                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 26 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NUAN IVAN CARRANZA,                              No. 11-70495

              Petitioner,                        Agency No. A099-825-145

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted October 21, 2015**
                              San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.

      Nuan Ivan Carranza, a native and citizen of Honduras, petitions for review

of the Board of Immigration Appeals’s (“BIA”) decision affirming the denial of his

application for deferral of removal under the Convention Against Torture (“CAT”).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review for substantial evidence the factual findings underlying the BIA’s

determination of ineligibility under CAT. Owino v. Holder, 771 F.3d 527, 531–32

(9th Cir. 2014) (per curiam). We review de novo claims of due process violations

in removal proceedings. Larita-Martinez v. I.N.S., 220 F.3d 1092, 1095 (9th Cir.

2000). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for

review.

                                           I

      Substantial evidence supports the BIA’s denial of CAT relief to Carranza.

The BIA gave “reasoned consideration” to all the evidence in the record, including

the declaration provided by Borjas. See Cole v. Holder, 659 F.3d 762, 772 (9th

Cir. 2011) (remanding when BIA completely failed to consider evidence provided

by expert witness). The BIA reasonably concluded that Carranza was unlikely to

come to the attention of Honduran authorities as a potential gang member. See

Andrade v. Lynch, 798 F.3d 1242, 1244–45 (9th Cir. 2015) (per curiam)

(concluding that petitioner with “decorative, not gang-related” tattoo did not

establish clear probability that he would be subject to torture).

      Substantial evidence also supported the BIA’s conclusion that government

officials would not acquiesce in Carranza’s torture by members of the Mara 18

gang—through its Mano Duro policies, the Honduran government is attempting to


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address gang-related violence. Furthermore, Carranza did not seek police

assistance following his previous run-ins with members of Mara 18 and thus

cannot argue that the government was willfully blind to his particular situation.

See Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th Cir. 2008) (holding that

petitioner could not establish government acquiescence in gang violence “because

the incidents were never reported and there [was] no evidence in the record

suggesting the government may have otherwise been aware of threats made

against” the petitioner), abrogated on other grounds by Henriquez-Rivas v. Holder,

707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). In short, substantial evidence

supports the BIA’s conclusion.

                                          II

      Carranza claims the immigration judge denied Carranza due process of law

by excluding the telephonic testimony of Maria Borjas, an expert witness.

Petitioner bears the burden of establishing that: (1) a due process violation

occurred; and (2) the violation caused the petitioner prejudice, meaning it affected

the outcome of the proceedings. Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.

2000).

      We agree that the IJ violated Carranza’s procedural due process rights by

excluding Borjas’s telephonic testimony. Aliens in removal proceedings are


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entitled to a “full and fair hearing of [their] claims and a reasonable opportunity to

present evidence.” Id. at 971; see also 8 U.S.C. § 1229a(b)(4)(B) (describing

aliens’ rights in removal proceedings). In Colmenar, we held that an IJ denied

petitioner due process by limiting petitioner’s oral testimony. 210 F.3d at 971–72.

Similarly, in Lopez-Umanzor v. Gonzales, we held that the IJ denied petitioner due

process when the telephonic expert testimony “could provide information relevant

to the IJ’s most critical areas of doubt” and would cover issues not addressed in the

written affidavits. 405 F.3d 1049, 1056–57 (9th Cir. 2005). In this case, the IJ

should have permitted the petitioner to present the telephonic testimony.

      However, in addition to demonstrating the procedural due process violation,

petitioner bears the burden of establishing that the alleged violation prejudiced

their interests, or potentially affected the outcome of the proceeding. Colmenar,

210 F.3d at 971. After a careful review of the record, we conclude that Carranza

did not establish that the exclusion of the evidence affected the outcome of the

proceedings. The evidence would have been largely cumulative of the expert’s

written declaration, which was admitted into evidence. Further, her testimony was

focused on the risk to persons in an age group different from that of the petitioner.

      We note that petitioners seeking deferral under the CAT face a very high

burden of proof. See Andrade v. Lynch, 798 F.3d 1242, 1245 (9th Cir. 2015) (per


                                          -4-
curiam). Petitioners must establish that there is more than a 50% chance that they

would be tortured if removed to the proposed country of removal. Id.; 8 C.F.R.

§ 1208.16(c)(2). Given the nature of the excluded evidence and the heavy burden

facing CAT applicants, petitioner has not established the requisite prejudice from

the due process violation and is therefore not entitled to relief.



      PETITION DENIED.




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