Victor Angeles Zamorano v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR LUIS ANGELES ZAMORANO, No. 19-72893
Petitioner,
Agency No.
v. A207-281-621
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2021
Pasadena, California
Filed June 25, 2021
Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit
Judges, and Kathryn H. Vratil,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
2 ZAMORANO V. GARLAND
SUMMARY**
Immigration
Granting in part, denying in part, and dismissing in part
Victor Luis Angeles Zamorano’s petition for review of a
decision of the Board of Immigration Appeals dismissing his
appeal of an immigration judge’s denial of voluntary
departure, and remanding, the panel held that the IJ erred by
failing to evaluate the factors weighing in favor of granting
Zamorano voluntary departure.
As an initial matter, the panel noted that although it
lacked jurisdiction to reweigh the agency’s exercise of
discretion in denying voluntary departure, it did have
jurisdiction to review constitutional claims or questions of
law in the denial of such relief, including whether the Board
and IJ failed to consider the appropriate factors or relied on
improper evidence. The panel concluded that there was no
indication that the IJ implicitly considered any favorable
factors in making its discretionary voluntary departure
determination. The panel therefore remanded for further
proceedings.
The panel rejected Zamorano’s argument that the IJ
violated 8 C.F.R. § 1240.11 by failing to advise him that he
could apply for asylum and withholding of removal, by
failing to inform him of his apparent eligibility to apply for
other immigration benefits, including U nonimmigrant status,
and by failing to develop the record as to these claims. The
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ZAMORANO V. GARLAND 3
panel explained that the duty to advise an alien of apparent
eligibility to apply for benefits under Title 8, Chapter V of the
Code of Federal Regulations, is triggered whenever the facts
before the IJ raise a “reasonable possibility that the petitioner
may be eligible” for such relief, and that the failure to advise
can be excused when the petitioner’s eligibility for relief is
not “plausible.”
The panel concluded that the IJ’s duty to advise
Zamorano about his apparent eligibility for asylum and
related relief was not triggered, where Zamorano stated that
his only fear related to starting a new life in a new country.
The panel also held that the IJ did not violate his duty under
§ 1240.11(a)(2) by failing to advise Zamorano of his apparent
eligibility for adjustment of status through U nonimmigrant
status, because § 1240.11(a)(2) applies only to benefits under
Chapter V, and U nonimmigrant status is governed by
Chapter I.
Because Zamorano failed to exhaust his claim regarding
the IJ’s duty to advise him of his apparent eligibility for
Deferred Action for Childhood Arrivals (DACA) relief, and
the claim involved a procedural challenge, rather than a
constitutional challenge, the panel concluded that it lacked
jurisdiction to consider it. The panel rejected Zamorano’s
argument that exhaustion should be excused by analogy to
this court’s exception to the exhaustion requirement for
collateral challenges to underlying removal orders in the
context of 8 U.S.C. § 1326. As an initial matter, the panel
observed that the Supreme Court’s decision in United States
v. Palomar-Santiago, 141 S. Ct. 1615 (2021), cast doubt on
the continued vitality of the exhaustion excusal rule under
§ 1326(d). The panel wrote that it need not resolve the effect
of Palomar-Santiago in the § 1326(d) context, because the
4 ZAMORANO V. GARLAND
judge-made exception to §1326(d)(1) does not apply to the
jurisdictional exhaustion requirement governing final orders
of removal under 8 U.S.C. § 1252(d)(1).
Turning to Zamorano’s statutory and constitutional
claims, the panel held that the IJ did not violate his duty to
sufficiently explore for all facts relevant to asylum,
withholding of removal, and U nonimmigrant status, and to
inform Zamorano of what evidence he needed to establish
these claims. The panel explained that the IJ asked pertinent
questions directed to determining whether Zamorano was
eligible for asylum and withholding of removal, but once
Zamorano testified that the only reason he feared returning to
Mexico was that he didn’t “know how to start a life in a new
country,” there was nothing left for the IJ to do, because
Zamorano’s own testimony established there was no plausible
basis for relief.
Likewise, the panel explained that Zamorano did not
indicate he was seeking possible U nonimmigrant status and
nothing in the proceedings would have prompted the IJ to
develop more facts on this issue. Moreover, the panel noted
that any error in failing to ask additional probing questions
concerning potential U nonimmigrant status was harmless,
because neither the Board nor IJs have authority over U visa
petitions, and no action of the IJ prevented Zamorano from
petitioning for such status before United States Citizenship
and Immigration Services, with whom sole authority rests.
The panel held that Zamorano failed to establish prejudice
from the Board’s failure to address his argument on appeal
that he was a victim of domestic violence or was eligible for
U nonimmigrant relief through his mother, because he never
hinted to the IJ that he was also a victim of domestic violence
ZAMORANO V. GARLAND 5
or was seeking U nonimmigrant status. The panel further
noted that the Board may properly refuse to address
arguments raised for the first time on appeal.
COUNSEL
Joseph V. Bui (argued) and Robert A. Olson, Greines Martin
Stein & Richland LLP, Los Angeles, California, for
Petitioner.
