Jose Misael Flores-Hernandez; Gerson Alexander Flores- Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MISAEL FLORES-HERNANDEZ;
GERSON ALEXANDER FLORES-
HERNANDEZ,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73188
Agency Nos. A208-998-385
A208-998-386
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 23, 2022**
Phoenix, Arizona
Before: PAEZ, CLIFTON, and WATFORD, Circuit Judges.
* 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).
FILED
NOV 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

Page 2 of 4
Jose Misael Flores-Hernandez and Gerson Alexander Flores-Hernandez
petition for review of a Board of Immigration Appeals (BIA) decision affirming
the denial of their applications for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT) and dismissing their appeal. The
BIA found that the Immigration Judge (IJ) adequately explained her decision and
denied petitioners’ due process claim. We deny the petition.
1. The BIA correctly held that the IJ adequately explained why petitioners’
applications were denied. The IJ stated that petitioners did not meet their burden to
show that they suffered harm rising to the level of persecution; that they were or
would be harmed on account of a protected ground; that the Honduran government
was or would be unable or unwilling to protect them; and that they could not
reasonably relocate to avoid future harm. With respect to petitioners’ CAT claim,
the IJ determined that petitioners did not establish that it is more likely than not
that they would be tortured by or at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official capacity.
Petitioners contend that the IJ failed to make any credibility determinations,
but the IJ specifically found both petitioners credible. Petitioners also contend that
the IJ failed to determine whether their proposed particular social group was
cognizable, but the IJ’s decision assumed the validity of petitioners’ proposed
social group and rested instead on the lack of required nexus between the harm

-- 2 of 4 --

Page 3 of 4
petitioners experienced and their membership in their family. On this record, the
BIA correctly ruled that the IJ decision was adequately explained.
2. Petitioners argue that the IJ exhibited bias against them by mocking
petitioner Gerson Flores-Hernandez and limiting the testimony of both petitioners
to one hour and fifteen minutes. To prevail on this due process challenge,
petitioners must show both “error and substantial prejudice.” Grigoryan v. Barr,
959 F.3d 1233, 1240 (9th Cir. 2020) (quoting Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000)). “Substantial prejudice is established when the outcome of the
proceeding may have been affected by the alleged violation.” Id. (quoting
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)).
With respect to the allegation of mocking, the IJ’s questioning was at times
aggressive and impatient, even antagonistic. But “a mere showing that the IJ was
unfriendly, confrontational, or acted in an adversarial manner is not enough” to
establish that the underlying proceeding was fundamentally unfair, such that
petitioners were prevented from reasonably presenting their case. Rizo v. Lynch,
810 F.3d 688, 693 (9th Cir. 2016). Here, there is no evidence that petitioners or
their counsel were prevented from presenting their case because of the IJ’s
questioning. Cf. Colmenar, 210 F.3d at 971 (granting petition where the IJ refused
to let petitioner testify about certain matters, thereby preventing petitioner from
“elaborating” on his fear). The IJ’s decision considered all of the issues raised by

-- 3 of 4 --

Page 4 of 4
petitioners and does not reflect any bias towards them.
Moreover, “even if a removal hearing was conducted in a fundamentally
unfair manner, a petitioner must show prejudice.” Rizo, 810 F.3d at 693 (internal
quotation marks omitted). When, as here, the factual record adequately supports
the denial of relief, “we cannot find that the alleged bias held by the IJ was the
basis for the denial.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir.
2007).
With respect to the time limit the IJ imposed, petitioners have not identified
any testimony or evidence that they would have presented but for the limit and
which might have affected the outcome of their case. Although petitioners were
not required to “explain exactly what evidence” they would have presented with
additional time, Colmenar, 210 F.3d at 972, they failed to present any “plausible
scenarios in which the outcome of the proceedings would have been different,”
Tamayo-Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013) (quoting Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc)). Because
petitioners have not established any prejudice from the alleged error, their due
process claim fails.
PETITION FOR REVIEW DENIED.

-- 4 of 4 --