NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0207n.06 No. 15-3245 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DOMINGO AJANEL-GONZALEZ, Petitioner,

v. JEFF B. SESSIONS, Attorney General, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS

BEFORE: DAUGHTREY, MOORE, a nd GIBBONS, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Domingo Ajanel-Gonzalez, a Guatemalan native and citizen, seeks review of a Board of Immigration Appeal s (the Board) decision denying his application for asylum, withholding of re moval, and relief under the Convention Against Torture (CAT). Because Ajanel-G onzalez is not eligible for such relief and because he received due process before the immigra tion judge, we deny his petition.
I. Domingo Ajanel-Gonzalez is a native and citizen of Guatem ala who first came to the United States in January 2001. In July 2008, he re ceived a Notice to App ear, asserting that he was subject to removal under Section 212(a)(6)(A)( i) of the Immigrati on and Nationality Act (INA), 8 U.S.C. § 1182, as an alien present in the United States who had not been admitted or paroled. Ajanel-Gonzalez conceded removability, but sought asylum, withholding of removal, and relief under the CAT, or, al ternatively, voluntary departure.No. 15-3245, Ajanel-Gonzalez v. Sessions

- 2 - At a September 2012 hearing, Aj anel-Gonzalez identified his race (Mayan), nationality (Guatemalan), political opinion (“ adverse to joining gangs”), a nd membership in a particular social group (“[y]oung men who are opposed to join ing gangs and are in danger or attacked as a consequence”), as his grounds for relief. AR 112–14. As hi s attorney, Forhard Sethna, explained these grounds, the immigration judge instructed Sethna not to “argue [his] case” because the judge was asking only that Sethna “i dentify the various prot ected characteristics under which [Ajanel-Gonzalez] was claiming asylum.” 1 AR 113. When Sethna continued to expand on his responses, the judge cut him off. And in response to the identified social group, the judge stated, “Pretty much an S-E-G- particular group, yes?” 2 AR 114. At the hearing, Ajanel-Gonzalez told the judge that he was born in Aldea Chex, Guatemala in 1974 and that he identified as a memb er of the Mayan race. He left Guatemala in September 2000 and traveled to Mexico, where he liv ed until he came to the United States in January 2001. Sethna then asked Ajanel-Gonzalez about his children, specifi cally those living in the United States. The judge interrupted Sethna, stating that such testimony would not help to decide the case and instructing counsel to move on. When asked later about his family, AjanelGonzalez testified that he had several children and two sister s still living in Guatemala. Ajanel-Gonzalez testified that he had lived in Ohio for the past five years and was employed by the Gerber Company. When Set hna asked additional questions about his employment, the government objec ted. The judge sustained th e objection despite Sethna’s explanation that employment was releva nt to his client’s credibility. In his testimony, Ajanel-Gonzalez identified two incidents that he believed constituted past persecution. First, he stated that his fath er was killed by rebel fighters during a civil war

1 These exchanges between Sethna and the judge form the basis of Ajanel-Gonzalez’s due process claim. 2 We interpret this as a reference to Matter of S-E-G- 24 I. & N. Dec. 579 (B.I.A. 2008), in which the Board refused to recognize the proposed social group of those opposed to gangs.No. 15-3245, Ajanel-Gonzalez v. Sessions

