2019 , t here was again no Fijian interpreter, and t he IJ stated t hat it had “been very difficult finding one .” T he IJ then took Mualevu’s “case off the calendar

. ” Finally, on December 20, 2019, Mualevu appeared in court for a further hearing

. At the outset of that hearing, the
IJ stated that, despite a “nationwide search,” the court had been unable to locate a Fijian interpreter. Noting that Mualevu had lived in the United States for many years and clearly had some facility in the English language, the IJ stat ed that she would go forward and would conduct the hearing in English. The DHS attorney noted for the record that, at the time of Mualevu’s initial arrival in the U.S. in 1999, he stated in his visa application that he spoke or read “Fijian” and “English. ” The IJ stated that, “as will be noted throughout these proceedings, [Mualevu] has resided in the United States for approximately 20 years and has demonstrated the ability to understand English.” The IJ also noted that his criminal files confirmed that he had some sufficient facility in the English language

— his interview with the police was conducted in English, and his therapy sessions in prison were conducted in English. The IJ further observed that, although Mualevu had assistance from another person in completing his written application, Mualevu had handwritten the application in English himself. Accordingly, the IJ proceeded with the evidentiary hearing in English. In explaining why he feared harm if he returned to Fiji, Mualevu first5

reiterated that he had felt hated by the villagers because he grew up without a father. The IJ asked Mualevu why he would still have this fear as a grown man, and Mualevu stated that he still felt that he would be treated differently. During examination by DHS counsel, Mualevu stated that he had been beaten by villagers twice when he was 16, and that, as a result of the first beating, he spent at least a month in the hospital. Mualevu said that he and his grandfather reported the beating to the police, b ut he stated that, because no one was killed, they did nothing about it. When asked whether he could move to another part of Fiji, Mualevu responded , in somewhat rambling terms, that he just wanted a “normal life” and to “get away from those negative peop le.” Mualevu was also asked about the claim in his written application that he would face retaliation due to his family’s involvement in Speight’s coup attempt.
Mu a levu stated that his cousin was killed by an “army sniper” outside the Fijian Parliament building, and that his cousin shared his last name of Mualevu. He stated that several uncles of his had also been involved in the coup attempt , and he did not know what had happened to them. He testified that he feared that , if he was removed to Fiji, th e Fijian government would “want me to pay the price for what my two uncles d id to them.” When asked to explain what his uncles had done, Mualevu stated that they “went around with the rebels and then shot a lot of the army’s people.” Mualevu also noted t hat his uncles had previously been in the6

military before they joined Speight’s rebel group. Mualevu also submitted for the record several English language articles providing additional details about Speight’s coup attempt in May 2000. When asked about relatives who still lived in Fiji, Mualevu stated that he had an aunt who with her “husband just move[d] from place to place.” He stated that they moved around a lot because they “fear[ed] for their own life.” When asked to explain, Mualevu said that his aunt and uncle had no “land to settle” and that the military “just do whatever they want to do.” Elaborating on the latter point, Mualevu stated, “They, by the power of guns, they take things. It’s a poor military, really poor, very greedy, and very agg ressive.” When later asked again about this aunt, Mualevu stated that she no longer lives anywhere near the village where he grew up but lives on a “different island” in another province of Fiji. The IJ den ied Mualevu’s application for deferral of remo val under the Convention Against Torture , and order ed him “removed to Fiji .” The IJ dismissed Mualevu’s reliance on what happened to his relatives , noting that “[a]nything that happened to his family happened more than a decade ago.” As for the beatings by the villagers, the IJ concluded that the Fijian police’s lack of response did not establish acquiescence. The IJ also stated that Mualevu could move to a “different part of Fiji” where he would be away from the villagers who had harmed him in the past.7

Mualevu timely appealed the IJ’s removal order to the BIA. While still in DHS detention, he submitted an 11

- page pro se brief in English (which was presumably prepared with assistance from others)

. The BIA upheld the IJ’s decision. T he BIA concluded that the lack of a Fijian interpreter at the merits hearing did not violate Mualevu’s due process rights because he “ha[d] not demonstrated that an interpreter in the Fijian language would have made a difference in the outcome” of his removal proceedings

