NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ELENILSON A. COTO DELGADO, No. 22-984 Agency No. Petitioner, A029-212-247 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 8, 2023 San Francisco, California
Before: FRIEDLAND and M. BENNETT, Circuit Judges, and R. BENNETT, Senior District Judge. **
Petitioner Elenilson Armando Coto Delgado (“Coto”) is a native and
citizen of El Salvador who most recently entered the United States in 2019.
Through the instant petition, Coto challenges a ruling of the Board of Immigration
Appeals (“BIA”) upholding an oral decision of an Immigration Judge (“IJ”), who
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. found that Coto’s Louisiana conviction for second-degree battery constitutes a
particularly serious crime barring withholding of removal. Coto also challenges
the BIA’s conclusion that he waived review of his CAT claim. We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
I. Administrative Exhaustion
“This Court may review a final order of removal only if ‘the alien has
exhausted all administrative remedies available to the alien as of right.’” Sola v.
Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (quoting 8 U.S.C. § 1252(d)(1)).
“Exhaustion requires a non-constitutional legal claim to the court on appeal to
have first been raised in the administrative proceedings below, and to have been
sufficient to put the BIA on notice of what was being challenged.” Umana-
Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (quoting Bare v. Barr, 975
F.3d 952, 960 (9th Cir. 2020)).1 This requirement is not applied “in a formalistic
manner.” Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir. 2018) (quoting
Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011)). While “[a] petitioner must
do more than make a ‘general challenge to the IJ’s decision,’” they “may raise a
1 The Supreme Court recently held that the 8 U.S.C. § 1252(d)(1) exhaustion requirement “is a non-jurisdictional rule ‘merely prescrib[ing] the method by which the jurisdiction granted the courts by Congress is to be exercised.’” Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1114 (2023) (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004)). The exhaustion requirement is therefore “subject to waiver and forfeiture.” Id. at 1116. However, because the government argues that Coto failed to exhaust administrative remedies as to his CAT claim and his challenge to the IJ’s consideration of his sentence, it has not waived or forfeited this requirement.
2 22-984 general argument in the administrative proceeding and then raise a more specific
legal issue on appeal.” Bare, 975 F.3d at 960 (quoting Zara v. Ashcroft, 383 F.3d
927, 930 (9th Cir. 2004)). “What matters is that the BIA was sufficiently on notice
so that it ‘had an opportunity to pass on this issue.’” Id. (quoting Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam)).
Coto failed to exhaust his argument that the nature of his sentence does not
suggest he was convicted of a particularly serious crime. On appeal, Coto argues
that his “low-term, concurrent, suspended sentence” is not probative of severity,
and that the BIA erred by finding “that ‘hard labor’ was proof of severity, when
in fact, that term simply means the offense is a felony.” But Coto did not raise
these arguments before the BIA in any manner. The only legal argument he
offered to challenge the IJ’s finding that he had been convicted of a particularly
serious crime was that the IJ erred by considering hearsay in a police report.
Nowhere did he suggest that the IJ considered improper factors when evaluating
“the type of sentence imposed.” Id. at 961 (citation omitted). It is evident that the
BIA did not have sufficient notice of this issue, as the BIA did not review the IJ’s
evaluation of Coto’s sentence anywhere in its opinion.2 Accordingly, this issue is
unexhausted.
2 Coto argues that the BIA exhausted this issue for him by stating that “the Immigration Judge correctly considered the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction.” Viewed in context, this sentence from the BIA opinion merely affirms that the IJ applied the correct legal standard. The only factor from In re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982), that the BIA analyzed with any substance or depth was
3 22-984 Coto did exhaust his claim under the Convention Against Torture (“CAT”).
Ordinarily, when the petitioner presents some issues in his Notice of Appeal but
fails to raise those issues in his brief to the BIA, he “will . . . be deemed to have
exhausted only those issues he raised and argued in his brief before the BIA.”
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam).
However, the government argued against Coto’s CAT claim on the merits in its
responsive briefings before the BIA, and the BIA addressed that issue in its
opinion. In the specific context of this case, these facts are sufficient to indicate
that the BIA had notice of the issue and an opportunity to address it on the merits.
Regardless, the BIA found that Coto forfeited this issue by failing to argue
it in his brief on administrative appeal. Cf. Cui v. Garland, 13 F.4th 991, 999 n.6
(9th Cir. 2021) (explaining in the context of federal appellate review that the
doctrine of forfeiture applies where an appellant fails to argue an issue in their
opening brief). While the BIA had sufficient notice of this issue for us to deem it
exhausted, the agency did not abuse its discretion by finding the issue forfeited
and declining to address it on the merits. See, e.g., In re R-A-M-, 25 I. & N. Dec.
