Nery Martinez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 1, 2023
• Docket: 20-70199
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NERY EDGARDO MARTINEZ, No. 20-70199

Petitioner, Agency No. A094-451-235

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted July 10, 2023 Pasadena, California

Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO,** District Judge.

Nery Edgardo Martinez, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal

from a decision by an Immigration Judge (IJ). The IJ found Martinez to be

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. removable as charged, and denied his requests for asylum, withholding of removal,

and cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we

deny the petition.

1. The BIA did not err in upholding the IJ’s competency determination.

The two immigration judges that observed Martinez correctly followed Matter of

M-A-M-, 25 I. & N. Dec. 474 (B.I.A. 2011). And substantial evidence supports the

IJs’ determination that Martinez was competent. See Plancarte Sauceda v.

Garland, 23 F.4th 824, 831 (9th Cir. 2022). As noted by the IJs, Martinez—who

proceeded pro se through years of immigration court proceedings—gathered

evidence, made cogent arguments, followed the IJs’ instructions, and was even

effective in obtaining some post-conviction relief for himself in the state courts.

2. Martinez contends that the agency erred in concluding that all three of

his convictions were for crimes involving moral turpitude (CIMTs) when only one

of his convictions is for a CIMT and it falls within the petty offense exception. But

Martinez did not present these arguments to the BIA, and a “failure to raise an

issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect

to that question.” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (cleaned up),

abrogated in part by Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1114 (2023).

The BIA did not independently address the CIMT issue on the merits; it merely

noted that Martinez was not disputing he had been convicted of three crimes

2 involving moral turpitude. Consequently, we decline to consider Martinez’s non-

exhausted arguments about whether his convictions constitute CIMTs. See Santos-

Zacaria, 143 S. Ct. at 1114 (holding that section 1252(d)(1) is a non-jurisdictional

claims-processing rule “prescribing the method by which the jurisdiction granted

the courts by Congress is to be exercised” (cleaned up)).

3. Similarly, Martinez did not exhaust his argument that the IJs violated

his due process rights by depriving him of the opportunity to litigate whether his

convictions are for CIMTs. This argument is barred by the claims-processing rule

in 28 U.S.C. § 1252(d)(1). See id. It is without merit in any event. Martinez has

not shown, and the transcript refutes any argument, that “the proceeding was so

fundamentally unfair” that he was “prevented from reasonably presenting his

case.” Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000) (internal citation

omitted).

4. The BIA correctly found that Martinez failed to challenge the IJ’s

denial of his claims for relief under the Convention Against Torture (CAT).

Moreover, the agency’s denial of CAT relief was not erroneous. The evidence in

the record does not compel the conclusion that Martinez was more likely than not

to be tortured at the instigation of, or with the consent or acquiescence of, the

Salvadoran government were he to return there. See Arteaga v. Mukasey, 511 F.3d

940, 948–49 (9th Cir. 2007).

3 PETITION DENIED.