. Specifically, the BIA reasoned that, “even if there was a nuance of language that he could not express as well in English ,” Mualevu had neither “identif[ied] any specific issues that were not adequately developed ,” nor did he cite any “specific examples t hat reasonably may have impacted the outcome” of the proceedings had a Fijian interpreter been provided to him

. Additionally, the BIA also found that, al though he had “objected to his hearing being conducted in English ,” Mualevu nevertheless “was able to intelligibly and adequately respond to the questions asked .” Turning to the merits of his claim for deferral of removal under the Convention Against Torture, t he BIA largely agreed with the IJ’s analysis. The BIA noted that the harm to his cousin and uncles occurred “over a decade ago.” The BIA also agreed that, although the Fijian police did nothing in response to the report of his beating as a teenager, such general ineffectiveness in policing did not establish acquiescence. The BIA further stated that Mualevu could move to8

another part of Fiji, away from the villagers. Finally, the BIA noted that there was country conditions evidence indicating that the Fi jian government had made effective efforts to control its security forces and to punish officials who committed abuses.
II In his opening brief, Mualevu expressly abandoned any claim that he is entitled to deferral of removal under the Convention Against T orture based on the alleged mistreatment he suffered from villagers when he was 16. Mualevu contends only that the agency erred in rejecting his claim for deferral of removal based on his uncles’ and cousin’s involvement in a failed coup attempt in Fiji i n 2000 , and his sole ground for challenging that determination is his assertion that he was denied due process by virtue of the failure to provide him with a Fijian interpreter at the merits hearing. We conclude that Mualevu has not shown that he was prej udiced by the lack of a Fijian interpreter and that the agency therefore properly denied deferral of removal. A due process violation warranting relief from an order of removal occurs when the alien “does not receive a ‘full and fair’ hearing and suffers p rejudice as a result of the inadequate proceedings .” Perez

- Lastor v. INS , 208 F.3d 773, 777 (9th Cir. 2000) (emphasis added )

. To show prejudice, the alien must demonstrate “ that the alleged violation affected the outcome of the proceedings .” Lata v. INS , 2049

F.3d 1241, 124 6 (9th Cir. 2000 ); see al s o id . ( “ A showing of prejudice is essentially a demonstration that the alleged violation affected the outcome of the proceedings; we will not simply presume prejudice

. ” (citation omitted) )

. Even assuming arguendo that the agency erred in failing to provide Mualevu with a Fijian interpreter at his merits hearing , we conclude that Mualevu failed to establish prejudice. Mualevu contends that the failure of the IJ to provide him with a Fijian i nterpreter is, in effect, a failure to fully develop the record and that therefore “we
may infer prejudice,” even “ in the absence of any specific allegation as to what evidence [Mualev u ] would have presented” had he been provided with a Fijian translator. Agyeman v. INS , 296 F.3d 871, 885 (9th Cir. 2002) (emphasis added). The analogy t o a failure to develop the record is apt , but we conclude that Mualevu has failed to show that , on this record, such an inference of prejudice is warranted. Mualevu was repeatedly asked “broad questions” about what his uncles did, and he was allowed to respond with whatever information he wanted to provide.
Hussain v. Rosen , 985 F.3d 634, 645 (9th Cir. 2021). Mualevu plainly understood those questions, because he provided responsive answers , in satisfactory English , concerning both what his uncles and cousins did during the 2000 coup and why Mualevu believed that he would be targeted by the Fijian government in retaliation for his relatives’ roles in the coup. In particular, Mualevu was specifically asked10

“why is the government after your uncles ?”, and he said that they “did some bad things” during the coup. When asked to elaborate as to what those bad things were, he said “They, most likely they shot s ome of them. They went around with the rebels and then shot a lot of the army’s people.” When Mualevu again referred to the “bad” things done by his uncles, he was again asked, “But do you know what it is? Do you know what your uncles did that’s got the Fiji government angry?” Mualevu replied, “They shot, they killed, some of the armies.” 3 In his appellate brief, Mualevu sets forth several additional details that he now claims that , if he had had an interpreter, he would have provided at the hearing. Mualevu has also supplied a declaration to support these assertions, and he asks us to supplement the record to include that declaration. The Government
argues (1) that we cannot consider the additional details sketched in Mualevu’s brief because those contentions were not raised before the agency , and (2) that we cannot supplement the record with a formal declaration, because we are required to

