               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0661n.06

                                          No. 17-3409
                                                                                     FILED
                          UNITED STATES COURT OF APPEALS                       Nov 29, 2017
                               FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk

WILBUR HERNANDEZ-ORTEGA, aka                          )
Wilber Hernandez-Ortega,                              )
                                                      )
       Petitioner,                                    )
                                                      )   ON PETITION FOR REVIEW
v.                                                    )   FROM THE UNITED STATES
                                                      )   BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III, Attorney                  )   APPEALS
General,                                              )
                                                      )
       Respondent.                                    )



       BEFORE: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.


       PER CURIAM. Wilbur Hernandez-Ortega, a.k.a. Wilber Hernandez-Ortega, petitions for

review of an order of the Board of Immigration Appeals (BIA) that affirmed an immigration

judge’s (IJ) denial of his application for withholding of removal and relief under the Convention

Against Torture (CAT).

       Hernandez-Ortega is a native and citizen of El Salvador. He unlawfully entered the

United States in September 2011, and he was removed the same month. Hernandez-Ortega

unlawfully reentered the United States in December 2011, and he was ordered to appear before

an immigration judge after an asylum officer determined that he had established a reasonable

fear of persecution if removed to El Salvador.
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Hernandez-Ortega v. Sessions

       Hernandez-Ortega filed an application for withholding of removal and relief under the

CAT, alleging that, if he were removed to El Salvador, gang members would persecute and

torture him because of his Christian religion and his attempts to convince gang members to join

his church. The IJ denied the application, concluding that Hernandez-Ortega’s testimony was

not credible and that he failed to establish entitlement to relief. The BIA affirmed the IJ’s

decision.

       On appeal, Hernandez-Ortega raises the following arguments:          (1) the IJ’s adverse

credibility determination was improper; (2) the BIA erred by failing to address one of his

arguments; (3) the BIA erred by concluding that his corroborative evidence was insufficient to

establish his entitlement to relief; and (4) he was denied due process when the IJ allowed the

government to cross-examine him about his prior sworn statement without giving him adequate

time to review the statement with his counsel.

       The BIA issued an independent decision, so we review the BIA’s determination,

including any parts of the IJ’s reasoning referenced by the BIA. Khozhaynova v. Holder,

641 F.3d 187, 191 (6th Cir. 2011). We review legal conclusions de novo and factual findings

and credibility determinations for substantial evidence. Id. Under the substantial-evidence

standard, administrative findings of fact “are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” Id.

       Hernandez-Ortega first argues that the adverse credibility determination was improper

because the IJ demonstrated antagonism toward him or engaged in impermissible speculation

and conjecture in three instances. First, after Hernandez-Ortega testified that gang members

threatened to kill him in 2008 (which implied that they would follow through on their threats if

he returned), the IJ pointed out through questioning that the gang members did not kill him in


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Hernandez-Ortega v. Sessions

2010 when they allegedly attacked him with a knife and a rock. Second, after Hernandez-

Ortega’s counsel asked him about being stabbed with a knife during the 2010 incident, the IJ

pointed out that Hernandez-Ortega had testified that he was cut on the arm with a knife, not

stabbed. And third, the IJ noted in his decision that Hernandez-Ortega could not explain why the

gang members did not kill him during the 2010 incident if it was their intention to do so.

Hernandez-Ortega further argues that the adverse credibility determination was improper

because the IJ interjected his personal beliefs by stating that Hernandez-Ortega’s assertion that

his scars were from the 2010 incident would be accepted as true only if the IJ concluded that

Hernandez-Ortega was a credible witness.

       Hernandez-Ortega’s arguments provide no basis for disturbing the adverse credibility

determination. Nothing about the IJ’s questions or statements suggests that he was improperly

antagonistic toward Hernandez-Ortega or that he based any decision on speculation or

conjecture. And the IJ did not impermissibly interject his personal opinion by noting that

Hernandez-Ortega’s overall credibility would determine whether the IJ accepted as true the

factual assertions in Hernandez-Ortega’s testimony.

