Background
Odilia Vicente Vasquez and two minor children, citizens and natives of Guatemala, petitioned for review after the Board of Immigration Appeals denied a motion to remand for a full hearing before the immigration judge with a new interpreter and dismissed their appeal. They sought asylum, withholding of removal, and Convention Against Torture protection based on domestic violence by Vicente Vasquez’s former partner. The immigration judge found past persecution by the former partner but concluded the petitioners failed to show a causal nexus between the harm or feared harm and membership in a particular social group, which the immigration judge construed as Guatemalan women.
The court’s reasoning
The court reviewed the due process claims de novo and the denial of the motion to remand for abuse of discretion. It held the Board did not abuse its discretion and that no due process violation occurred because the petitioners could not show prejudice from the interpretation provided at the merits hearing. The panel explained that even assuming Guatemalan women could be a legally cognizable particular social group, the record did not show a causal nexus between that group membership and the past persecution or feared future persecution. The court noted that when Vicente Vasquez expressed incomprehension during substantive questioning, the immigration judge repeated the question and obtained a more direct answer. The panel relied on her answer that her former partner also fought with other people when drunk, concluding that this foreclosed her ability to establish the required nexus to the proposed social group. The court further held that the petitioners did not show the interpretation caused the immigration judge to miss or misapprehend facts that would have changed the outcome on asylum, withholding, or Convention Against Torture relief, including facts showing torture or government acquiescence.
In order to make out a due process violation as a result of an incompetent translation, [petitioner] must demonstrate that a better translation likely would have made a difference in the outcome.
Siong v. INS, 376 F.3d 1030, 1041 (9th Cir. 2004)
What it means going forward
In interpreter-based immigration appeals, a petitioner must show that translation problems likely affected the outcome. This decision also underscores that domestic violence claims still require proof that the harm was connected to a protected ground and, for Convention Against Torture relief, proof of torture and government acquiescence.