Andrew Oliveria (argued), Trial Attorney; Justin Markel,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
IKUTA, Circuit Judge:
Victor Luis Angeles Zamorano, a native and citizen of
Mexico, seeks review of a decision by the Board of
Immigration Appeals (BIA) dismissing his appeal from a
decision of the immigration judge (IJ) that denied his
application for voluntary departure. Because the IJ failed to
evaluate the factors weighing in favor of granting Zamorano
voluntary departure, we grant the petition and remand to the
BIA. We otherwise reject Zamorano’s arguments that the
agency erred in failing to develop other bases for relief.
6 ZAMORANO V. GARLAND
I
A
In May 2019, Zamorano was served with a notice to
appear (NTA), which charged him as removable based on his
presence in the United States without admission or parole.
At the initial removal proceeding, the IJ explained to
Zamorano that “the purpose of these proceedings is to
determine whether you should be removed from or allowed
to remain in the United States.” The IJ informed Zamorano
that he had the right to be represented by an attorney of his
choice, at no expense to the government, and indicated that
Zamorano had been provided an appeal rights form and a
legal aid list of local individuals and organizations. The IJ
further explained that “[i]f you do not find an attorney or
choose not to have an attorney, then you’re required to
represent yourself, plead to the allegations and charges
against you, as well as prepare any potential applications for
relief.” Finally, the IJ informed Zamorano that if he did not
have an attorney at the next hearing, he should come to the
hearing prepared to represent himself.
At his third hearing, after Zamorano did not obtain an
attorney despite two continuances, Zamorano stated that he
was ready to proceed and to represent himself. The IJ then
advised Zamorano of his rights in addition to his right to have
an attorney. The IJ explained that he had “the right to present
documents or testimony to support your case”; “the right to
object to Government evidence and to question witnesses
they present”; and “the right to appeal any decision” that the
IJ made in his case to the BIA “within 30 days of that
decision.” Zamorano stated that he understood those rights.
ZAMORANO V. GARLAND 7
The IJ proceeded through the allegations in the NTA.
Zamorano admitted that he was not a citizen or national of the
United States, was a native and citizen of Mexico, and
entered the United States illegally “at an unknown place on
an unknown date.” Zamorano also acknowledged that he
could be removed based on these allegations.
The IJ then turned to a series of questions regarding
potential bases for relief. The IJ asked when Zamorano first
entered the United States. Zamorano responded that he
entered around the year 2000 as a third grader. The IJ then
asked whether Zamorano had ever left the United States, and
Zamorano explained that he had not.
The IJ then turned to questions regarding whether
Zamorano had relatives in the United States who might assist
him in obtaining relief such as cancellation of removal or
adjustment of status. He asked whether Zamorano was
married, whether Zamorano had children, and whether
Zamorano had parents or grandparents in the United States
with lawful status. Zamorano responded that he was not
married and that he had no children.1 He also responded that
neither his parents nor his grandparents had lawful status, but
he noted that his mother was “processing her residency” in
the United States. The IJ inquired how Zamorano’s mother
was pursuing residency, and Zamorano responded that she
had “a case of domestic violence.” The IJ followed up, “So
1
Later in the hearing, Zamorano mentioned a fiancee who has “not,
you know, had a decision on her behalf,” but mused that, “[i]f we could
somehow arrange a marriage, but, you know, that’s, that’s all on her, so
I’m not willing to submit you know, an application yet.”
8 ZAMORANO V. GARLAND
she’s seeking a U-visa?”2 Zamorano said, “Yeah.” The IJ
then asked whether anyone had filed a petition for Zamorano
“seeking [his] adjustment to a lawful permanent resident.”
Zamorano said no.
The IJ then turned to the topic of Mexico, Zamorano’s
designated country of removal. This exchange followed:
IJ: Do you have any fear of
returning to Mexico?
Zamorano: I don’t know anybody in
Mexico, my family’s all
here.
IJ: Okay. I understand that
may be the situation, but
my question is a little
different than that.
Zamorano: Yeah
IJ: My question was, do you
have any fear of returning
to Mexico?
Zamorano: I fear that I don’t know how
to start a life in a new
country, pretty much.
IJ: Okay
Zamorano: That’s what I fear.
2
The “U-visa” refers to U nonimmigrant status under 8 U.S.C.
§ 1101(a)(15)(U)(i). See also 8 C.F.R. § 214.14.
ZAMORANO V. GARLAND 9
IJ: Any other reason that you
fear returning to Mexico?
Zamorano: Not that I know of.
After this exchange, the IJ stated: “Well, sir, there does
not appear to be any qualifying relatives for cancellation of
removal and no[] petitions for any adjustment, and the single
reason you give of not knowing how to start a new life in
Mexico is not a valid reason for asylum or related relief.”
The IJ explained that “at this stage I don’t see any forms of
relief available to you, except maybe voluntary departure.”
Turning to the possibility of voluntary departure, the IJ
asked the government whether Zamorano had “any criminal
history relevant to voluntary departure.” According to the
government, Zamorano had been convicted for driving under
the influence in 2014 and 2016. For the 2016 conviction,
Zamorano was driving under the influence of alcohol, without
a driver’s license and while talking on the phone. Zamorano
had also been arrested in 2018 and 2019 for disorderly
conduct issues related to alcohol use, and was convicted for
one of these disorderly conduct offenses.