- 3 - when Ajanel-Gonzalez was eight years old. This occurred while his father was protecting their village as a member of a civil-defense force. Second, Ajanel-Gonzalez testified about an incident in September 2000 where he was threat ened by the Kichechol—a Guatemalan gang. He claimed that gang members approached him, as ked him for money, and threatened him with a knife, but that he was able to ge t away safely and was not injured during th e encounter. He did not believe that the police had acted in response to his report about this incident. It was shortly thereafter that Ajanel-G onzalez left Guatemala. Ajanel-Gonzalez proceeded to testify that he was scared of being tortured should he return to Guatemala because the gangs are larger than when he left. He believed that he would be kidnapped or killed under the mistaken assump tion that living in the United States had made him wealthy. He indicated that these beliefs st emmed, in part, from what his relatives living in Guatemala had told him about gang activity in his villa ge. He also testified that his oldest son in Guatemala was being recruited by gang members and had been asked for money because the gang members believed that Ajanel-Gonzalez wa s wealthy from living in the United States. Finally, Ajanel-Gonzalez discussed his delay in filing an application for asylum. He stated that he was not aware of the applica tion and could not read or write in Spanish or English when he arrived in the United States , making it difficult for him to secure legal assistance. At this point, Set hna again asked Ajanel-Gonzalez about his employment. When the government objected, Sethna again argued that he was attempting to buttress Ajanel-Gonzalez’s character and credibility. The judge again found that the ques tions were not relevant, stating: Well, I think we’re talking about nondiscretionary forms of relief here because I don’t think the client has shown any excepti on to the one-year filing deadline. So we’re talking about nondiscretionary forms of relief, so I agree, that’s not relevant. Sustained. AR 142. Shortly thereafter, Aj anel-Gonzalez rested his case.No. 15-3245, Ajanel-Gonzalez v. Sessions

- 4 - After hearing argument from both parties, th e immigration judge denied all relief. The judge found Ajanel-Gonzalez to be a credible witne ss. With respect to Ajanel-Gonzalez’s specific requests for relief, the judge found that his asylum claim was time barred because he did not file within one year of his arrival and b ecause there was no legal support for the proposition that Ajanel-Gonzalez could show extraordinary circumstances because of a language barrier. The judge also held that even if Ajanel-Gonzalez’s applic ation was timely, his claim still failed because he had not esta blished past persecution or a well-founded fear of future persecution. The judge held that the death of his father did not constitute persecution. And even if it did, the judge recognized that there was no nexus between his father’s death and AjanelGonzalez’s alleged protected charac teristics. The judge also heldthat the attempted robbery was not past persecution. Alternatively, the judge f ound that there was no evidence to show a nexus between the robbery and one of Ajanel-Gonzalez’s claimed protec ted characteristics. With respect to future persecution, the judge found no evidence to support a well-foun ded fear of persecution on account of Ajanel-G onzalez’s Mayan ancestry, Guat emalan citizenship, political opinion, or the proposed social group of “young men who are opposed to joining gangs.” AR 58–59. Additionally, the judge recognized that a lthough Ajanel-Gonzalez testified about a fear of persecution on account of others perceiving him to be wealthy, such a group was neither identified nor legally cognizable. For these same reasons, the judge held that Ajanel-Gonzalez was not eligible for withholding of removal. Finally, the judge rejected Ajanel-Gonzalez’s request for CAT relief because AjanelGonzalez had not provided any evidence that he w ould be tortured by, or at the acquiescence of, a public official in Guatemala. The judge note d that Ajanel-Gonzalez’s fear of being killed “seem[ed] to be primarily speculation.” AR 54.No. 15-3245, Ajanel-Gonzalez v. Sessions

- 5 - Ajanel-Gonzalez appealed to the Board. He first argued that his la nguage barrier, age, education, and difficulty acclimating to the United States constituted “exceptional circumstances” that excused his de lay in filing an asylum applica tion. Next, he argued that the immigration judge “pre-determined” his asylum cl aim before he had finished testifying and that the judge cut off counsel more than fifteen time s during his testimony. As to his CAT claim, he argued that the judge had discounte d his claim of police inaction, erre d by dismissing his fear as speculative, and failed to recognize that the Guatemalan government was complicit in torture by private entities. With respect to withholding of removal, Ajanel-Gonzalez argued that he had satisfied the persecution standard “bas ed on a combination of factors.” The Board affirmed. It agreed that Ajanel -Gonzalez’s asylum app lication was not timely and that he had not established an exception to the deadline on account of “profound language barriers.” The Board distinguished Matter of Y-C- , 23 I. & N. Dec. 286 (B.I.A. 2002), noting that Ajanel-Gonzalez was significantly older and ha d waited much longer to file his application. Alternatively, the Board found that Ajanel-G onzalez did not qualify for asylum because he had not suffered past persecution and lacked a well-founded fear of fu ture persecution. With respect to past persecution, the Board held that hi s father’s death did not qualify because AjanelGonzalez had not been threatened or harmed. It also found that the attempted robbery did not qualify because Ajanel-Gonzalez was not physically harmed and had escaped. The Board refused to find a likelihood of future persecuti on because his family had lived in Guatemala without suffering significant harm, the guerillas had disbanded, and a fear of widespread violence was not enough to establish future pe rsecution. Because the Board found that AjanelGonzalez did not qualify for asylum, it also concluded that he coul d not meet the higher standard for withholding of removal. And the Board reje cted his CAT claim, agreeing that he had notNo. 15-3245, Ajanel-Gonzalez v. Sessions

