NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR RODOLFO QUINTEROS No. 15-71693
ZAVALA, AKA Hector R. Quinteros,
Agency No. A094-307-391
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2018
San Francisco, California
Before: PAEZ and IKUTA, Circuit Judges, and VITALIANO,** District Judge.
Hector Rodolfo Quinteros Zavala (“Quinteros”), a native and citizen of El
Salvador, petitions for review of an order of the Board of Immigration Appeals
(“BIA”) affirming the denial of his application for withholding of removal under 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
U.S.C. § 1231(b)(3)(A). We deny the petition in part and dismiss it in part.
1. The agency’s adverse credibility determination was supported by
substantial evidence. The BIA properly concluded that the immigration judge
(“IJ”) did not clearly err in making an adverse credibility determination on the
basis of an inconsistency in Quinteros’s testimony and a material omission of fact
from Quinteros’s initial statement in support of his application for withholding of
removal. See 8 U.S.C. § 1158(b)(1)(B)(iii); id. § 1231(b)(3)(C). Although
Quinteros offered plausible explanations for the inconsistency and factual
omission, the IJ reasonably rejected those explanations. See Zamanov v. Holder,
649 F.3d 969, 974 (9th Cir. 2011). Absent Quinteros’s credible testimony, the
other evidence in the record was insufficient to carry his burden of proving he was
eligible for relief.
2. The BIA did not err in rejecting Quinteros’s Fifth Amendment due
process claim of ineffective assistance of counsel. First, Quinteros did not comply
with the procedural requirements set out in Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988). See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). Second, even
if we were to excuse non-compliance with the Lozada requirements, Quinteros has
not established that his former counsel’s alleged conflict of interest in representing
Quinteros’s brother in removal proceedings before the same IJ resulted in
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prejudice.1 In addition, counsel’s failure to obtain certified translations, and lay a
proper foundation, for certain documents did not prejudice Quinteros because,
despite any foundational shortcomings, the IJ nonetheless considered those
documents in his oral decision.
3. The IJ did not violate Quinteros’s due process rights by failing to recuse
himself sua sponte. The record does not demonstrate that the IJ had a “personal
. . . bias stemming from” his knowledge of Quinteros’s brother’s removal
proceedings, over which the IJ also presided. Vargas-Hernandez v. Gonzales, 497
F.3d 919, 925 (9th Cir. 2007) (quoting Matter of Exame, 18 I. & N. Dec. 303, 306
(BIA 1982)). To the contrary, the IJ expressly stated that he did not know whether
he could remember Quinteros’s brother’s case, and that he was not “making . . .
any connections” or “prejudging anything.”
4. We lack jurisdiction to review Quinteros’s remaining claims. First,
Quinteros argues that the IJ violated his due process rights by failing to consider all
of the evidence in the record. Because the BIA could have corrected any such
1
We do not need to decide whether, in the context of a Fifth Amendment due
process challenge, prejudice is presumed where an actual and concurrent conflict
of interest exists. Cf. Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980) (Sixth
Amendment context). We conclude that an “actual” conflict is not at issue here
because Quinteros has not demonstrated that his former counsel’s alleged conflict
of interest “adversely affect[ed] [his] performance.” Rowland v. Chappell, 876
F.3d 1174, 1191 (9th Cir. 2017) (quoting Mickens v. Taylor, 535 U.S. 162, 171
(2002)).
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procedural error by remanding for the IJ to consider all of the evidence, Quinteros
was required to raise this claim before the BIA in the first instance. See Sola v.
Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam). By failing to do so,
Quinteros did not exhaust administrative remedies and thus we lack jurisdiction to
consider this claim. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674,
677 (9th Cir. 2004). Second, Quinteros also failed to exhaust administrative
remedies as to his claim for relief under the Convention Against Torture (“CAT”).
The BIA properly declined to consider that claim on the ground that Quinteros
expressly waived it before the IJ. Finally, we lack jurisdiction to review the IJ’s
discretionary denial of Quinteros’s application for voluntary departure. See 8
U.S.C. § 1252(a)(2)(B)(i); Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011),
overruled on other grounds by Moncrieffe v. Holder, 569 U.S. 184 (2013).
PETITION DENIED IN PART; DISMISSED IN PART.
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