Zamorano acknowledged the two DUIs but argued that
there were mitigating circumstances. In 2014, he was driving
to his girlfriend’s house and lost control of the car due to a
mechanical failure. He suffered a skull fracture from the
resulting accident. He claimed that he completed the required
programs and classes for a person convicted of a DUI. As to
the DUI in 2016, Zamorano stated he was on the phone with
his girlfriend when he lost control of the car. Zamorano
disputed the report of a witness who said that Zamorano
attempted to hit someone with his car. Zamorano likewise
10 ZAMORANO V. GARLAND
explained that, although he was arrested for battery on a
police officer who attempted to pull Zamorano from the car,
Zamorano only accidentally hit the police officer. Finally,
Zamorano claimed that his later disorderly conduct offense
occurred only because police stopped him when he was
walking home in his neighborhood.
The IJ concluded that given the persistent criminal issues,
he would not grant voluntary departure as a matter of
discretion. The IJ informed Zamorano that Zamorano could
either appeal the IJ’s decision or waive his right to appeal.
Zamorano stated his intent to appeal.
The IJ then issued an oral decision. He first stated that
Zamorano’s “only fear of returning to Mexico was that he
may not know how to start a new life there” and that “this
was not a validly lawful reason to seek asylum or relief under
the Convention Against Torture.” Therefore, Zamorano’s
“only request for any form[] of relief is in the form of pre-
conclusion voluntary departure.”3
Zamorano’s “criminal background, the repetitive nature
of the DUI offenses, which both result[ed] in property
damage, as well as the seriousness of those offenses and the
continued issues [Zamorano] apparently has with alcohol”
made the court “concerned” as to whether Zamorano was
“deserving of any voluntary departure.” For those reasons,
the IJ stated that he would “deny pre-conclusion voluntary
departure as a matter of discretion.” The IJ ordered
Zamorano removed to Mexico.
3
“Pre-conclusion voluntary departure” refers to a grant of voluntary
departure before the completion of removal proceedings. See 8 C.F.R.
§ 1240.26(b)(1).
ZAMORANO V. GARLAND 11
B
Zamorano filed a pro se appeal with the BIA. Zamorano
primarily argued that the IJ abused his discretion in denying
voluntary departure based on Zamorano’s problems with
alcohol. According to Zamorano, the IJ failed to take into
account that Zamorano does not have an alcohol problem,
that he had completed required programs and classes to
address his alcohol use, and that there were mitigating
circumstances for his crimes of conviction. Moreover,
Zamorano argued that the IJ failed to consider that he is a
person of good character and that he could have adduced
evidence showing he had made contributions to his family
and community.
Zamorano next raised a long list of other claimed bases
for relief. First, he claimed that he was a victim of domestic
violence and that, because his mother was getting permanent
residency, Zamorano was also eligible for a U-Visa.
Zamorano argued that the IJ erred because the IJ “never
interrogated [Zamorano] to see if he qualified for a U-Visa
and thus violated [Zamorano’s] due process.”
Zamorano next claimed that he was planning to marry his
fiancee and obtain adjustment of status through her. He
argued that the IJ violated his due process rights by failing to
present him with an application that a U.S. citizen could use
to petition to bring a fiancee into the United States for
marriage. He also stated that he was eligible for suspension
of deportation under 8 U.S.C. § 1254a(a)(1),4 cancellation of
4
The government may designate a foreign country for temporary
protective status (TPS) when the country has conditions such as armed
12 ZAMORANO V. GARLAND
removal, and adjustment of status. Finally, Zamorano
claimed he was eligible for asylum, withholding of removal,
and relief under the Convention Against Torture (CAT)
because he belongs to a group that is “targeted, extorted and
killed by gangs and cartels that work with authorities that the
Government is unwilling or unable to stop.” Zamorano
identified this group as people who have lived in the United
States for most of their lives but are deported to Mexico
without family ties in Mexico. He claimed that the IJ erred
in not presenting him with the opportunity to apply for these
various forms of relief.
The BIA dismissed Zamorano’s appeal. The BIA
affirmed the IJ’s denial of voluntary departure. It stated that,
contrary to Zamorano’s arguments, “his application was not
denied for his inability to demonstrate good moral character.”
The BIA rejected Zamorano’s argument that the IJ erred in
denying cancellation of removal, because “a cancellation
application was not before the Immigration Judge.” The BIA
also concluded that Zamorano was not eligible for suspension
of deportation.
The BIA then addressed Zamorano’s argument that he
was “denied due process because he was not provided the
opportunity to apply for” asylum, withholding of removal, or
CAT relief. According to the BIA, “[t]he record reflects that
when the Immigration Judge questioned him regarding his
fear of returning to Mexico, he did not express a fear of
persecution or harm upon return.” Rather, the BIA explained,
“Zamorano stated that he feared he did not ‘know how to start
a new life in a new country, pretty much.’” And “[w]hen the
conflict or an environmental disaster, which makes it unsafe for national
to return. See 8 U.S.C. § 1254a. Mexico is not designated for TPS.
ZAMORANO V. GARLAND 13
Immigration Judge asked if there were any other reasons to
fear return to Mexico, [Zamorano] answered ‘[N]ot that I
know of.’” Based on Zamorano’s answers to the IJ’s
inquiries as to Zamorano’s fear of returning to Mexico, the
BIA determined that the IJ “reasonably did not inquire
further” about Zamorano’s fear and that, “[w]ithout an
expressed fear of persecution if returned to Mexico, the
Immigration Judge was not required to advise the respondent
of the right to apply for asylum or withholding of removal, or
make the appropriate application available.”