- 6 - shown that it was more likely than not that he would be tortured by the government, or at its acquiescence, upon his return. Finally, the Board rejected Aj anel-Gonzalez’s due process arguments, finding no support in the record for his claim that the immigration judge had predetermined his asylum claim. The Board interpreted the judge’s statement as an “hon est assessment of the state of the record” and recognized that Ajanel-Gonzalez c ould have presented further evid ence to support his claim. The Board found that the judge’s interruptions “w ere not excessive and were intended to focus questioning on issues relevant to [Ajanel-Gonzalez’s] claim for asylum.” And because the judge considered the asylum claim on the merits, th e Board found that Ajanel-Gonzalez could not show prejudice by the judge’s comments or conduct. Ajanel-Gonzalez filed a timel y petition for review.
II. Where the Board reviews an immigration judg e’s decision and issues a separate opinion, we treat that opinion as a final agency determination. Sanchez-Robles v. Lynch , 808 F.3d 688, 691–92 (6th Cir. 2015) (citation omitted). In su ch cases, we review the immigration judge’s decision to the extent the Board adopted the judge’s reasoning. Id. at 692. We consider allegations of due proce ss violations during removal hearings de novo

. Hassan v. Gonzales , 403 F.3d 429, 435 (6th Cir. 2005). We review other questions of law de

novo , but grant “substantial deference” to the Board’s interpretation of the INA and its accompanying regulations. Morgan v. Keisler , 507 F.3d 1053, 1057 (6th Cir. 2007). Findings of fact, including credibility determinations, ar e reviewed for substantial-evidence and are “conclusive unless any reasonable ad judicator would be compelled to conclude to the contrary.” Marouf v. Lynch , 811 F.3d 174, 180 (6th Cir. 2016) ( quoting 8 U.S.C. § 1252(b)(4)(B)).No. 15-3245, Ajanel-Gonzalez v. Sessions

- 7 - III. Under the INA, an asylum applicant mu st “demonstrate[] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An exception exis ts if an applicant establishes “extraordinary circumstances relating to the delay in filing an application.” Id. § 1158(a)(2)(D). But “[n]o court shall have jurisd iction to review any determinati on of the Attorney General under [§ 1158(a)(2)].” Id. § 1158(a)(3). This provi sion bars our review of “d iscretionary or factual questions” but not “constitutional claims or matters of statutory construction.” Vincent v. Holder , 632 F.3d 351, 353 (6th Cir. 2011). The determ ination of extraordinary circumstances under § 1158(a)(2) is a di scretionary question. Fisenko v. Lynch , 826 F.3d 287, 290 (6th Cir. 2016) (citing Vincent , 632 F.3d at 353). Ajanel-Gonzalez did not appl y for asylum until eight year s after arriving in the United States and the Board found that he failed to show extraordinary circumstan ces. Ajanel-Gonzalez now argues that the Board faile d to “recognize and acknowledge the exceptional circumstances” that prevented him from filing a timely application. Because we lack jurisdiction to review such a discretionary decision, see Fisenko , 826 F.3d at 293, we cannot consider his asylum claim.
IV. To qualify for withholding of removal, Ajanel-G onzalez must show that it is more likely than not that he will be pers ecuted in Guatemala “on account of race, religion, nationality, membership in a particular soci al group, or politic al opinion.” Umana-Ramos v. Holder , 724 F.3d 667, 674 (6th Cir. 2013) (quo ting 8 U.S.C. § 1231(b)(3)(A)); see also Marouf , 811 F.3d at 179. If he can show past persecution on account of a protected ground, we presume there will be future persecution. 8 C.F.R. § 208.16(b)(1)(i ). Without past persecution, however, Ajanel-No. 15-3245, Ajanel-Gonzalez v. Sessions

