Javier Pineda Salgado v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER PINEDA SALGADO, No. 19-72350
Petitioner, Agency No. A070-928-353
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 11, 2022**
Pasadena, California
Before: IKUTA, LEE, and FORREST, Circuit Judges.
Javier Pineda Salgado, a native and citizen of Mexico, petitions for review of
the Immigration Judge’s (IJ) decision affirming the asylum officer’s negative
reasonable fear determination. Salgado claims that the IJ deprived him of his right
to counsel by conducting portions of the reasonable fear hearing without his
*
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).
attorney. Because Salgado failed to exhaust his claim, we lack jurisdiction and
dismiss the petition.
We may review a final order of removal only if the petitioner “has exhausted
all administrative remedies available to [him] as of right.” 8 U.S.C. § 1252(d)(1).
Section 1252(d)(1)’s exhaustion requirement is a “prerequisite to our jurisdiction”
and “generally bars us, for lack of subject-matter jurisdiction, from reaching the
merits of a legal claim not presented in administrative proceedings below.” Barron
v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004). If an alien fails to raise his right
to counsel claim before the IJ, then the exhaustion requirement is not satisfied. See
id. at 678; Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009).
Before the IJ, Salgado never argued that his right to counsel was violated. At
the September 9, 2019, hearing, Salgado’s attorney failed to enter his appearance
even after the IJ granted him multiple continuances to do so. So, the IJ proceeded
without Salgado’s attorney, but Salgado did not object. Later that day, when
Salgado’s attorney was finally able to enter his appearance, the attorney requested
an additional continuance instead of objecting to the proceedings conducted in his
absence. Finally, at the September 13, 2019, hearing, Salgado’s new counsel never
argued that Salgado had been previously deprived of his right to counsel at the
September 9 hearing. Therefore, Salgado did not exhaust his right to counsel claim.
DISMISSED.
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