Zamorano now petitions for review of the BIA decision
and the IJ decision.
II
We begin with Zamorano’s claim on appeal that he was
wrongly denied voluntary departure because the IJ abused his
discretion in failing to consider Zamorano’s positive factors,
including his good character.
Although we lack jurisdiction to reweigh the agency’s
exercise of discretion in denying voluntary departure, see
8 U.S.C. § 1252(a)(2)(B)(i), we do have jurisdiction to review
“constitutional claims or questions of law in challenges to
denials of voluntary departure under § 1229c,” Corro-
Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir. 2013); see
also Rojas v. Holder, 704 F.3d 792, 794 (9th Cir. 2012)
(same). “Therefore, we have jurisdiction to review whether
the BIA and IJ failed to consider the appropriate factors or
relied on improper evidence.” Anaya-Ortiz v. Holder,
594 F.3d 673, 676 (9th Cir. 2010) (citation omitted).
14 ZAMORANO V. GARLAND
In exercising discretion to grant or deny requests for
voluntary departure, IJs must “weigh favorable and
unfavorable factors by evaluating all of them, assigning
weight or importance to each one separately and then to all of
them cumulatively.” Campos-Granillo v. INS, 12 F.3d 849,
852 (9th Cir. 1993) (cleaned up); see also Rojas, 704 F.3d
at 794. Favorable factors include “family ties within the
United States; residence of long duration in this country,
particularly if residence began at a young age” as well as
“proof of rehabilitation if a criminal record exists; and other
evidence attesting to good character.” Campos-Granillo,
12 F.3d at 852 n.8. Where there is “no indication” in the IJ’s
decision that the IJ “considered any of those [favorable]
factors when deciding the voluntary departure issue,” we
generally vacate and remand to the BIA. See id. at 853; see
also In re Aguilar-Mendez, 28 I. & N. Dec. 262, 266–67 (BIA
2021) (citing Campos-Granillo, 12 F.3d at 852–53); In re
Arguelles-Campos, 22 I. & N. Dec. 811, 817 (BIA 1999)
(citing Campos-Granillo, 12 F.3d at 852).
In denying voluntary departure in this case, the IJ
considered Zamorano’s “criminal background, the repetitive
nature of the DUI offenses, which both result[ed] in property
damage, as well as the seriousness of those offenses and the
continued issues [Zamorano] apparently has with alcohol.”
But the IJ did not consider any positive factors weighing in
support of voluntary departure, such as Zamorano’s arrival in
the United States at a young age and his long-term residency
without departure, even though the IJ mentioned these factors
elsewhere in its opinion. Nor did the IJ mention Zamorano’s
claims regarding mitigating circumstances with respect to his
criminal convictions.
ZAMORANO V. GARLAND 15
We acknowledge that the IJ need not “follow a particular
formula or incant ‘magic words’” in exercising its discretion
to grant voluntary departure, and “a reviewing court must
‘uphold’ even ‘a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.’” Garland v.
Dai, 141 S. Ct. 1669, 1679 (2021) (quoting Bowman Transp.,
Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974)). But here there was no indication that the IJ
implicitly considered any favorable factors in making its
voluntary departure determination. See id. Because there
generally must be some indication that the IJ evaluated the
favorable factors when considering whether to grant or deny
voluntary departure, we grant Zamorano’s petition for review
and remand for further proceedings. See Campos-Granillo,
12 F.3d at 852–53.
III
Next, Zamorano claims that the IJ made procedural errors
during the immigration proceedings. Zamorano argues that
the IJ violated immigration regulations by failing to advise
Zamorano that he could apply for asylum and withholding of
removal, see 8 C.F.R. § 1240.11(c)(1), and by failing to
inform him of his apparent eligibility to apply for other
immigration benefits, including U nonimmigrant status, see
id. § 1240.11(a)(2).5 He also argues that the IJ failed to
discharge his duty to develop the record as to these claims.
5
Zamorano argues that the IJ made these same procedural errors with
respect to voluntary departure and Deferred Action for Childhood Arrivals
(DACA). We need not address these arguments because we agree that the
IJ erred in failing to evaluate Zamorano’s positive factors when
considering the availability of voluntary departure, see supra Part II, and
as discussed below, we lack jurisdiction over the arguments regarding his
eligibility for DACA, see infra Part III.A.3.
16 ZAMORANO V. GARLAND
See 8 U.S.C. § 1229a(b)(1); see also Jacinto v. INS, 208 F.3d
725, 733–34 (9th Cir. 2000). Finally, Zamorano claims that
these procedural errors violated his constitutional due process
rights.
A
We begin with Zamorano’s claim that the IJ failed to
discharge his duties under 8 C.F.R. § 1240.11. Under this
regulation, if an alien “expresses fear of persecution or harm
upon return to any of the countries to which the alien might
be removed” and “the alien has not previously filed an
application for asylum or withholding of removal that has
been referred to the immigration judge by an asylum officer
in accordance with” a specified regulation, then the IJ must
(i) “[a]dvise the alien that he or she may apply for asylum in
the United States or withholding of removal,” (ii) “[m]ake
available the appropriate application forms,” and
(iii) “[a]dvise the alien of the privilege” of representation by
counsel at no expense to the government and of the
consequences for “knowingly filing a frivolous application
for asylum.” 8 C.F.R. § 1240.11(c)(1)(i)–(iii). Further, an IJ
“shall inform the alien of his or her apparent eligibility to
apply for any of the benefits enumerated in this chapter
[Title 8, Chapter V of the Code of Federal Regulations] and
shall afford the alien an opportunity to make application
during the hearing.” Id. § 1240.11(a)(2).