       Hernandez-Ortega next argues that the BIA erred by failing to address his argument that

the IJ improperly placed on him the burden to explain why the gang members did not kill him

during the 2010 incident. This argument does not warrant relief because the BIA did not rely on

the IJ’s observation that Hernandez-Ortega could not explain why the gang members did not kill

him.

       Hernandez-Ortega next argues that the BIA erred by concluding that his corroborative

evidence was insufficient to establish that he was entitled to withholding of removal and relief

under the CAT. Hernandez-Ortega specifically relies on photographs of his scars, letters from


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Hernandez-Ortega v. Sessions

his parents and fellow church members addressing his religion and church activities, and letters

and other evidence concerning the murder of alleged gang members in El Salvador whom

Hernandez-Ortega had invited to join his church. Hernandez-Ortega also relies on country

reports and other evidence of conditions in El Salvador.

       To qualify for withholding of removal, an applicant must show that it is more likely than

not that he would be persecuted in the country of removal due to his “race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Pablo-

Sanchez v. Holder, 600 F.3d 592, 594 (6th Cir. 2010). An applicant who establishes past

persecution is presumed to have a well-founded fear of future persecution. Pablo-Sanchez, 600

F.3d at 594. To qualify for relief under the CAT, the applicant must establish that it is more

likely than not that he would be tortured in the country of removal “by or at the instigation of or

with the consent or acquiescence of a public official or other person acting in an official

capacity.” 8 C.F.R. § 1208.18(a)(1); Haider v. Holder, 595 F.3d 276, 289 (6th Cir. 2010).

       Substantial evidence supports the BIA’s determination that Hernandez-Ortega’s

corroborative evidence was insufficient to establish his entitlement to relief. The photographs of

Hernandez-Ortega’s scars and the letters concerning his religion and church activities did not

compel a conclusion that he had been persecuted because of his religion or that it was more

likely than not that he would be persecuted or tortured if removed to El Salvador. Notably, none

of the letters suggest that the 2010 attack was connected to Hernandez-Ortega’s work with the

church. In addition, the BIA reasonably discounted the letters concerning the murder of gang

members in El Salvador because two of the letters were strikingly similar despite allegedly being

written by different people at different times, and because the letters did not state that the victims

were killed due to their religious activities or their relationship with Hernandez-Ortega. Finally,


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although the evidence of country conditions showed that there are problems with gangs in El

Salvador, it was insufficient to compel the conclusion that it was more likely than not that

Hernandez-Ortega’s removal would result in him being persecuted on account of a protected

ground or tortured “by or at the instigation of or with the consent or acquiescence of a public

official.” See Zaldana Menijar v. Lynch, 812 F.3d 491, 501-02 (6th Cir. 2015).

       Hernandez-Ortega lastly argues that his due process rights were violated when the IJ

allowed the government to cross-examine him about a sworn statement that he made to a border

patrol agent in 2011 without giving him an adequate opportunity to review the statement with his

counsel. Hernandez-Ortega further contends that the error undermines the adverse credibility

determination because the determination was based in part on his testimony about the sworn

statement.

       “We review de novo alleged due process violations in removal hearings.” Bi Qing Zheng

v. Lynch, 819 F.3d 287, 296 (6th Cir. 2016). When reviewing such claims, we must determine

whether there was a defect in the proceedings that caused prejudice to the petitioner. Id. To

establish prejudice, a petitioner must show that the defect led to a substantially different outcome

from that which would have otherwise occurred. Id. at 297. Hernandez-Ortega has not shown

that the questioning about the sworn statement undermined the adverse credibility determination

or otherwise substantially affected the outcome of his removal proceedings because the IJ and

BIA gave valid reasons for the adverse credibility determination and for denying Hernandez-

Ortega relief: reasons that were unrelated to his testimony concerning the sworn statement.

       Accordingly, we DENY the petition for review.




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