Douglas Flores-Gonzalez v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAR 21 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

DOUGLAS FLORES-GONZALEZ, No. 08-70911

Petitioner, Agency No. A098-384-860

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted March 8, 2011 **

Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

Douglas Flores-Gonzalez, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order both dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his application for

asylum, and denying his claim for withholding of removal. Our jurisdiction is

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
governed by 8 U.S.C. § 1252. We review de novo questions of law and review for

substantial evidence factual findings. See Ghaly v. INS, 58 F.3d 1425, 1429 (9th

Cir. 1995). We deny the petition for review.

We reject Flores-Gonzalez’s claim that the IJ erred by failing to address

withholding of removal because any error committed by the IJ was rendered

harmless by the BIA’s application of the correct legal standard. See id. at 1430.

Flores-Gonzalez’s contention that the BIA improperly concluded that the IJ had

ruled on withholding of removal is belied by the record.

We lack jurisdiction to review Flores-Gonzalez’s claim that the IJ failed to

address his CAT claim because he did not exhaust it before the agency. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Furthermore, because

Flores-Gonzales did not adequately raise a CAT claim in his notice of appeal to the

BIA, the BIA did not err by not addressing it.

Flores-Gonzalez’s contention that there is no record of the arguments he

raised to the BIA is belied by the record, given the arguments he raised in the

notice of appeal.

Finally, we reject Flores-Gonzalez’s contention that the agency erred

because it did not make a verbatim transcript of proceedings. After identifying a

problem with the tape recording, the IJ read her notes into the record and provided

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Flores-Gonzalez and his counsel an opportunity to make corrections. Both parties

agreed this accurately reflected and would be regarded as the testimony, and

Flores-Gonzalez has not demonstrated how this affected the outcome of his

proceedings. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error

and prejudice to prevail on a due process claim); United States v. Calles-Pineda,

627 F.2d 976, 977 (9th Cir. 1980) (violation of INS regulation requiring verbatim

recording of deportation hearings will not invalidate deportation unless the

violation prejudiced a protected interest).

PETITION FOR REVIEW DENIED.

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