In reviewing claims that an IJ failed to discharge the duty
to inform the alien of apparent eligibility for relief, we focus
on two issues. See C.J.L.G. v. Barr, 923 F.3d 622, 627 (9th
Cir. 2019) (en banc). First, the duty to advise an alien of
“apparent eligibility to apply for any of the benefits
enumerated in” Chapter V under § 1240.11(a)(2) is “triggered
ZAMORANO V. GARLAND 17
whenever the facts before the IJ raise a ‘reasonable possibility
that the petitioner may be eligible’” for such relief. Id.
at 626–27 (quoting Moran-Enriquez v. INS, 884 F.2d 420,
423 (9th Cir. 1989)). Although “the regulations do not
require a reviewing court to conclude that an alien would
certainly qualify for relief,” id. at 628 (cleaned up), the IJ’s
advice may not be required if “a petitioner would be eligible
for relief only after a change in the law or a change in his
personal circumstances,” id. at 628 n.5, such as when an alien
“‘needed not only time but also to either marry his U.S.-
citizen girlfriend or to have his parents successfully petition
for citizenship,’” id. (quoting United States v. Moriel-Luna,
585 F.3d 1191, 1198 n.2 (9th Cir. 2009)).
Second, a “failure to advise” about “apparent eligibility
to apply for any of the benefits enumerated,” in Chapter V, id.
at 626, can be excused “when the petitioner’s eligibility for
relief is not ‘plausible,’” id. at 627 (quoting United States v.
Rojas-Pedroza, 716 F.3d 1253, 1265–67 (9th Cir. 2013)).
Said otherwise, if a petitioner does not have a plausible basis
for a Chapter V benefit, the alien was not prejudiced by the
failure to advise. See id.; see also Rojas-Pedroza, 716 F.3d
at 1263.
1
We first consider whether the IJ erred in failing to advise
Zamorano of the right to apply for asylum and withholding of
removal or erred in failing to inform Zamorano of apparent
eligibility to apply for such relief. To be eligible for asylum,
the alien must have suffered persecution or have “a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42); see also id.18 ZAMORANO V. GARLAND
§ 1158(b)(1)(A); Duran-Rodriguez v. Barr, 918 F.3d 1025,
1028 (9th Cir. 2019). For withholding of removal, the alien
must show that his “life or freedom would be threatened
because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A); 8 C.F.R. § 1208.16(b).
Zamorano’s statement to the IJ, “I fear I don’t know how
to start a new life in a new country,” does not amount to an
expression of “fear of persecution or harm” under
§ 1240.11(c) that would have required the IJ to advise
Zamorano of the ability to apply for asylum or withholding of
removal and make such an application available. See Li v.
Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)
(defining persecution). Given that the fear of starting a new
life in a new country was his only stated fear, Zamorano did
not raise a “reasonable possibility” that he may be eligible for
asylum or withholding of removal that would trigger the IJ’s
duty to inform Zamorano of his “apparent eligibility” to apply
for such forms of relief under § 1240.11(a)(2). See C.J.L.G.,
923 F.3d at 627.
2
Zamorano next claims that the IJ erred under 8 C.F.R.
§ 1240.11(a)(2) by failing to advise him of his apparent
eligibility for adjustment of status through U nonimmigrant
status. U nonimmigrant status may be directly available for
certain victims of qualifying criminal activity who assist law
enforcement investigations, see 8 U.S.C.
§ 1101(a)(15)(U)(i)(I)–(III); see also 8 C.F.R. § 214.14(b),
and available derivatively for certain qualifying family
members of the victim, including the victim’s child (defined
as an unmarried person under age 21). See 8 U.S.C.
ZAMORANO V. GARLAND 19
§ 1101(a)(15)(U)(ii)(II); 8 C.F.R. § 214.14(a)(10); see also
8 U.S.C. § 1101(b)(1).
The IJ did not err under § 1240.11(a)(2), because that
regulation imposes a duty to inform aliens of their “apparent
eligibility” only as to benefits enumerated in Chapter V. See
8 C.F.R. § 1240.11(a)(2); C.J.L.G., 923 F.3d at 627
(describing the status at issue there as “[o]ne of the benefits
listed ‘in this chapter’”). U nonimmigrant status is not
enumerated in Chapter V, which governs the Department of
Justice and Executive Office for Immigration Review.
Rather, it is covered by Title 8, Chapter I of the Code of
Federal Regulations, which governs the Department of
Homeland Security. Within Chapter I, 8 C.F.R. § 214.14describes U nonimmigrant status eligibility and application
procedures for petitioning United States Citizenship and
Immigration Services (USCIS), and 8 C.F.R. § 245.24provides the eligibility requirements for U nonimmigrants to
adjust to lawful permanent resident status and provides the
procedures to apply for adjustment of status.6 There is no
provision in Chapter V parallel to § 214.14 or § 245.24 from
Chapter I. Therefore, because U nonimmigrant status is not
a Chapter V benefit, the IJ’s failure to address the
U nonimmigrant form of relief did not violate
§ 1240.11(a)(2).