657, 658 n.2 (B.I.A. 2012) (applying doctrine of waiver in administrative appeal);
see also Lopez v. Garland, 60 F.4th 1208, 1212 (9th Cir. 2023) (noting that the
the sole factor Coto raised on appeal—specifically, the IJ’s reliance on the police report to determine “the circumstances and underlying facts of the conviction.” Bare, 975 F.3d at 961 (citation omitted).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ELENILSON A. COTO DELGADO, No. 22-984 Agency No. Petitioner, A029-212-247 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 8, 2023 San Francisco, California
Before: FRIEDLAND and M. BENNETT, Circuit Judges, and R. BENNETT, Senior District Judge. **
Petitioner Elenilson Armando Coto Delgado (“Coto”) is a native and
citizen of El Salvador who most recently entered the United States in 2019.
Through the instant petition, Coto challenges a ruling of the Board of Immigration
Appeals (“BIA”) upholding an oral decision of an Immigration Judge (“IJ”), who
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. found that Coto’s Louisiana conviction for second-degree battery constitutes a
particularly serious crime barring withholding of removal. Coto also challenges
the BIA’s conclusion that he waived review of his CAT claim. We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
I. Administrative Exhaustion
“This Court may review a final order of removal only if ‘the alien has
exhausted all administrative remedies available to the alien as of right.’” Sola v.
Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (quoting 8 U.S.C. § 1252(d)(1)).
“Exhaustion requires a non-constitutional legal claim to the court on appeal to
have first been raised in the administrative proceedings below, and to have been
sufficient to put the BIA on notice of what was being challenged.” Umana-
Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (quoting Bare v. Barr, 975
F.3d 952, 960 (9th Cir. 2020)).1 This requirement is not applied “in a formalistic
manner.” Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir. 2018) (quoting
Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011)). While “[a] petitioner must
do more than make a ‘general challenge to the IJ’s decision,’” they “may raise a
1 The Supreme Court recently held that the 8 U.S.C. § 1252(d)(1) exhaustion requirement “is a non-jurisdictional rule ‘merely prescrib[ing] the method by which the jurisdiction granted the courts by Congress is to be exercised.’” Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1114 (2023) (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004)). The exhaustion requirement is therefore “subject to waiver and forfeiture.” Id. at 1116. However, because the government argues that Coto failed to exhaust administrative remedies as to his CAT claim and his challenge to the IJ’s consideration of his sentence, it has not waived or forfeited this requirement.
2 22-984 general argument in the administrative proceeding and then raise a more specific
legal issue on appeal.” Bare, 975 F.3d at 960 (quoting Zara v. Ashcroft, 383 F.3d
927, 930 (9th Cir. 2004)). “What matters is that the BIA was sufficiently on notice
so that it ‘had an opportunity to pass on this issue.’” Id. (quoting Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam)).
Coto failed to exhaust his argument that the nature of his sentence does not
suggest he was convicted of a particularly serious crime. On appeal, Coto argues
that his “low-term, concurrent, suspended sentence” is not probative of severity,
and that the BIA erred by finding “that ‘hard labor’ was proof of severity, when
in fact, that term simply means the offense is a felony.” But Coto did not raise
these arguments before the BIA in any manner. The only legal argument he
offered to challenge the IJ’s finding that he had been convicted of a particularly
serious crime was that the IJ erred by considering hearsay in a police report.
Nowhere did he suggest that the IJ considered improper factors when evaluating
“the type of sentence imposed.” Id. at 961 (citation omitted). It is evident that the
BIA did not have sufficient notice of this issue, as the BIA did not review the IJ’s
evaluation of Coto’s sentence anywhere in its opinion.2 Accordingly, this issue is
unexhausted.
2 Coto argues that the BIA exhausted this issue for him by stating that “the Immigration Judge correctly considered the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction.” Viewed in context, this sentence from the BIA opinion merely affirms that the IJ applied the correct legal standard. The only factor from In re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982), that the BIA analyzed with any substance or depth was
3 22-984 Coto did exhaust his claim under the Convention Against Torture (“CAT”).
Ordinarily, when the petitioner presents some issues in his Notice of Appeal but
fails to raise those issues in his brief to the BIA, he “will . . . be deemed to have
exhausted only those issues he raised and argued in his brief before the BIA.”
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam).
