Javier Pineda Salgado v. Merrick Garland ( 2022 )


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  •                               NOT FOR PUBLICATION                        FILED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.
    2
    

Document Info

Docket Number: 19-72350

Filed Date: 3/18/2022

Precedential Status: Non-Precedential

Modified Date: 3/18/2022