3
Finally, Zamorano argues that the IJ erred under
§ 1240.11(a)(2) by failing to advise Zamorano of his apparent
6
Zamorano recognizes that the “this chapter” language in 8 C.F.R.
§ 1240.11(a)(2) “arguably means” that the section “does not apply to U-
visas.”
20 ZAMORANO V. GARLAND
eligibility for DACA. Zamorano did not raise this claim in
his brief before the BIA. Because such a claim raises “mere
procedural error,” Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004), and not a constitutional challenge beyond the
competence of the BIA to decide, the claim is unexhausted
and we lack jurisdiction to consider it, see id. at 677; 8 U.S.C.
§ 1252(d)(1).
Zamorano nevertheless contends that he is excused from
exhausting his claims before the BIA under our reasoning in
cases construing 8 U.S.C. § 1326(d), which governs collateral
challenges to removal orders in illegal reentry cases. The
argument goes as follows. Aliens who reenter the United
States after removal are liable for criminal penalties under
8 U.S.C. § 1326. In a criminal proceeding under § 1326,
aliens may challenge the validity of the underlying removal
order only if they meet certain requirements, including that
“the alien exhausted any administrative remedies that may
have been available to seek relief against the order.” 8 U.S.C.
§ 1326(d)(1). In this context, we have held that the
exhaustion requirement is excused if the IJ in the underlying
removal proceeding “failed to inform the defendant of his or
her apparent eligibility for relief as required by 8 C.F.R.
§ 1240.11(a)(2).” Rojas-Pedroza, 716 F.3d at 1262 (internal
quotation marks omitted). We excuse exhaustion in this
context because “we deem the alien’s waiver of the right to
an administrative appeal to have been insufficiently
‘considered and intelligent.’” Id. (quoting United States v.
Vidal-Mendoza, 705 F.3d 1012, 1015 (9th Cir. 2013)).
Zamorano argues that we should similarly excuse his failure
to exhaust his DACA claim in his appeal to the BIA because
of the IJ’s failure to inform Zamorano of his apparent
eligibility for DACA, just as we excuse the failure to exhaust
administrative remedies in the § 1326(d) context.
ZAMORANO V. GARLAND 21
This argument fails. As an initial matter, the Supreme
Court has instructed us that “a court may not excuse a failure
to exhaust” when, as in § 1326(d), Congress “uses
‘mandatory language’ in an administrative exhaustion
provision.” United States v. Palomar-Santiago, 141 S. Ct.
1615, 1621 (2021) (quoting Ross v. Blake, 578 U.S. 632, 639
(2016)), and this holding casts doubt on the continued vitality
of our exhaustion excusal rule under § 1326(d). But we need
not resolve the effect of Palomar-Santiago in the § 1326(d)
context, because, in any event, our judge-made exception to
§ 1326(d)(1) does not apply to the jurisdictional exhaustion
requirement of § 1252(d)(1).7 Federal courts “must
‘scrupulously confine their own jurisdiction to the precise
limits which a federal statute has defined.’” Magana v.
Commonwealth of N. Mariana Islands, 107 F.3d 1436, 1443
(9th Cir. 1997) (alteration adopted) (quoting Healy v. Ratta,
292 U.S. 263, 270 (1934)). Looking to those precise statutory
limits here, “[t]he plain language of § 1252(d)(1) . . .
specifically mandates that the exhaustion of administrative
remedies is a prerequisite to our jurisdiction.” Barron,
358 F.3d at 677. A judge-made rule designed to give a
criminal defendant more leeway to bring a collateral
challenge to a removal order cannot overrule Congress’s
limits on our subject-matter jurisdiction. Therefore, we hold
that the exhaustion exception under § 1326(d) does not apply
to § 1252(d)(1).
7
8 U.S.C. § 1252(d)(1) provides, “A court may review a final order
of removal only if— (1) the alien has exhausted all administrative
remedies available to the alien as of right . . . .”
22 ZAMORANO V. GARLAND
B
We now turn to Zamorano’s statutory and constitutional
claims. By statute, an IJ shall, among other things,
“administer oaths, receive evidence, and interrogate, examine,
and cross-examine the alien and any witnesses.” 8 U.S.C.
§ 1229a(b)(1). We have concluded that this statutory
language implicitly encompasses two additional procedural
protections. See Agyeman v. INS, 296 F.3d 871, 876–86 (9th
Cir. 2002); Jacinto, 208 F.3d at 727–28.
First, the IJ has an obligation to explain to an alien what
he must prove to establish the basis for the relief he seeks.
Agyeman, 296 F.3d at 883. “We have previously emphasized
the importance of explaining to an alien what evidence will
demonstrate their eligibility for relief from deportation.” Id.(citing Jacinto, 208 F.3d at 728). In Agyeman, for instance,
the IJ informed an alien seeking adjustment of status that
unless his wife was physically present at the next hearing, his
application would be denied. Id. at 878–79. The alien’s wife
had medical issues that prevented her from attending the
hearing, and the IJ denied the alien’s application because he
had failed to establish the validity of his marriage. Id. We
granted the alien’s petition, holding that the IJ’s failure to
explain the types of evidence that could be used to
demonstrate the alien’s eligibility for relief from removal was
an error. Id. at 882–83. We explained that “[t]he IJ must be
responsive to the particular circumstances of the case,
including what types of evidence the alien can and cannot
reasonably be expected to produce in support of his
applications for relief from deportation.” Id. at 884.
