Pacheco v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2025
• Docket: 24-5108
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE HERMINI PACHECO, No. 24-5108 Agency No. Petitioner, A034-283-175 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted September 19, 2025 Pasadena, California

Before: CLIFTON, BYBEE, and LEE, Circuit Judges.

Jose Hermini Pacheco, a native and citizen of Portugal, seeks review of the

Board of Immigration Appeals’ (BIA) dismissal of his appeal of the Immigration

Judge’s (IJ) denial of his application for deferral of removal under the Convention

Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the

petition for review.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Pacheco has been deaf since childhood. At thirteen, he immigrated to the

United States with his family as a lawful permanent resident. Since living in the

United States, Pacheco has been convicted of rape three times and has been

diagnosed with schizophrenia. Pacheco fears that if he is removed to Portugal, he

will be tortured by or with the acquiescence of Portuguese public officials “because

he does not fluently speak Portuguese Sign Language” and “he will decompensate

without access to a support system or structured environment, and will become

incarcerated in a Portuguese prison.”

When, as here, “the BIA adopts the IJ’s decision while adding some of its own

reasoning,” this court will “review both decisions.” Lopez-Cardona v. Holder, 662

F.3d 1110, 1111 (9th Cir. 2011). We review factual determinations for “substantial

evidence” and legal questions “de novo.” Cordoba v. Holder, 726 F.3d 1106, 1113

(9th Cir. 2013). We also “review de novo claims of equal protection and due process

violations in removal proceedings.” Cruz Rendon v. Holder, 603 F.3d 1104, 1109

(9th Cir. 2010). Finally, “[w]e review for abuse of discretion whether the BIA

clearly depart[ed] from its own standards.” Mejia v. Sessions, 868 F.3d 1118, 1121

(9th Cir. 2017).

1. Rehabilitation Act claim. Pacheco is not entitled to a new hearing under

Section 504 of the Rehabilitation Act. 29 U.S.C. § 794(a). To prevail under Section

504, an individual must show that “(1) he is an individual with a disability; (2) he is

2 24-5108 otherwise qualified to receive the benefit; (3) he was denied the benefits of the

program solely by reason of his disability; and (4) the program receives federal

financial assistance.” Updike v. Multnomah Cnty., 870 F.3d 939, 949 (9th Cir. 2017)

(internal citation omitted). Here, Pacheco argues that by providing an American

Sign Language (ASL) interpreter at his merits hearing—but not a Certified Deaf

Interpreter (CDI)—the IJ violated the Act.

Pacheco’s argument fails because he, through counsel, agreed to proceed

without a CDI interpreter. Pacheco’s counsel stated that Pacheco “understood” there

was no CDI interpreter that day, that Pacheco would proceed without a CDI

interpreter, and that Pacheco and the ASL interpreter would alert Pacheco’s counsel

and the IJ “if there was any difficulty in communication.” Pacheco’s argument that

proceeding in this manner impermissibly shifted the burden onto Pacheco also fails.

Although the IJ’s failure to have a CDI interpreter available at Pacheco’s scheduled

hearing is concerning, Pacheco could have requested a continuance upon learning

that there was no CDI interpreter. There is no evidence that Pacheco made such a

request or that it would have been denied. In sum, Pacheco made an informed

decision with advice from counsel to proceed without a CDI interpreter and he

cannot now obtain relief based on something he did not complain about at the

appropriate time.

3 24-5108 2. Due process claim. “Due process requires that an applicant be given

competent translation services.” He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003).

When a petitioner argues that he was denied due process because of incompetent

translation, the petitioner must show that he was “prejudiced” by the incompetent

translation. Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

Pacheco cannot show prejudice. The agency concluded that Pacheco failed to

demonstrate the requisite state action needed for a claim under CAT. See Dhital v.

Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (noting that a petitioner must show it

is more likely than not that he will be tortured by or with the acquiescence of a public

official). Because Pacheco has not lived in Portugal for over fifty years and has no

close family or friends there, he has no personal experience to make his CAT case.

Pacheco thus relied on country condition reports to show state action. But the agency

found that Portugal has anti-discrimination laws protecting people with disabilities.

Pacheco fails to show how a remand for a new hearing with both an ASL and CDI

interpreter could plausibly make any difference in the outcome of his application for

CAT protection. See Singh v. Ashcroft, 367 F.3d 1139, 1144 (9th Cir. 2004) (noting

the standard is whether “a better translation would have made a difference in the

outcome of the hearing” (internal citation omitted)).

3. Matter of M-A-M-. Pacheco failed to exhaust his argument that the IJ

abused its discretion by departing from the requirements set forth in Matter of M-A-

4 24-5108 M-, 25 I. & N. Dec. 474 (BIA 2011). Administrative exhaustion is a mandatory

claim-processing rule. See Santos-Zacaria v. Garland, 598 U.S. 411, 417, 421

(2023). Pacheco attempts to overcome his failure to exhaust by noting there are

“deep intersections between [Matter of M-A-M-] and due process” which “put the

BIA on notice” that the interpretation issues raised in his brief “could constitute”

violations under Matter of M-A-M-. See Matter of M-A-M-, 25 I. & N. Dec. at 484

(holding that if the record contains “indicia of incompetency,” the IJ shall determine

the alien’s competency to participate in removal proceedings, provide appropriate

safeguards if required, and articulate the rational for his or her decision).

But neither Pacheco’s brief to the BIA nor the BIA decision address Pacheco’s

argument on appeal that the IJ failed to comply with the “rigorous procedural

requirements” under Matter of M-A-M-. Even if Pacheco had exhausted the issue,

we see nothing in the record that would have required the IJ to reject or further

investigate Pacheco’s counseled decision to proceed without a CDI interpreter.

4. BIA’s state action ruling. Finally, Pacheco argues that the BIA erred

because it did not address both theories of state action—direct action by state actors

and acquiescence—when evaluating his claim under CAT. See Dhital, 532 F.3d at

1051. In support of this argument, Pacheco points to a single footnote in the BIA’s

decision and advocates for an interpretation of the footnote that directly conflicts

with the rest of the BIA’s decision. Indeed, elsewhere in its decision the BIA

5 24-5108 explicitly addresses both direct action by state actors and acquiescence. See Fed.

Trade Comm'n v. Microsoft Corp., 136 F.4th 954, 966 (9th Cir. 2025) (noting we

review decisions “as a whole, and in context” and must not “flyspeck” “isolated

phrases”). There is also no merit to Pacheco’s argument that the BIA engaged in

improper fact-finding.

PETITION DENIED.

6 24-5108