NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEFA RAMIREZ-MATIAS DE 

MATIAS, et al.,

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

Nos. 17-73492

19-70208

 

Agency Nos. A202-122-291

 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 APPEALS
17-73492 

2 19-70208

(collectively, “Petitioners”),

1 natives and citizens 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 (9th 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, 1007 (9th Cir. 2017). The BIA’s factual findings “are 

conclusive unless any reasonable adjudicator would be compelled to conclude to 

1 Ramirez-Matias 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 Convention Against Torture (“CAT”) relief.
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the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review due process violations in 

immigration proceedings de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791

(9th Cir. 2003). We review the BIA’s denial of a motion to reconsider for abuse of 

discretion. Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir. 2015).

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-founded 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-, 27 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 acts 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-Matias 
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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 woman.” 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 Petitioners have

failed to show that it is more likely than not that they would be tortured if returned 

to Guatemala. See 8 C.F.R. § 1208.16(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. See 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 Petitioners 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 (9th Cir. 2003); Perez-Lastor v. 

INS, 208 F.3d 773, 778 (9th Cir. 2000). To make out a due process violation based 
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on incompetent translation, Ramirez-Matias “must demonstrate that a better 

translation likely would have 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) unresponsive 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 [Ramirez-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 an

interpreter who spoke her specific Mam dialect.

2 According to Ramirez-Matias, 

“many questions [] went unanswered” due to inadequate translation, and the IJ 

2 The interpreter denied any difficulty on his part in understanding RamirezMatias. 
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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 transcript 

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 outcome of the IJ hearing. The 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 translation 

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. Cf. PerezLastor, 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-finder 
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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 terminate. Our decision in Karingithi forecloses Ramirez-Matias’s

argument that, under Pereira, the IJ lacked jurisdiction 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. We 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).

PETITION FOR REVIEW DENIED. 

3 When 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 pressed 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.” See Perez-Lastor, 208 F.3d at 782 (“Finally, 

we recognize that, as a practical matter, an IJ may ameliorate the damage caused 

by an incompetent translation by asking for ‘[c]larification or repetition.’”).