Opinion
20-70870
10-24-2022
CHARLES ROBERT JOSEPH, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted October 19, 2022 San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A047-348-975
Before: HAWKINS, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM [*]
Charles Robert Joseph petitions for review of a decision by the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") order denying protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. Reviewing the BIA's legal determinations de novo and its factual findings for substantial evidence, see Diaz-Jimenez v. Sessions, 902 F.3d 955, 958 (9th Cir. 2018), we deny the petition.
Due process requires only that an applicant for relief from removal receive "a full and fair hearing of [his] claims and a reasonable opportunity to present evidence on his . . . behalf." Zolotukhin v. Gonzales, 417 F.3d 1073, 1075 (9th Cir. 2005). To prevail on a due process claim, the applicant must also show prejudice. See Pagayon v. Holder, 675 F.3d 1182, 1191-92 (9th Cir. 2011) (per curiam).
The BIA properly concluded that the IJ did not deny Joseph due process by prohibiting telephonic testimony from his father and brother. See Oshodi v. Holder, 729 F.3d 883, 892 (9th Cir. 2013) (en banc) (recognizing that due process does not entitle an asylum applicant to present testimony "when both parties stipulate that the testimony would be both consistent with the written statement and believable" (emphasis omitted)). Joseph's counsel stated that "both witnesses would testify consistently with their declarations," counsel for the government stated that the government would "accept an offer of proof on both" witnesses, and the IJ "accept[ed] the proffer that they would testify consistently with [their] declarations if they testified by telephone." The IJ gave "full weight to his family's declarations."
Insofar as Joseph argues that his brother Francis should have been permitted to testify to "clarify that [Francis's] ethnicity, hairstyle, or beliefs played [a] role in the harm he suffered" given that the IJ found Francis's declaration insufficient in that regard, any error was harmless because the BIA did not rely on that finding. See Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998). Rather, the BIA found that "the mistreatment [Francis] describes did not rise to the level of 'torture.'" This finding was supported by substantial evidence, see Ahmed v. Keisler, 504 F.3d 1183, 1200-01 (9th Cir. 2007), and Joseph does not argue otherwise.
Joseph waived his claim that his robbery conviction under California Penal Code section 211 was not a theft offense for which he is deportable. Therefore, we do not address it.
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.