“ decide the petition only on the administrative record on which the order of

3 The dissent highlights one particular portion of the transcript in which Mualevu made a comment on this point that is hard to follow. See Dissent at 2. But the assessment of prejudice must be based on the record as a whole, and the transcript includes multiple other instances in which (1) Mualevu clearly underst ood that he was being asked what his uncles did and why the Fijian government would be after them; and (2) Mualevu was able to provide responsive information on these points in simple English. The other transcript excerpt quoted by the dissent relates only to Mualevu’s claim that he was harmed by villagers growing up, and

— as we have explained

— that claim has been expressly abandoned in this court. See supra at 8

.11

removal is based ,” see 8 U.S.C. § 1252 (b)(4)(A) . Mualevu contends that these
matters may properly be considered because the BIA itself has emphasized that, in connection with such due process claims, the alien should “identify specific issues that were not adequately developed” before th e IJ, and Mu a levu is complying with that instruction. We need not resolve this dispute . Even considering Mualevu’s articulation of the additional points that he claims he would have made at the hearing if he had had a translator , we conclude that an infe rence of prejudice is not warranted. See Hussain , 985 F.3d at 645 (considering the “testimony Hussain now claims he would have proffered” in concluding that he had failed to show prejudice in connection with his claimed due process violation)

. 4
In particular , Mualevu argues that he would have added the important detail that his uncles had specifically been assigned the task of assassinating then

Commodore Frank Bainimarama, who was a “leader in the Fijian army” at the time and who, until recently, w as the Prime Minister of Fiji. But g iven Mualevu’s demonstrated ability to communicate at least basic concepts in English, there is no basis to conclude that , when asked multiple questions about his uncles’ actions during the coup, Mualevu omitted this sp ecific detail due to the lack of a translator at his December 2019 hearing

. Mualevu obviously now thinks he should have added that his uncles were involved in a plot to kill a high government official , but

4 We therefore deny the motion to formally supplement the record.12

on this record there is no reason to believe that his failure to do so was due to the lack of a translator as opposed simply to his failure, as a pro se applicant, to think to add those additional details. See Hussain , 985 F.3d at 645 (holding that, where an alien is repeatedly asked open

- ended question s seeking to cover the key elements of the alien’s claim, arguments “t hat he would have provided different answers to more pointed questions are unpersuasive and do not establish prejudice ” in support of a due process claim based on failure to develop the record ). Mualevu also asserts that, had he had a translator, he would have provided the further detail that “shortly after the coup attempt,” the wife of one of Mualevu’s uncles was “arrested, jailed, and interrogated by government forces” ; that she was “ released but told that if she did not provide the government with the location of her husband, she would be arrested again and jailed until she revealed his location” ; and that she “fled her home” after being released, “has moved between three different lo cations, and continues to fear persecution by the government despite her husband’s .

. . continued absence.” As noted earlier, Mualevu did testif

y that his aunt had moved around in part because of fear of the military’s abuses , but he did not tie her fear specifically to her husband’s participation in the coup attempt. Once again, we see no basis to conclude that the omission of this detail was due to the lack of a translator as opposed to Mualevu’s failure to think to mention it. Moreover, the only specific claim of mistreatment of13

his aunt that he now asserts is one that occurred immediately after the coup, when the government was looking for his uncle. This additional detail would not affect the conclusion that “[a]nything that happened to his family” in Fiji “happened more than a decade ago.” Finally, Mualevu contends that, if he had had a translator, he would have explained his view that it is “well

- known” that Fiji’s security forces engage in torture and that they maintain “watch lists” of opponents and critics of the government. But the record already contained substantial documentary evidence concerning the shortcomings of the Fiji an gove rnment and the internal problems in Fijian society (some of it supplied by Mualevu himself), and we see no basis to conclude that the generalized opinions offered by Mualevu

