Opinion
16-70293 17-70709
09-07-2022
CRISPIN GALEANA-VENTURA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. CRISPIN GALEANA-VENTURA, AKA Rosundo Verra Estrada, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted September 2, 2022 Seattle, Washington
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-490-229
Before: HAWKINS and GOULD, Circuit Judges, and RAKOFF, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
In Case No. 16-70293, Petitioner Crispin Galeana-Ventura-a native and citizen of Mexico-seeks review of a Board of Immigration Appeals (BIA) order upholding an Immigration Judge's (IJ) decision denying his applications for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). That petition for review is accompanied by two motions to supplement the associated administrative record. In Case No. 17-70709, Petitioner seeks review of a BIA order denying his motion to reopen his immigration case. We have jurisdiction under 8 U.S.C. § 1252. We review de novo legal questions including whether a due process violation happened in immigration proceedings, Perez-Lastor v. I.N.S., 208 F.3d 773, 777 (9th Cir. 2000); and we review BIA denials of motions to reopen for abuse of discretion, which exists only if the BIA acted arbitrarily, irrationally, or contrary to the law, Singh v. I.N.S., 213 F.3d 1050, 1052 (9th Cir. 2000). In Case No. 1670293, we deny both motions to supplement the administrative record and dismiss the petition for lack of subject-matter jurisdiction. In Case No. 17-70709, we deny in part and dismiss in part the petition.
1. After Petitioner filed Case No. 16-70293, he twice moved to supplement the administrative record with documents for his ineffective assistance of counsel claim. We deny both motions because we "may decide the petition for review 'only on the administrative record on which the order of removal is based.'" Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016) (quoting 8 U.S.C. § 1252(b)(4)(A)).
2. In Case No. 16-70293, Petitioner urges us to grant relief under the theory that his merits hearing was tainted by due process violations by the IJ and ineffective assistance by his former immigration counsel.
The alleged due process violations include: (1) the IJ's failure to create a verbatim transcript of the hearing; (2) the IJ's reading of self-translated notes of Petitioner's testimony into the record in lieu of a verbatim transcript; and (3) the IJ's failure to ensure that Petitioner's birth certificate and declaration were in the administrative record. But Petitioner did not make these due process arguments in the brief he filed with the BIA on direct appeal from the IJ's decision, meaning they are unexhausted. See 8 U.S.C. § 1252(d)(1); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc). Non-exhaustion is dispositive because aliens must give the BIA an opportunity to correct procedural errors by the IJ, and the BIA could have fixed the mistakes at issue here by remanding for a new merits hearing. See Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995); Rashtabadi v. I.N.S., 23 F.3d 1562, 1567 (9th Cir. 1994). We dismiss this unexhausted due process claim for lack of jurisdiction. See Alvarado v. Holder, 759 F.3d 1121, 1127 (9th Cir. 2014).
Petitioner's ineffective assistance of counsel claim is also futile. He did not make this argument on direct appeal to the BIA, so it is unexhausted. See Abebe, 554 F.3d at 1208. And we must dismiss unexhausted ineffective assistance of counsel claims. See Alvarado, 759 F.3d at 1127; Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007).
3. In Case No. 17-70709, Petitioner again urges us to grant relief by pointing to alleged due process violations by the IJ and ineffective assistance of his former immigration counsel at his merits hearing.
The alleged due process violations mirror those at issue in Case No. 16-70293, with the addition of a claim that the lack of a verbatim merits hearing transcript makes the administrative record so sparse as to preclude judicial review. But Petitioner did not set out any discernible due process claims in moving the BIA to reopen, meaning the due process claims in Case No. 17-70709 are unexhausted. See Alvarado, 759 F.3d at 1128 (concluding that the exhaustion requirement is satisfied only when the petitioner's agency brief is "sufficient to put the BIA on notice that he was challenging" a particular issue); accord Vasquez-Borjas v. Garland, 36 F.4th 891, 900 (9th Cir. 2022). This lack of exhaustion is dispositive because the BIA could have corrected the errors Petitioner presently complains of by ordering a new merits hearing. See Liu, 55 F.3d at 426; Rashtabadi, 23 F.3d at 1567. We dismiss the instant due process claim for lack of jurisdiction. See Alvarado, 759 F.3d at 1127.
Petitioner's ineffective assistance of counsel claim also fails. He concedes that he could only gain relief based on his claimed status as a Mexican who would be seen as a wealthy American upon his return to Mexico. The BIA correctly concluded that Petitioner cannot avoid removal on this ground. See Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir. 2019); Reyes v. Lynch, 842 F.3d 1125, 1139-40 (9th Cir. 2016). Nor can Petitioner rely on generalized crime in Mexico to gain relief. See Tzompantzi-Salazar v. Garland, 32 F.4th 696, 707 (9th Cir. 2022); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). Because Petitioner identifies no "plausible grounds for relief," see Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003), he cannot establish the prejudice required to succeed on an ineffective assistance of counsel claim, see Iturribarria v. I.N.S., 321 F.3d 889, 899-900 (9th Cir. 2003), or that the BIA abused its discretion in denying reopening, see Singh, 213 F.3d at 1052. We deny this claim on the merits. See id.
The motions in Case No. 16-70293 [Dkt. Nos. 14, 20] are DENIED. The petition in Case No. 16-70293 is DISMISSED. The petition in Case No. 1770709 is DENIED in part and DISMISSED in part.
The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.