- 8 - Gonzalez must show that it is more likely than not that his life or freedom will be threatened upon return because of a protected ground. Id. § 208.16(b)(2). Persecution is “the infliction of harm or sufferi ng . . . to overcome a characteristic of the victim.” Khalili v. Holder , 557 F.3d 429, 436 (6th Cir. 2009) (citation omitted). It “requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, orsignificant depriva tion of liberty.” Mikhailevitch v.
INS , 146 F.3d 384, 389 (6th Cir. 1998). Actions th at “cross the line from harassment to persecution include: detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveill ance, beatings, or torture.” Haider v. Holder , 595 F.3d 276, 286–87 (6th Cir. 2010) (citation omitted). The Board concluded that Ajanel-Gonzalez’s withholding-of-remova l claim necessarily failed because he had not “demonstrate[d] past persecution or a well-founde d fear of [future] persecution in Guatemala.” AR 4. On app eal, Ajanel-Gonzalez alleges persecution only on account of the social group including those “oppos ed to gangs.” He does not challenge the denial of his previously-claimed grounds of race, nationality, or political opinion. Accordingly, we treat them as waived. Shkabari v. Gonzales , 427 F.3d 324, 327 n.1 (6th Cir. 2005). Ajanel-Gonzalez asserts three specific claims of persecution: (1) past persecution on account of his father’s death; (2 ) past persecution on account of a single incident of attempted robbery by members of a local gang; and (3) future persecution because of what will be “imposed on him and his family members in Guatemala by the gangs that operate[] with impunity.” The Board was correct to find that n one of these claims c onstituted persecution. Although tragic, Ajanel-Gonzalez’s experience with his fathe r’s death did not constitute past persecution. First, there is no nexus between his father’s death at the hands of guerillaNo. 15-3245, Ajanel-Gonzalez v. Sessions

- 9 - fighters and Ajanel-Gonzalez’s opposition to gangs . If anything, Ajanel-Gonzalez’s protected ground would have to be an imput ed political opinion. He has not made this argument on appeal and there is no evidence in the record to this e ffect. Second, there is substantial evidence and legal precedent to support the Board’s finding th at Anjanel-Gonzalez was neither harmed nor threatened by the guerillas. Aj anel-Gonzalez did no t testify as to any physical harm or harassment that he had suffered. And the death of a family member at the hands of guerilla fighters, without more, does not establish persecution. See Zacarias v. Gonzales , 232 F. App’x 458, 462–63 (6th Cir. 2007); see also Akhtar v. Gonzales , 406 F.3d 399, 405–06 (6th Cir. 2005). The Board was also correct to hold that the attempted robbery did not constitute past persecution. A single attack or robbery by gang members doe s not amount to persecution. See Cano-Huerta v. Holder , 568 F. App’x 371, 373 (6th Cir. 2014) (per curiam). Ajanel-Gonzalez was not harmed by his attackers and he was ab le to escape, making the attempted robbery nothing more than a threat. This , alone, precludes the conclusion that the robbery constituted persecution. See Mikhailevitch , 146 F.3d at 389; see also Thapa v. Holder , 572 F. App’x 314, 321 (6th Cir. 2014) (home and office invasions wh ere neither the petitioner nor his family are harmed do not constitute persecution); Moran-Quinteros v. Holder , 352 F. App’x 974, 978 (6th Cir. 2009) (“[U]nfulfilled threats—without phy sical harm—do not constitute persecution.”). Additionally, there is substa ntial evidence to support the Board’s finding that AjanelGonzalez did not establish a well-founded fear of future persecution from gang members. There are several problems with his asse rtion of future persecution by gang members. First, there is no testimony in the record to indi cate that either Ajanel-Gonzalez or his son were subject to anything more than harassment by gangs. There is no evidence that he has been or will be harmed. See Mikhailevitch , 146 F.3d at 389. Second, his other family members have been ableNo. 15-3245, Ajanel-Gonzalez v. Sessions