Second, if the alien is proceeding pro se, the IJ has an
obligation to fully develop the record, meaning the IJ must
ZAMORANO V. GARLAND 23
“scrupulously and conscientiously probe into, inquire of, and
explore for all the relevant facts.” Jacinto, 208 F.3d at 733(quoting Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.
1985)). “The judge must be especially diligent in ensuring
that favorable as well as unfavorable facts are elicited.” Id.(cleaned up).
These procedural protections do not, however, detract
from the alien’s statutory burden of proof to establish that the
alien satisfies the applicable eligibility requirements for the
relief sought, 8 U.S.C. § 1229a(c)(4), or from the alien’s
obligation to provide evidence “in support of the applicant’s
application for relief or protection,” id. § 1229a(c)(4)(B).
Nor does the IJ’s duty “transform IJs into attorneys for aliens
appearing pro se in deportation proceedings.” Agyeman,
296 F.3d at 884; see also Hussain v. Rosen, 985 F.3d 634,
643–45 (9th Cir. 2021).
Where the IJ has failed to discharge these procedural
duties under § 1229a(b), we must consider whether the alien
has suffered a constitutional due process violation. “A due
process violation occurs where ‘(1) the proceeding was so
fundamentally unfair that the alien was prevented from
reasonably presenting his case, and (2) the alien demonstrates
prejudice, which means that the outcome of the proceeding
may have been affected by the alleged violation.’”
Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009) (per
curiam) (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614,
620–21 (9th Cir. 2006)). A violation of the IJ’s statutory duty
may affect the outcome of the proceedings if “the IJ’s
inadequate explanation of the hearing procedures and failure
to elicit pertinent facts prevented the alien from presenting
evidence relevant to their claim.” Agyeman, 296 F.3d
at 884–85. We may infer that the alien suffered prejudice
24 ZAMORANO V. GARLAND
even in “the absence of any specific allegation as to what
evidence [the alien] would have presented had the IJ
adequately explained what he needed to prove to demonstrate
his eligibility for relief and had he been provided the
opportunity to present that evidence.” Id. at 885.
We now consider whether the IJ here violated his duty to
sufficiently explore for all facts relevant to asylum,
withholding of removal, and U nonimmigrant status, and to
inform Zamorano of what evidence he needed to establish
these claims.
With respect to asylum and withholding of removal, the
IJ asked pertinent questions directed to determining whether
Zamorano was eligible for such relief based on a fear of
persecution upon return to Mexico. But once Zamorano
testified that the only reason he feared returning to Mexico
was that he didn’t “know how to start a life in a new
country,” there was nothing left for the IJ to do, because
Zamorano’s own testimony established there was no basis for
asylum or withholding of removal. By contrast, the alien in
Jacinto attempted to testify in support of her claim that
“members of the Guatemalan military were persecuting her
and her family,” 208 F.3d at 727, but the IJ frequently
interrupted her testimony, “never gave her the opportunity to
present her own additional narrated statement that might have
added support to her claim,” id. at 734, and failed to explain
how these facts would be relevant to a claim for asylum.
Unlike the IJ in Jacinto, the IJ here did not deprive Zamorano
of a reasonable opportunity to develop his own story relevant
to a claim for asylum or withholding of removal. Because
Zamorano did not have a plausible claim for asylum or
withholding of removal based on his testimony, and because
the IJ did not deprive Zamorano of the chance to provide such
ZAMORANO V. GARLAND 25
a plausible basis for this relief, the IJ did not violate his
statutory duty to develop the record or to advise Zamorano
about what types of evidence Zamorano could use to support
his (nonexistent) claims.8
Zamorano next claims that the IJ violated his duty to
explore for all facts relevant to Zamorano’s possible
U nonimmigrant status. We disagree, because Zamorano did
not indicate he was seeking such relief and nothing in the
proceedings would have prompted the IJ to develop more
facts on this issue. Zamorano’s testimony that his mother
was seeking a U-Visa was in response to the IJ’s questions
regarding whether any of Zamorano’s relatives had lawful
status in the United States, and therefore could assist
Zamorano in applying for adjustment of status. In light of
Zamorano’s testimony, Zamorano’s mother did not have
lawful status and therefore could not give him such help.
Because Zamorano’s testimony indicated that he was over
21 years old at the time of the hearing, Zamorano would not
have qualified for derivative U nonimmigrant relief through
his mother. See 8 U.S.C. § 1101(a)(15)(U)(ii)(II); 8 C.F.R.
§ 214.14(a)(10) (defining qualifying family members for
derivative U nonimmigrant status); id. § 214.14(f)(1)
8
Contrary to Zamorano, the Fourth Circuit’s decision in Quintero v.
Garland, ___ F.3d ___, 2021 WL 2133916, at *17 (4th Cir. May 26,
2021), does not affect our analysis here. In Quintero, the Fourth Circuit
held that when pro se petitioners “whose factual circumstances warrant”
relief struggled in “articulating the legal bases for his or her claim,” the IJ
had a legal duty to explain and explore facts relevant to the legal elements
of petitioners’ claims for relief. See id. at *11–12. Even if we agreed that
§ 1229a(b)(1) imposes this requirement on an IJ, the IJ here discharged
any obligation to explore relevant facts regarding Zamorano’s fear of
returning to Mexico; the facts simply did not support any plausible basis
for an application for relief.