— who had not lived in Fiji for 20 years

—

would have materially altered the balance o f the evidence on this subject. Accordingly, we co nclude that Mualevu has failed to establish prejudice due to the lack of a translator at his hearing. The agency therefore properly denied his request for deferral of removal under the Torture Convention
P ETITION FOR REVIEW DENIED .B YB EE, J., disse nting:

I would gra

nt Vutoro Sa

u m a ila gi M ua le vu’ s pe tition a nd re turn this c a se for

a “ full a nd fa ir he a ring” be fore the im m igra tion judge(“ IJ” ). Pe re z -Lastor v

. I.N .S. , 208 F.3d 773, 777 (9th C ir. 2000) (inte rna l quota tions a nd c ita tion om itte d).
The re c ord be low de m o n stra t e s tha t he wa s de nie d due proc e ss. M ua le vu is not flue n t in English a nd re quire d a

tra nsla tor during his
im m igra tion proc e e dings. During his first sc he dule d a ppe a ra nc e be fore a n IJ in
M a y 2019, M ua le vu re que ste d a Fijia n tra nsla t or a nd the IJ re s c he dule d him for a
la te r m a ste r c a le nda

r in orde r to provide for one

. In June a nd July 2019, M ua le vu

a ppe a re d be fore the IJ for initia l re m ova l proc e e dings whe re a Fijia n inte rpre te r

wa s provide d. At M ua l e vu’ s August 5, 2019 m e rits he a ring, the IJ c ontinue d his

c a se due to the la c k of a

n inte rpre te r, e xpla ining “ I don’ t wa n t to go through a

ny

m ore proc e e dings with y ou without a n inte rpre te r.” On August 19, 2019, the IJ

a ga in c ontinue d the c a se for la c k of a n inte rpre te r. The IJ c o ntinue d the c a se for a
fourth tim e in Nove m

be r 2019 for the sa

m e re a son a

nd a ssure d M ua le v u tha

t

“ we ’ l l wa it until we

ge t y ou [a

n inte rpre te r] , sir,” but indic a te d tha t she “ wa nt[e d]
to finish this c a se be fore the e nd of the y e a r.” In De c e m be r 2019, howe ve r, the IJ de c ide d to proc e e d with M u a le vu’ s m e rits he a ring de spite fa iling to se c u re a n inte rpre te r; she e xpla i ne d tha t a fte r “ a na tionwide se a

rc h . . . [t] h e re is no qua lifie d Fijia n inte rpre t e r.” B e fore re n de ring he r ora l de c ision, the IJ note d tha t the he a ring 

# FIL ED

MAR 2 2023
M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALSwa s c onduc te d in English without the a ssista nc e of a n inte rpre te r. She c ite d a s

e vide nc e tha

t M u a le vu “ doe s spe a k a

nd unde rsta

n d English” the following: his
birth c e rtific a te be ing in English; his a pplic a t ion for a

n im m i gra nt visa

whe re M ua le vu indic a te d “ som e fa c ility in English” ; his pre se nc e in the Unite d Sta te s sinc e 1999; his pe riod of c ustody in C a lifornia

prison; a nd the c ourt’ s pe riodic inquirie s into whe the r M ua l e vu unde rstood wha t wa s going on during the he a ring.
M ua le vu prote s te d re p e a te dly tha t “ I ne e d a tra nsla tor.”
De spite the IJ’ s c onfide nc e tha t M ua le vu unde rstood the proc e e dings, the
he a ring tra

nsc ript is re ple te with e xa m ple s de m onstra

ting tha t he la c ks flue n c y

in
the E nglish la

ngua ge a nd struggle d

to unde rsta

nd a nd re spond to que s tions in English. I’ ll provide two illustra tive e xa m ple s. W he n a ske d why

his unc le s ha d
shot som e m e m

be rs of the Fijia

n m ilita ry , M ua le vu a

n swe re d : W e ll, the y , it wa s, go a g a inst the a rm y a nd the y sta rte d ne ve r ge tting in the re be ls’ wa y . So, the y ha ve to m a ke the a rm