- 10 - to live in Guatemala without suffering and a genera l fear of violence cannot establish a claim for persecution. Umana-Ramos , 724 F.3d at 670. Third, a generalized opposition to gangs is not a cognizable social group. Id. at 673–74. Finally, even when we consider Ajanel-Gonzalez’s claims of persecution in the aggregate, there is no basis on which to gran t him relief. He has failed to tie any fear of future harm to a prot ected characteristic that we have recognized. Accordingly, we find that the Board’s decisi on was consistent withour prior decisions and that there was substantial evidence to suppor t its conclusion.
V. Relief under the CAT is available if Ajanel-Gon zalez can establ ish that it is more likely than not that he would be tortured if retu rned to Guatemala. 8 C.F.R. § 208.16(c)(2); see Bi Qing Zheng v. Lynch , 819 F.3d 287, 294 (6th Cir. 2016). This requires a “ particularized threat of
torture.” Cruz-Samayoa v. Holder , 607 F.3d 1145, 1155 (6th Cir. 2010). Generalized allegations, alone, are not enough. Melchor-Reyes v. Lynch , 645 F. App’x 381, 386 (6th Cir. 2016) (citing Cruz-Samayoa , 607 F.3d at 1156). Torture “entail[s] the intentional infliction of severe mental or physical pain upon an individual ‘by or at the instigat ion of or with the consent or ac quiescence of a public official or other person acting in an official capacity.’” Alhaj v. Holder , 576 F.3d 533, 539 (6th Cir. 2009) (quoting 8 C.F.R. § 208.18(a)(1)). “The CAT doe s not afford protecti on to torturous acts inflicted by wholly private actors.” Zaldana Menijar v. Lynch , 812 F.3d 491, 501 (6th Cir. 2015). In evaluating a claim for relief under the CAT, an adjudicator must consider: [A]ll evidence relevant to the possibility of future torture . . . , including, but not limited to: (i) Evidence of past torture inflicted upon the app licant; (ii) Evidence that the applicant could relocate to a partof the country of removal where he or she is not likely to be tortured; (iii) Evid ence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and (iv) Other relevant information regarding condit ions in the country of removal.No. 15-3245, Ajanel-Gonzalez v. Sessions

- 11 - 8 C.F.R. § 208.16(c)(3); see Mapouya v. Gonzales , 487 F.3d 396, 414–15 (6th Cir. 2007). The immigration judge concluded that Ajan el-Gonzalez “presented literally no evidence to prove that it is more likely than not that he would be subjected to torture in Guatemala.” AR 81. The Board affirmed on the basis that Aj anel-Gonzalez had not met his burden to qualify for CAT relief. On appeal, Ajanel-Gonzalez asse rts that it was error to dismiss his fears as speculative given the testimony that he and his son had been threatened by gang members. He also argues that the record establishes thatthe Guatemalan government is willfully blind to gang violence and the “plight of the . . . Mayan people.” There is substantial evidence to support the Board’s decision. When asked why he feared torture in Guatemala, Ajanel-Gonzalez testified that “[g]ang members ar e really bigger now,” and that “they would think I have a lot of money, so they’re going to kidnap me, kill me and kill my entire family.” AR 134. As to acquiescence, he testified only that he did not believe that the police had responded to his report of attempted robbery and reports on country conditions in Guatemala. For the same reasons his past experiences in Guatemala do not constitute persecution, see Part IV, supra , he has not established any evidence of past torture. His fear of gang violence upon returning to Guatemala sounds in broad, general terms, not the particularized threat that this court requires. See Cruz-Samayoa , 607 F.3d at 1155–56. Accordingly, substantial evidence supports the Board’s findi ng that Ajanel-Gonzalez did not establish a sufficient likelihood of torture upon his return to Guatemala to qualify for CAT relief.
VI. “Fifth Amendment guarantees of due process extend to aliens in deportation proceedings, entitling them to a full and fair hearing.” Huicochea-Gomez v. INS , 237 F.3d 696, 699 (6th Cir. 2001). We require an alien to establish both “erro r and substantial prejudice” to establish a dueNo. 15-3245, Ajanel-Gonzalez v. Sessions