However, the government argued against Coto’s CAT claim on the merits in its
responsive briefings before the BIA, and the BIA addressed that issue in its
opinion. In the specific context of this case, these facts are sufficient to indicate
that the BIA had notice of the issue and an opportunity to address it on the merits.
Regardless, the BIA found that Coto forfeited this issue by failing to argue
it in his brief on administrative appeal. Cf. Cui v. Garland, 13 F.4th 991, 999 n.6
(9th Cir. 2021) (explaining in the context of federal appellate review that the
doctrine of forfeiture applies where an appellant fails to argue an issue in their
opening brief). While the BIA had sufficient notice of this issue for us to deem it
exhausted, the agency did not abuse its discretion by finding the issue forfeited
and declining to address it on the merits. See, e.g., In re R-A-M-, 25 I. & N. Dec.
657, 658 n.2 (B.I.A. 2012) (applying doctrine of waiver in administrative appeal);
see also Lopez v. Garland, 60 F.4th 1208, 1212 (9th Cir. 2023) (noting that the
the sole factor Coto raised on appeal—specifically, the IJ’s reliance on the police report to determine “the circumstances and underlying facts of the conviction.” Bare, 975 F.3d at 961 (citation omitted). Nowhere did the BIA review the IJ’s evaluation of Coto’s sentence.
4 22-984 BIA “has authority to prescribe its own rules of procedure” so long as it “acts
within the broad limits imposed by the Due Process Clause”).
II. Particularly Serious Crime
Coto contests the BIA’s finding that his second-degree battery conviction
constitutes a particularly serious crime barring withholding of removal. See 8
U.S.C. § 1231(b)(3)(B)(ii). To determine whether a given offense is particularly
serious, an IJ must consider three factors developed in In re Frentescu, 18 I. &
N. Dec. 244, 247 (B.I.A. 1982), including: “(1) ‘the nature of the conviction,’ (2)
‘the type of sentence imposed,’ and (3) ‘the circumstances and underlying facts
of the conviction.’” Bare, 975 F.3d at 961 (citation omitted). We have no
jurisdiction to “reweigh the evidence and reach our own determination about the
crime’s seriousness,” but we may review the BIA’s conclusion for abuse of
discretion. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015).
Under this deferential standard of review, we may reverse “only if the BIA acted
‘arbitrarily, irrationally, or contrary to law,’” Bare, 975 F.3d at 961 (quoting
Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012) (per curiam)), or if the BIA
did not “rely on the appropriate factors and proper evidence to reach its
conclusion,” id. (cleaned up) (quoting Avendano-Hernandez, 800 F.3d at 1077).
Coto’s only exhausted challenge is his argument that the BIA considered
improper evidence when evaluating “the circumstances and underlying facts of
the conviction.” See Frentescu, 18 I. & N. Dec. at 247. The BIA “may consider
‘all reliable information,’ including ‘information outside the confines of a record
5 22-984 of conviction,’” to evaluate this factor. Hernandez v. Garland, 52 F.4th 757, 766
(9th Cir. 2022) (quoting Anaya-Ortiz v. Holder, 594 F.3d 673, 677 (9th Cir.
2010)). However, “the evidence introduced into removal proceedings remains
subject to other statutory and constitutional limitations,” such as the due process
requirement that the government “make a good faith effort to afford the alien a
reasonable opportunity to confront and to cross-examine the witness against
him.” Alcaraz-Enriquez v. Garland, 19 F.4th 1224, 1231 (9th Cir. 2021) (citation
omitted). An immigrant seeking a new hearing based on a violation of this
requirement must show prejudice, “which means that the outcome of the
proceeding may have been affected by the alleged violation.” Id. at 1231–32
(quoting Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009)).
Coto argues that the BIA and the IJ improperly relied on hearsay statements
presented in a police report without affording him a reasonable opportunity to
cross-examine the declarants. Regardless of whether the BIA’s consideration of
the police report was proper, Coto cannot show prejudice. The BIA and the IJ
found that Coto’s offense constitutes a particularly serious crime regardless of
whether the police report or Coto’s testimony is accurate, as either narrative of
events features the use of a dangerous weapon against an unarmed victim. Coto
argues that he testified he was acting in self-defense, and that his actions cannot
be construed as “attacking the victim,” but these arguments ask this Court to
“reweigh the evidence” and are nonreviewable. See Avendano-Hernandez, 800
F.3d at 1077. We therefore conclude that the BIA did not abuse its discretion by
6 22-984 affirming the IJ’s particularly serious crime determination.
PETITION DENIED.
7 22-984