Ruben Mencias-Soto v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RUBEN MENCIAS-SOTO, No. 19-72722
Petitioner, Agency No. A098-890-074
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2021**
Pasadena, California
Before: GRABER, CHRISTEN, and OWENS, Circuit Judges.
Ruben Mencias-Soto, a native and citizen of Honduras, petitions for review
of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal from
an immigration judge’s (IJ) order denying his applications for withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal and protection under the Convention Against Torture (CAT). We review
questions of law de novo and factual findings for substantial evidence. Brezilien v.
Holder, 569 F.3d 403, 411 (9th Cir. 2009). We have jurisdiction pursuant to
8 U.S.C. § 1252(a), and we dismiss in part and deny in part Mencias-Soto’s
petition.1
1. Mencias-Soto argues the IJ violated his due process rights by: (1)
failing to adequately explain the proceedings, including the requirements for
withholding of removal and CAT claims; (2) failing to ask follow-up questions that
would have fully developed the record; and (3) improperly defining Mencias-
Soto’s applicable particular social groups. Mencias-Soto argues he exhausted
these claims before the BIA because he requested the BIA “overturn the IJ’s
decision ‘and appropriately weigh the evidence, in its entirety, for due process.’”
Mencias-Soto did not exhaust these claims. Although Mencias-Soto appeared pro
se before the BIA and we construe his claims liberally, see Agyeman v. INS, 296
F.3d 871, 878 (9th Cir. 2002), his notice of appeal and brief to the BIA do not
mention these three claimed errors, and his passing reference to “due process” was
insufficient to give the BIA “an opportunity to consider and remedy the particular
1
Because the parties are familiar with the facts, we recite only those facts
necessary to decide the petition.
2
procedural errors he raises now.” See Tall v. Mukasey, 517 F.3d 1115, 1120 (9th
Cir. 2008). We therefore lack jurisdiction over these claims. Id.
2. Mencias-Soto argues the IJ violated his due process rights by
excluding from the record nineteen photographs of his deceased brother. Mencias-
Soto argues he was prejudiced by the exclusion because, he asserts, the
photographs likely would have helped establish past persecution and supported his
claim regarding the risk of future persecution and torture. We disagree. The IJ: (1)
stated he took the photographs into account in reaching his decision on Mencias-
Soto’s petition; (2) described in detail on the record what the photographs
depicted; and (3) found Mencias-Soto’s testimony about his brother’s murder to be
credible. Because Mencias-Soto has not shown admission of the photographs
would have strengthened support for his claimed fear of future persecution and
torture, we conclude he has not established he was prejudiced by the IJ’s ruling.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
3