- 12 - process violation. Garza-Moreno v. Gonzales , 489 F.3d 239, 241 (6th Cir. 2007) (citation omitted). Error occurs when “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Hassan v. Gonzales , 403 F.3d 429, 436 (6th Cir. 2005) (quoting Ladha v. INS , 215 F.3d 889, 904 (9th Cir. 2000)). Although the immigration judge is “afforded broad discretio n to control the manner of interro gation in order to ascertain the truth,” Hassan , 403 F.3d at 436 (quoting Mikhailevitch , 146 F.3d at 391), an alien is “entitled to an unbiased arbiter who has not prejudged [his] claims,” Bi Qing Zheng , 819 F.3d at 297 (quoting Ahmed v. Gonzales , 398 F.3d 722, 725 (6th Cir. 2005)). Due process is violated when the judge acts not as a “neutral fact-finder intere sted in hearing the [ali en]’s evidence” but “as a partisan adjudicator seeking to intim idate the [alien] and his counsel.” Hassan , 403 F.3d at 436 (second alteration in original) (quoting Reyes-Melendez v. INS , 342 F.3d 1001, 1007 (9th Cir. 2003)). However, we have previously allowed an i mmigration judge to use “brusque,” “inartful,” or “terse” language, Hassan , 403 F.3d at 436; Mackie v. Gonzales , 166 F. App’x 815, 817 (6th Cir. 2006); Prifti v. Mukasey , 307 F. App’x 900, 906 (6th Cir. 2009), to express reasonable frustration, skepticism, or sarcasm, Aichai Hu v. Holder , 335 F. App’x 510, 515–16 (6th Cir. 2009); Pepaj v. Mukasey , 307 F. App’x 891, 897 (6th Cir. 2009), and to “repeatedly [take] over the questioning” of a witness, Martini v. Mukasey , 314 F. App’x 819, 824 (6th Cir. 2008); see also 8 U.S.C. § 1229a(b)(1) (providing immigration j udges with the authority to “interrogate, examine, and cross-examine the alien and any witnesses”). Prejudice requires an alien to show that the violation “led to a substantially different outcome from that which would have occurre d in the absence of these violations.” Abdallahi v.No. 15-3245, Ajanel-Gonzalez v. Sessions

- 13 - Holder , 690 F.3d 467, 472 (6th Cir. 2012) (citation omitte d). We “need not address the merits of a claim if there is no dem onstration of prejudice.” Graham v. Mukasey , 519 F.3d 546, 549 (6th Cir. 2008).
A. Ajanel-Gonzalez first argues that his due pro cess rights were violat ed because the judge “predetermined” his asylum claim as illustrated by the following exchange:
MR. SETHNA TO RESPONDENT Q. Now you said that you work at Gerber Poultry, correct? A. Yes. Q. Now, how do you get paid by Gerber Poultry? [GOVERNMENT COUNSEL] TO JUDGE Objection, relevance.
JUDGE TO MR. SETHNA Mr. Sethna?
MR. SETHNA TO JUDGE Your Honor, it’s important to unde rstand how he’s getting paid and whether he’s paying taxes and so on. I can get all of his burden to show he has good moral character, that he’s got some credibility and that, of course, factors in th e Court’s decision.
JUDGE TO MR. SETHNA Well, I think we’re talking about nondi scretionary forms of relief here because I don’t think the client ha s shown any exception to the one-year filing deadline. So we’re talking about nondiscretionary forms of relief, so I agree, that’s not relevant. Sustained.
MR. SETHNA TO JUDGE Then Your Honor, I have no fu rther questions at this time. AR 142. Ajanel-Gonzalez argues that the judge “deci ded that asylum relief was definitively off the table without considering any of the testim ony that would have followed” and was acting with “haste, bias . . . and poor judgment” in excluding evidence of extr aordinary circumstances to excuse the one-year d eadline “at such an early and prematur e point in the direct examination.”No. 15-3245, Ajanel-Gonzalez v. Sessions