y to liste n, to pa

y a tte ntion. This is going to ha ppe n a ga in a

nd a ga i n if y o u guy s ne ve r c om e toge the r. And the y

ne v e r c om e toge the r. It wa s, the y sta rte d , a nd nobody

got found, nobody , a

nd it wa s a ll gone

. And, whe n a ske d wha

t would pre ve nt M ua le vu from living in a

diffe re nt a

re a tha n whe re he wa s origina lly

from

— whe re M ua le vu te s tifie d he ha d be e n be a te n a nd
fe a re d re turning—

he re sponde d: I just wa nt to be suc c e ssful in life , through ba d things. Just wa nt to be

2ha

ppy a nd e njoy

tha t I ha d a life . I wa

nt to be a be tte r pe rson. I wa

nt to be gre a t. I know the ne ga t ive s a nd the positive s, le a rne d m y le sson. I just wa nt to e njoy

life a nd be suc c e ssful a

nd ge t a wa y from those ne ga tive pe ople . Tha

t’ s it. I just wa

n t to live a norm a l life

. W e ha ve he ld tha

t whe n a n “ a lie n doe s not spe a k English flue ntly , the
pre s e nc e of a

c o m pe te nt inte rpre te r is c ritic a l to the fa irne ss of a he a ring.” K

otasz

v . I.N .S. , 31 F.3d 847, 850 n.2 (9th C ir. 1994). None the l e ss, the IJ proc e e de d
without a tra nsla tor a nd issue d a

de c ision pre dic a te d on M ua l e vu’ s te stim ony de spite his a

p pa re n t diffic ulty

in unde rsta

nding a nd re sponding to que stions in English. In doing so, the

IJ fa ile d to fully

de ve l op the re c o rd, a

nd M u a le vu wa s

e ithe r pre sum

ptive ly or spe c ific a lly

pre judic e d. S

e e Agy e man v . I.N

.S. , 296 F.3d 871, 885 (9th C ir. 2009) (to provide a full a nd fa ir he a

ring, a n IJ ha s a duty to fully
de ve lop the re c ord).
W he re , a s he re , the IJ fa i ls to fully de ve l op the re c o rd by re quiring a
pe titione r to proc e e d in English without a tra nsla tor, a pre sum p tion of pre

judic e should a pply . As we ha ve re c ogniz e d, a n a lie n is not re q

uire d to “ produc e a

re c ord
tha t doe s not e x ist.” A gy e man , 296 F.3d a t 885 (quoting Pe re

z-Lastor v . I.N

.S. , 208 F.3d 773, 782 (9th C ir. 2000)). “ R a the r, we m a y infe r pre judic e in the a

bse nc e of a ny spe c ific a lle ga tion a s to wha t e v ide nc e . . . would ha

ve [be e n] pre se n te d” if
the IJ ha d fulfille d he r c o nstitutiona l duty to fully de ve lop the re c ord. Id.

3Eve n a ssum ing a showing of spe c ific pre

judic e wa s ne c e s sa

ry in this c a se , M ua le vu’ s c la i m s a

re fa r from

frivolous a

nd the pe tition should be gra n te d. A due
proc e s s viola

tion c a use s pre judic e if “ the viola

tion pote ntia lly

a ffe c t s the outc om e of the proc e e dings.” A gy e man , 296 F.3d a t 884 (c le a ne d up). M ua le vu c o nte nds
tha t with the a ssista

n c e of a n inte rpre te r he would ha

ve provide d im

p orta nt de ta ils

a bout his Fijia

n fa m ily ’ s involve m e nt in a n a tte m p te d c oup, the gove rnm e nt’ s

a tte m pts to ge t inform a tion on those involve d from

othe r fa m ily

in Fiji, a nd the

wa y s in whic h the gove rnm e nt use s phy sic a l inte rroga tion ta c tic s. I would give
M ua le vu the opportunity

to provide a

fully de ve lope d re c ord for the IJ a nd the B IA to de te rm ine the m e rits of his c la im

.

4