Zacarias-Velasquez v. Mukasey
| Decision Date | 04 December 2007 |
| Docket Number | No. 06-3672.,06-3672. |
| Citation | 509 F.3d 429 |
| Parties | Marcos ZACARIAS-VELASQUEZ, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States of America, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
v.
Michael B. MUKASEY, Attorney General of the United States of America, Respondent.
[509 F.3d 430]
Richard Breitman, argued, Bloomington, MN, for Petitioner.
William C. Minick, argued, Washington, D.C. (Peter D. Keisler and Linda S. Werney, on the brief), for Respondent.
Before MELLOY, BEAM, and SHEPHERD, Circuit Judges.
MELLOY, Circuit Judge.
Marcos Zacarias-Velasquez, a native and citizen of Guatemala, entered the United States without inspection and filed
an application for asylum. He failed to appear for a scheduled interview, and an immigration judge ("IJ") dismissed his application. Subsequently, immigration authorities commenced removal proceedings against him, and he filed a second application for relief, this time seeking asylum, withholding of removal, protection under the Convention Against Torture ("CAT"), cancellation of removal, and voluntary departure. Zacarias-Velasquez conceded removeability, and a different IJ denied all forms of relief other than the privilege of voluntary departure. Zacarias-Velasquez appealed the decision to the Board of Immigration Appeals ("the BIA") and also raised a due process claim regarding alleged deficiencies with an interpreter as well as alleged improper conduct by the IJ. The BIA adopted and affirmed the IJ's decision. The BIA also held that Zacarias-Velasquez failed to prove his due process claim because he failed to show the interpreter was incompetent, the IJ acted improperly, or an alleged deficiency caused prejudice. Zacarias-Velasquez now petitions this court for review. He seeks reversal, or alternatively, a remand to a different IJ for a full and fair hearing on the merits of his claim with a competent interpreter. We deny the petition.
In his initial asylum application, Zacarias-Velasquez stated that he served in the civil patrol in Guatemala and was detained and threatened by guerrillas. An IJ denied that asylum application because Zacarias-Velasquez failed to appear for an interview. In his current asylum application, Zacarias-Velasquez stated that he came to the United States because the guerrillas wanted to kill him. He claimed the guerrillas burned down his house, threatened to kill him and his family, and killed his father after Zacarias-Velasquez refused to fight in their war against the army.
Zacarias-Velasquez participated in a final removal hearing and was the sole witness. During the hearing, the parties and the IJ communicated through an interpreter who participated via telephone. The telephonic interpreter was bilingual in Spanish and English. She struggled a few times in translating Zacarias-Velasquez's testimony. She could not understand some of the places he had lived, such as Dodge City, Kansas, and Immokalee, Florida. The interpreter apologized to the IJ and said, "the respondent is going a little bit too fast for the interpreter." The interpreter also could not understand Zacarias-Velasquez's daughter's name, Haydy. In each case, the IJ understood the name and stated it for the record. Twice, the IJ told Zacarias-Velasquez and his lawyer to speak louder or move the microphone closer so that the interpreter on the telephone could hear. The interpreter told the IJ when she did not understand Zacarias-Velasquez, and the question and answer were repeated. The IJ participated actively in the hearing, asking Zacarias-Velasquez questions on a variety of topics in an attempt to get a complete picture of Zacarias-Velasquez's background and current status.
We recount the substance of Zacarias-Velasquez's testimony here. Until he came to the United States, he lived his entire life in Canton Tres Cruses, Guatemala. Zacarias-Velasquez described it as a place with "no law and no police protection."
Zacarias-Velasquez claimed four instances of he and his family suffering harm at the hands of the guerrillas and other groups in Guatemala. First, Zacarias-Velasquez alleged that the guerrillas harmed his father after Zacarias-Velasquez left
Guatemala. Zacarias-Velasquez alleged that the guerrillas gave his father an injection in the wrong place—in the arm, not the vein—and as a result, his father got sick and died three to four months later. His father did not go to the hospital because the family could not afford it and had no means of transportation. As Zacarias-Velasquez was already in the United States, his entire knowledge of these events came from his mother. Zacarias-Velasquez does not know whether the injection was meant to harm his father or who exactly injected his father. Second, his mother's home burned down three years before he left, but his testimony regarding the arsonist's identity was vague. Third, he testified that some group tried to recruit him, but he did not know its identity other than that is was more like a criminal group in the neighborhood than an anti-government group. Fourth, his family received some threats, but he did not know the source.
Zacarias-Velasquez testified that he left Guatemala for the United States in 1992 because he was scared of the guerrillas and of the killings taking place in Guatemala, and he wanted to find a peaceful place to live. He stated that the guerillas never detained him or had any direct contact with him and that he never served in the civil patrol in Guatemala.
Zacarias-Velasquez explained why he did not want to leave the United States for Guatemala. Despite acknowledging that "the problem with the guerrilla[s] has ... come down a lot," he is afraid of encountering troubles in Guatemala from people thinking he has money since he came from the United States. He admitted that he basically just wants to work in the United States. He also stated that if he left the country, his girlfriend, their child, and her children would miss him, and his girlfriend would not be able to support the family.
Zacarias-Velasquez has never married and has three children. One child, Haydy Zacarias-Velasquez, was born and lives in the United States. Zacarias-Velasquez lives with his girlfriend—Haydy's mother—in Sioux Falls, South Dakota. Haydy is in good health. Zacarias-Velasquez stated that if he had to return to Guatemala, Haydy would remain in the United States. Zacarias-Velasquez has two other children who live in Guatemala. He financially supports all three children.
Despite finding Zacarias-Velasquez generally credible, the IJ denied all relief, except the request for voluntary departure. The IJ found that Zacarias-Velasquez presented inadequate evidence to warrant relief. The IJ did...
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