- 14 - This exchange, however, occurred after Sethnahad elicited testimony as to why AjanelGonzalez had not filed a timely asylum applica tion. To the extent that the judge was commenting on the strength of the claim, it was w ithin his discretion to express skepticism based on that testimony. And the judge’s comment—in the course of ru ling on an unrelated objection about the relevance of credib ility and moral-character evid ence—certainly did not prohibit further testimony as to extraordinary circumstances. Even if there was error, Aj anel-Gonzalez has not suggested any prejudice other than his claim that the judge’s statement chilled counsel’s questions and hi s responses. Ajanel-Gonzalez had already had an opportunity to testify about the facts underlyi ng his extraordinarycircumstances argument. This testimony was re ferenced by both the immigration judge and the Board in determining whether Ajanel-Gonzalez had established such circumst ances. It is unclear what other testimony he would have offered to change this result. The burden is on AjanelGonzalez to establish prejudice and he has not suggested any additional testimony that he would have given absent the judge’s comment. Furthermore, the Board rejected Ajanel-Gonz alez’s asylum claim on the merits because he failed to establish persecution. See Part IV, supra . The exchange at issue here came well after Ajanel-Gonzalez’s testimony about alleged persecution. And because testimony related to persecution is also relevant to withholding of removal—a form of nondiscretionary relief—the judge’s comments cannot be construed as chi lling or preventing additional testimony as to persecution which would support an asylum claim. This precludes any finding of prejudice on Ajanel-Gonzalez’s prejudgment claim.No. 15-3245, Ajanel-Gonzalez v. Sessions

- 15 - B. Ajanel-Gonzalez also argues that the immigration judge “demonstrated significant, egregious, and prejudicial judicial bias” that prevented him from receiving a full and fair hearing. He points to an exchange between counsel and the judge prior to his testimony about the grounds on which he was seeking relief. He also suggests that comments by the judge during his testimony indicate bias, such as questions to counsel about how testimony would help the judge to decide the asylum claim, instructions for couns el to move on to other topics, and the comment, “You ask him the questions—the questions you wantto ask, if they’re not going to help me decide the case, I’ll let you know.” AR 123. He claims that this constituted “restrictive factfinding,” chilled his attorney’s questions, ch illed his testimony, and created a biased environment. A terse or frustrated exchange, however, does no t constitute bias so long as it “does not reveal an underlying bias in favor of the Government.” Hassan , 403 F.3d at 436–37. Nothing the judge said indicates that he was favoring the government ove r Ajanel-Gonzalez. Instead, his comments appear to be focused on moving the he aring along and avoiding testimony not relevant to the decision. The judge’s questions directly to Ajanel-Gonzalez appear to be focused on clarifying the testimony, and the judge did not hold back from restricting the government’s questioning when it was not relevant. Additionally, the transcript indi cates that the judge’s exchange with counsel at the outset of the hearing did not prohibit counsel from providing additional, independent reasons as grounds for relief. It only limited the extent to which the judge woul d accept argument on one particular reason prior to Ajanel-Gonzalez’s test imony. The fact that Sethna failed to identify imputed political opinion as a basis for relief at the outset and was later precluded from arguingNo. 15-3245, Ajanel-Gonzalez v. Sessions

- 16 - it in summation, then, is not an error attributable to the judge . And to the extent AjanelGonzalez feels that his social group of “young men who objected to joining gangs and were threatened” was summarily dismissed when the j udge referred to it as “[p]retty much an S-E-Gparticular group,” the judge was referring precedent binding on his decision. AR 114. Sethna also immediately indicated his disagreement and intent to distinguish that decision through testimony. Given the broad discretion that this court allows immigration judges in managing proceedings, we cannot say that the conduct here arises to a level at which Ajanel-Gonzalez did not receive a full and fair hearing. Alternatively, Ajanel-Gonzalez has not sugge sted how he was prejudiced as a result of these alleged improprietie s. He received a full merits-bas ed review by both the immigration judge and the Board; he has not identified how the judge’s instru ctions precluded testimony that he would have otherwise added to the record; a nd even if Sethna was precluded from arguing imputed political opinion as a protected ground b ecause he failed to iden tify it at the outset, Ajanel-Gonzalez does not attempt to argue how doi ng so would have changed the outcome of his asylum or withholding of removal claim.
* * * Without a basis to establish erro r or prejudice as to either due process claim, we conclude that the Board was correct to find that Ajan el-Gonzalez was afforded sufficient due process during his removal proceedings.
VII. For the foregoing reasons, we deny the petition for review.