26 ZAMORANO V. GARLAND
(describing eligibility for qualifying family members, such as
children); see also 8 U.S.C. § 1101(b)(1) (defining “child” as
“unmarried person under twenty-one years of age”). Finally,
Zamorano gave no indication that he suffered from domestic
violence himself or that he himself was seeking direct U
nonimmigrant status as a victim of qualifying criminal
activity. See 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R.
§ 214.14(a)(14).9 Therefore, nothing alerted the IJ that more
questioning was required to probe for facts relating to direct
or derivative U nonimmigrant status.
Moreover, any error in failing to ask additional probing
questions was harmless. “Neither the BIA nor IJs have
authority over U visa petitions; that authority rests solely with
United States Citizenship and Immigration Services.” Flores
v. Barr, 930 F.3d 1082, 1090 (9th Cir. 2019) (per curiam).
The IJ would have authority only to continue the proceeding
“at the request of a petitioner who has applied for a U Visa.”
Ramirez Sanchez v. Mukasey, 508 F.3d 1254, 1255–56 (9th
Cir. 2007) (per curiam). But no action of the IJ prevented
Zamorano from petitioning for U nonimmigrant status. Even
if an alien is in removal proceedings, the alien can still obtain
U nonimmigrant status, and then request a termination of
immigration proceedings. 8 C.F.R. § 214.14(c)(1)(i). Even
after a final order of removal, an alien may petition for U
9
8 U.S.C. § 1101(a)(15)(U)(i) sets forth the eligibility requirements
for U nonimmigrant status. It requires, among other things, that “the alien
has suffered substantial physical or mental abuse as a result of” the
qualifying criminal activity, that the alien “possesses information
concerning” the qualifying criminal activity, and that the alien “has been
helpful, is being helpful, or is likely to be helpful to” certain government
entities “investigating or prosecuting” the qualifying criminal activity.
8 U.S.C. § 1101(a)(15)(U)(i)(I)–(III); see also 8 C.F.R. § 214.14(b)
(providing additional information regarding eligibility).
ZAMORANO V. GARLAND 27
nonimmigrant status and request a stay of removal. Id.§ 214.14(c)(1)(ii). If Zamorano were eligible for U
nonimmigrant status (as he suggests in his BIA appeal brief),
he had ample time to apply for it, and he has not explained
how the IJ’s failure to develop additional facts at the
immigration proceeding affected his ability to obtain such
relief. Therefore, Zamorano fails to show any prejudice that
could support his due process claim.
Nor did Zamorano show any prejudice from the BIA’s
failure to address his argument on appeal that he was a victim
of domestic violence or was eligible for U nonimmigrant
relief through his mother. As a general rule, the BIA errs if
it ignores material issues or arguments raised on appeal, or
fails to make a finding on an essential issue. See Chen v.
Ashcroft, 362 F.3d 611, 621–22 (9th Cir. 2004). Any error
here was harmless. We apply “traditional administrative law
principles” in reviewing immigration agency decisions, Dai,
141 S. Ct. at 1679, which include the rule that reviewing
courts shall take “due account” of “the rule of prejudicial
error,” see 5 U.S.C. § 706; see also, e.g., Khudaverdyan v.
Holder, 778 F.3d 1101, 1107 n.3 (9th Cir. 2015) (applying the
harmless error rule); Vides-Vides v. INS, 783 F.2d 1463, 1467
n.2 (9th Cir. 1986) (holding that the IJ erred in stating that the
alien’s decision to remain neutral was not a political opinion,
but the error was harmless because the alien “failed to show
that he will be singled out for persecution because of his
neutrality”).10 As noted above, Zamorano discussed his
mother’s “domestic violence case” without even hinting to
the IJ that he was also a victim of domestic violence or was
10
Other circuits proceed similarly. See, e.g., Yuan v. Holder,
642 F.3d 420, 427 (3d Cir. 2011) (collecting harmless error cases from the
First, Second, Fourth, Seventh, and Tenth Circuits).
28 ZAMORANO V. GARLAND
seeking U nonimmigrant status, and we have approved the
BIA’s practice of “refusing to address arguments raised for
the first time on appeal” that could have been made to the IJ.
See Honcharov v. Barr, 924 F.3d 1293, 1295 (9th Cir. 2019)
(per curiam). Moreover, Zamorano suffered no prejudice
because, as explained above, he had no apparent eligibility
for purposes of § 1240.11(a)(2) and did not recount any facts
or personal history that would trigger the IJ’s duty to develop
the record. See 8 U.S.C. § 1229a(b)(1). “We will not usually
overturn agency action unless there is a showing of prejudice
to the petitioner.” Kazarian v. USCIS, 596 F.3d 1115, 1119
(9th Cir. 2010) (quoting Safari Aviation Inc. v. Garvey,
300 F.3d 1144, 1150 (9th Cir. 2002)). Therefore, we reject
Zamorano’s argument regarding the BIA’s procedural error.
PETITION FOR REVIEW GRANTED IN PART,
DENIED IN PART, AND DISMISSED IN PART.