NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARISOL NAVARRO AGUILAR, AKA 

Rosa Marie Navarro, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-70749 

Agency No. A077-408-946 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 15, 2023**

San Francisco, California

Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,*** District 

Judge.

Petitioner Marisol Navarro Aguilar, a native and citizen of Mexico, petitions 

* 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 John Antoon II, United States District Judge for the 

Middle District of Florida, sitting by designation.

FILED

AUG 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her 

application for withholding of removal based on an adverse credibility 

determination. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the 

petition.

1. The agency’s adverse credibility determination is reviewed for 

substantial evidence, “[t]aking the totality of the circumstances into account.” 

Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir. 2021). We may only reverse if 

the record evidence compels the conclusion that Aguilar was credible. See, e.g., 

INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see also Shrestha v. Holder, 

590 F.3d 1034, 1041–44 (9th Cir. 2010). Aguilar therefore bears “a substantial 

burden” to show the BIA’s denial of relief on adverse credibility grounds should be 

reversed. Li v. Garland, 13 F.4th 954, 959 (9th Cir. 2021).

To the extent Aguilar argues that the BIA erred in affirming the adverse 

credibility determination because it relied on inconsistencies in her testimony 

concerning the nature and extent of abuse Aguilar suffered from her former 

partner, the BIA explicitly noted that it did “not rely upon” Aguilar’s failure to 

describe the abuse during her reasonable fear interview in affirming the 

Immigration Judge’s (“IJ”) adverse credibility determination. 

Aguilar does not otherwise contest that the agency’s adverse credibility 

determination was based on significant discrepancies in the narrative underlying 
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her asylum claim. Instead, for the first time on appeal, she contends that her 

reasonable fear interview, her asylum application, and an untranslated declaration 

appended to her asylum application are unreliable and therefore cannot form the 

basis of an adverse credibility determination. It appears that these arguments were 

not exhausted before the BIA, but even if they were, the materials are not 

inherently unreliable and could serve as a basis for the agency’s adverse credibility 

determination. And because there is no argument the adverse credibility 

determination is not supported by substantial evidence, we deny the petition on this 

ground. 

2. Claims of due process violations in immigration proceedings are 

reviewed de novo, and the agency’s decision will be reversed on due process 

grounds only if “(1) the proceeding was so fundamentally unfair that the alien was 

prevented from reasonably presenting his case, and (2) the alien demonstrates 

prejudice, which means that the outcome of the proceeding may have been affected 

by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th 

Cir. 2006) (internal quotation marks and citations omitted).

Aguilar raises two due process challenges. First, she contends the IJ 

violated her due process rights when it denied a continuance so Aguilar’s expert 

witness could testify regarding the potential harm Aguilar would face if forced to 

return to Mexico. But as the BIA rightly noted, the testimony Aguilar sought from 
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her expert “would not change the ultimate conclusion” that she was not credible, 

and therefore the IJ’s denial of the requested continuance could not have affected 

the outcome of the proceedings. Aguilar therefore fails to show she suffered 

prejudice as a result of this alleged due process violation. See id.

Second, Aguilar contends her due process rights were violated when the IJ 

failed to issue a ruling on her request for subpoenas ad testificandum. The IJ, 

however, declined to issue the subpoenas because Aguilar failed “to show 

affirmatively that . . . she ha[d] made diligent effort, without success,” to produce 

the witnesses without resort to a subpoena as required by 8 C.F.R. § 1003.35(b). 

The IJ gave Aguilar an opportunity to submit requests including this information, 

but Aguilar failed to do so. Because the IJ’s refusal to issue the requested 

subpoenas was in accordance with the regulations, Aguilar’s second due process 

claim also fails.

PETITION FOR REVIEW DENIED.