Armando Ortiz Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO ORTIZ HERNANDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-71573
Agency No. A077-518-174
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2022**
San Francisco, California
Before: GRABER, WATFORD, and WALLACH,*** Circuit Judges.
Petitioner Armando Ortiz Hernandez, a native and citizen of Mexico,
entered the United States in 2013 without immigration documents. He conceded
* 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 Evan J. Wallach, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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removability but sought asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). The Board of Immigration Appeals
dismissed his appeal from an immigration judge’s (“IJ”) denial of all forms of
relief. Petitioner timely seeks our review. We deny the petition.
1. We review for substantial evidence the agency’s factual findings,
including adverse credibility determinations. Mukulumbutu v. Barr, 977 F.3d 924,
925 (9th Cir. 2020). “[W]e must uphold the agency[’s] determination unless the
evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019) (emphasis added). Here, the IJ considered the totality
of the circumstances and all relevant factors under 8 U.S.C. § 1158(b)(1)(B)(iii),
and provided specific, cogent reasons for the adverse credibility finding. See
Shrestha v. Holder, 590 F.3d 1034, 1042–43 (9th Cir. 2010) (describing
requirement).
Substantial evidence supports the agency’s adverse credibility
determination. Petitioner stated in his asylum application that, after a friend
reported cartel members to the police, the friend was discovered hanging, with a
note on his body warning others not to disobey the cartel. But the agency noted
that Petitioner’s testimony was inconsistent with respect to the location of the body
(on a bridge outside town, in an alley, or in the middle of the street), the condition
of the body (shot, cut, or neither), and the existence of a note. Those

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inconsistencies are not trivial, as they related to Petitioner’s fear of persecution.
See Shrestha, 590 F.3d at 1046–47 (“Although inconsistencies no longer need to
go to the heart of the petitioner’s claim, when an inconsistency is at the heart of the
claim it doubtless is of great weight.”). In addition, our review of the record and
the IJ’s credibility analysis reveals neither an improper reliance on, nor a failure to
account for, Petitioner’s speech impediment. Rather, the agency observed that
Petitioner’s testimony was often unresponsive, and counsel had to remind him of
the contents of his application. Because Petitioner was permissibly found not
credible, we deny his claims for asylum and withholding.
2. Petitioner’s CAT claim rested on the same testimony that was found not
credible, and the record does not otherwise compel the conclusion that it is more
likely than not he would be tortured by or with the consent or acquiescence of the
government if returned to Mexico. Therefore, substantial evidence also supports
the denial of CAT relief. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.
2003) (holding that an adverse credibility finding suffices to defeat a CAT claim
when the record contains no other evidence with respect to the likelihood of future
torture). We deny Petitioner’s claim for CAT relief.
3. We review de novo claims of due process violations in removal
proceedings. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006).
Petitioner’s due process claim is, in essence, a quarrel with the result of the hearing

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on the merits and a complaint as to the use of leading questions. As to the former,
judicial rulings alone rarely establish bias. Liteky v. United States, 510 U.S. 540,
555–56 (1994). As to the latter, questioning in aid of fully developing the factual
record, which occurred here, does not amount to bias. Antonio–Cruz v. INS, 147
F.3d 1129, 1131 (9th Cir. 1998). Even aggressive or harsh questioning does not
necessarily rise to the level of a due process violation. Melkonian v. Ashcroft, 320
F.3d 1061, 1072 (9th Cir. 2003).
In addition, Petitioner argues that the IJ’s failure to consider his severe
speech impediment deprived him of a full and fair hearing. But Petitioner fails to
explain how he was prejudiced by the IJ’s conduct. See Vargas-Hernandez v.
Gonzales, 497 F.3d 919, 926 (9th Cir. 2007) (“In order to prevail on a due process
claim that he was denied a full and fair hearing, an alien must also show
prejudice—that his rights were violated in a manner so as potentially to affect the
outcome of the proceedings.” (citation and internal quotation marks omitted)).
Because he does not articulate what testimony or evidence would have been
presented but for the IJ’s conduct, we deny Petitioner’s due process claim.
PETITION DENIED.

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