NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 13 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEOVITO DE JESUS-VALENTIN, No. 22-1357
Agency No.
Petitioner, A088-659-652
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2024**
Portland, Oregon
Before: GOULD, BYBEE, and BRESS, Circuit Judges.
Leovito DeJesus-Valentin petitions for review of a Board of Immigration
Appeals (“BIA”) dismissal of his appeal of an oral decision by an immigration
judge (“IJ”). The IJ denied DeJesus-Valentin’s applications for withholding of
*
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).
removal and protection under the Convention Against Torture (“CAT”) after
finding that DeJesus-Valentin was not credible. The IJ alternatively found
DeJesus-Valentin ineligible for relief because: (1) there was no nexus between past
or future harms claimed and any protected ground; (2) DeJesus-Valentin had an
ability to safely relocate within Mexico; and (3) there was no likelihood of torture
of DeJesus-Valentin by the government or by an actor with government
acquiescence. The BIA noted the IJ’s adverse credibility determination and denied
relief based on the IJ’s findings about nexus, internal relocation, and likelihood of
torture. DeJesus-Valentin challenges the BIA’s decision, contending that the BIA
violated his due process rights by applying Tenth Circuit, instead of Ninth Circuit,
case law. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition
for review.
Where “the BIA agrees with and incorporates specific findings of the IJ
while adding its own reasoning, we review both decisions.” Bhattarai v. Lynch,
835 F.3d 1037, 1042 (9th Cir. 2016). We review de novo claims of due process
violations. Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010), as
amended.
The parties agree, and are correct, that the BIA erred in applying Tenth
Circuit case law. Venue is proper for petitions for review of deportation orders in
“the court of appeals for the judicial circuit in which the immigration judge
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completed the proceedings.” 8 U.S.C. § 1252(b)(2). “[T]he designated hearing
location remains unaffected even if an immigration judge from a different location
is conducting the hearing by video conference, or if the records in the case are filed
with, and maintained by, an administrative control court in a different city.”
Plancarte Sauceda v. Garland, 23 F.4th 824, 832 (9th Cir. 2022) (alteration in
original) (quoting Jurisdiction and Venue in Removal Proceedings, 72 Fed. Reg.
14494, 14495 (Mar. 28, 2007)). Venue is proper here in the Ninth Circuit because
the hearings took place in either Portland, Oregon, or Boise, Idaho. Although the
agency transferred administrative control of the case to Utah, and although the IJ
who made the final orders appeared by video conference from Utah, the IJ stated
expressly in each hearing over which he presided that the hearings were taking
place in Boise. Thus, the BIA erred when, in its analysis of the IJ’s alternative
reasons to deny relief, it treated Tenth Circuit case law as binding authority and
Ninth Circuit case law as persuasive.
However, that error of the BIA did not prejudice DeJesus-Valentin. “To
prevail on a due process challenge to deportation proceedings, [a noncitizen] must
show error and substantial prejudice.” Grigoryan v. Barr, 959 F.3d 1233, 1240
(9th Cir. 2020) (quoting Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)).
DeJesus-Valentin contends that there are relevant discrepancies between Ninth and
Tenth Circuit case law. First, he contends that the Tenth Circuit does not allow
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threats alone to qualify as persecution while the Ninth Circuit does. However, the
agency’s decision to deny relief did not focus on whether the harms DeJesus-
Valentin experienced rise to the level of persecution; rather, the BIA’s analysis
focused on: (1) the lack of nexus between harms and any protected ground;
(2) DeJesus-Valentin’s ability to relocate within Mexico; and (3) no showing of a
likelihood of torture by the government or by an actor with government
acquiescence. Second, DeJesus-Valentin argues that the Tenth Circuit requires a
heightened showing for nexus. While the IJ and BIA did analyze nexus, the cases
to which DeJesus-Valentin cites do not show a discrepancy between the Ninth and
Tenth Circuits. See, e.g., Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir.
2010) (explaining the BIA’s “one central reason” doctrine); Madrigal v. Holder,
716 F.3d 499, 506 (9th Cir. 2013) (same). Both circuits explain that in a mixed-
motive case, the protected ground must be “one central reason.” And here, the
agency made a factual finding that there was only one reason DeJesus-Valentin
experienced harm in the past: “the unfortunate circumstance of being the son of an
abusive person.” DeJesus-Valentin does not identify any discrepancies in circuit
case law that are dispositive of his case, so the BIA’s error did not prejudice him.
PETITION DENIED.
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