NOT FOR PUBLICATION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

JOSEFA RAMIREZ

- MATIAS DE MATIAS , et al.,

P etitioner ,

v. WILLIAM P

. BARR , Attorney General ,

Respondent

. No s
. 17

- 73492 19

- 70208
Agency No s
. A2 02

- 122

- 291

A202

- 122

- 292 A202

- 122

- 293

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. 

# FILED

JUL 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS17

- 73492 2 19

- 70208 ( collectively, “Petitioner s ”) , 1 native s and citizen s 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 (9 th 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 , 100 7 ( 9th Cir. 2017)

. The BIA ’s factual findings “ are conclusive unless any reasonable adjudicator would be compelled to conclude to

1 Ramirez

- Mat ias 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 C onvention Against Torture (“CAT”) relief.17

- 73492 3 19

- 70208 the contrary.” 8 U.S.C. § 1252(b)(4)(B). We revi ew due process violations in immigration proceedings de novo

. Lopez

- Urenda v. Ashcro ft , 345 F.3d 7 88 , 7 91 (9th Cir. 20 03 ). We review the BIA’s denial of a motion to reconsider for abuse of discretion. Toor v. Lynch , 78 9 F.3d 10 5 5, 10 59 (9th Cir. 20 1 5).
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

- f

ounded 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

- , 2 7 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 a cts 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

- Matias17

- 73492 4 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 wo man
. ” 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 Petition er s h ave failed to show that it is more likely than not that they w ould be tortured if returned
to Guatemala

. See 8 C.F.R. § 1 208.16(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. S ee 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 Petitioner s 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 (9 th Cir. 2003); Perez

- Lastor v.
INS , 208 F.3d 773, 778 (9 th Cir. 2000). To make out a due process violation based17

- 73492 5 19

- 70208 on incompetent translation, Ramirez

- Matias “must demonstrate that a better translation likely would ha ve 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) un responsive 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 [Rami rez - 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 a n interpreter who spoke her specifi c Mam dialec t

. 2 According to Ramirez

- Matias, “many questions [] went unanswered” due to inadequate translati on, and the IJ

2 The interpreter denied any diffic ulty on his part in understanding Ramirez

Matias.17

- 73492 6 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 tr anscript 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 ou tcome of th e IJ hearing. T he 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 tran slation 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

. C f. 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

- finder17

- 73492 7 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 termina te

. Our decision in Karingithi forecloses Ramirez

- Matias’s argument that, under Pereira , the IJ lacked jur isdiction 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

. W e 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).
P ETITION FOR REVIEW DENIED .

3 W hen 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 p ressed 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.” S ee Perez

- Lastor , 208 F.3d at 782 (“ Finally, we recognize that, as a practical matter, an IJ may amel iorate the damage caused by an incompetent translation by asking for ‘ [c]larification or repetition. ’” )

.