Elden Ortega Ortiz v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELDEN MAURICIO ORTEGA ORTIZ, No. 19-72735
Petitioner, Agency No. A201-436-508
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 3, 2021**
Seattle, Washington
Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,*** Senior
District Judge.
Petitioner Elden Mauricio Ortega Ortiz (“Petitioner”), a native and citizen of
Honduras, petitions for review of an order of the Board of Immigration Appeals
*
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).
***
The Honorable Morrison C. England, Jr., Senior United States District
Judge for the Eastern District of California, sitting by designation.
(“BIA”) summarily affirming the denial of Petitioner’s applications for asylum,
withholding of removal, and protection under the Convention Against Torture by
the immigration judge (“IJ”). Petitioner claims the IJ violated his due process
rights by not conducting a proper inquiry into his competency and by failing to
adequately explain the proceedings or legal requirements to prove his case. These
contentions, however, were not raised before the BIA.
We may review a final order of removal only if “the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
“The petitioner’s failure to raise an issue to the BIA constitutes a failure to exhaust,
depriving this court of jurisdiction.” Zhang v. Ashcroft, 388 F.3d 713, 721
(9th Cir. 2004). “While we retain jurisdiction to review due process challenges to
immigration decisions, we may not entertain due process claims based on
correctable procedural errors unless the alien raised them below.” Agyeman v. INS,
296 F.3d 871, 877 (9th Cir. 2002) (citations omitted).
Here, Petitioner’s due process claims are “mere procedural error[s]” that the
BIA could have remedied by ordering a rehearing to allow for further assistance to
Petitioner as a pro se litigant and for further inquiry regarding Petitioner’s
competency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); Tall v.
Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008). Because Petitioner failed to
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exhaust the due process claims raised in his petition for review, we lack
jurisdiction over his petition.
PETITION DISMISSED.
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