Iraheta-Patriz v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2023
• Docket: 22-296
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 16 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELENA MAGALI IRAHETA-PATRIZ, No. 22-296

Petitioner, Agency No. A206-791-297 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted June 12, 2023** Pasadena, California

Before: BYBEE and CHRISTEN, Circuit Judges, and FITZWATER,*** District

Judge.

* 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 Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Petitioner Elena Magali Iraheta-Patriz petitions for review of a Board of

Immigration Appeals (BIA) order denying her application for asylum, withholding

of removal, and protection under the Convention Against Torture. We have

jurisdiction under 8 U.S.C. § 1252 and review the BIA’s decision for substantial

evidence. Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). We dismiss the

petition.

1. Iraheta-Patriz argues that the BIA violated her due process rights by

issuing its decision without providing her with a briefing schedule. Unaware of

any filing deadlines, Iraheta-Patriz never briefed the merits of her appeal to the

BIA. As a result, the BIA determined that Iraheta-Patriz did not “meaningfully

challenge” the decision of the Immigration Judge (IJ) and adopted and affirmed the

IJ’s decision.

Iraheta-Patriz’s argument is ill-suited to a petition of our court. Although

exhaustion of “legal issues based on events that occur after briefing to the BIA has

been completed” through a motion to reopen is not required by statute, Alcaraz v.

INS, 384 F.3d 1150, 1158 (9th Cir. 2004), “we may prudentially require petitioners

to exhaust administrative remedies in order to develop a proper record, prevent

deliberate bypass of the administrative scheme, or allow the agency to correct its

own mistake,” Padilla-Padilla v. Gonzales, 463 F.3d 972, 978 (9th Cir. 2006).

2 Here, the BIA has not had the opportunity to assess whether Iraheta-Patriz’s

nonreceipt of the briefing schedule is adequate grounds to reopen her application

and allow her to brief her claims. Moreover, the record before us is silent as to the

facts underlying Iraheta-Patriz’s claim; we do not know whether she was ever sent

a briefing schedule. Even Iraheta-Patriz recognizes that her appeal before our

court “is taking place out of order”—she has filed a motion to reopen that is

pending before the BIA and capable of providing the relief she seeks from our

court.

2. Additionally, Iraheta-Patriz contends that the IJ was not a neutral fact-

finder. If the BIA allows Iraheta-Patriz to reopen, she can raise this argument to

the BIA in the first instance.

PETITION DISMISSED.