Rupailla Castro v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 9, 2025
• Docket: 24-1271
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YERSI BENITO RUPAILLA CASTRO, No. 24-1271 Agency No. A241-880-825 Petitioner,

v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted August 21, 2025 San Francisco, California

Before: CHRISTEN, LEE, and BRESS, Circuit Judges.

Yersi Benito Rupailla Castro, a citizen of Peru, petitions for review of the

Board of Immigration Appeals’ (BIA) order affirming the denial of Rupailla

Castro’s application for asylum, withholding of removal, and deferral of removal

under the Convention Against Torture (CAT). We have jurisdiction under 8

U.S.C. § 1252(a)(1). We deny the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We confine our review to the BIA’s decision, except to the extent the BIA

expressly adopted the Immigration Judge’s (IJ) opinion. Guerra v. Barr, 974 F.3d

909, 911 (9th Cir. 2020). We review questions of law de novo and factual

determinations for substantial evidence. Ruiz-Colmenares v. Garland, 25 F.4th

742, 748 (9th Cir. 2022).

Even reading Rupailla Castro’s notice of appeal to the BIA broadly, we

conclude he did not appeal the IJ’s finding that he had committed a serious

nonpolitical crime prior to entering the United States that rendered him ineligible

for asylum and withholding of removal. He failed to exhaust this claim, and so we

do not consider it further. See Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020).

Assuming, without deciding, that Rupailla Castro exhausted his other

claims, we find them unavailing. Rupailla Castro knowingly and voluntarily

waived his right to counsel. At Rupailla Castro’s initial hearing on November 21,

2022, the IJ informed Rupailla Castro of his right to obtain counsel and provided

him with a list of free legal services. The attorney that had appeared in Rupailla

Castro’s bond hearing did not appear at his first two removal hearings, so the IJ

granted Rupailla Castro two continuances to secure an attorney. When Rupailla

Castro appeared for the third time without counsel on January 19, 2023, the IJ

asked whether he would like to represent himself and Rupailla Castro responded,

“[t]hat’s right.” The IJ stated that he found Rupailla Castro had waived his right to

2 24-1271 counsel in the removal proceeding and asked whether Rupailla Castro

understood—to which Rupailla Castro responded, “[y]es.” See Biwot v. Gonzales,

403 F.3d 1094, 1100 (9th Cir. 2005). We agree with the BIA’s conclusion that

Rupailla Castro waived his right to counsel.

While the IJ did not provide Rupailla Castro with instructions in Spanish on

procedures for introducing witnesses via the court’s secure weblink at his merits

hearing, he did not show that any error was prejudicial. See Perez-Lastor v. I.N.S.,

208 F.3d 773, 778–80 (9th Cir. 2000) (applying due process analysis to translation

issues in immigration process). The IJ made efforts to accommodate Rupailla

Castro’s attempt to introduce his witness testimony by calling the witness on her

cell phone and asking her questions, and by trying to call her back when the call

ended abruptly. The IJ eventually determined that he would give no weight to the

witness’s testimony because she was uncooperative and because government

counsel did not have the opportunity to cross-examine her. On this record, we do

not conclude that “the IJ’s ‘conduct potentially affected the outcome of the

proceedings,’” Colmenar v. I.N.S., 210 F.3d 967, 972 (9th Cir. 2000) (quoting

Campos–Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999)), or “prevented the

introduction of significant testimony,” Oshodi v. Holder, 729 F.3d 883, 890 (9th

Cir. 2013) (quoting Lopez–Umanzor v. Gonzales, 405 F.3d 1049, 1056 (9th Cir.

2005)), so as to constitute a due process violation.

3 24-1271 Substantial evidence supports the IJ’s conclusion and BIA’s affirmance that

Rupailla Castro is ineligible for deferral of removal under the CAT. 8 C.F.R.

§ 1208.17(a). Rupailla Castro failed to substantiate his claims that his alleged

attacks in prison or following release were carried out at the behest of or with the

acquiescence of the Peruvian government. Rupailla Castro’s testimony did not

demonstrate, and the written evidence he submitted did not corroborate, his claims

that the post-release attackers acted at the instigation or acquiescence of Peruvian

officials. Nor does the record demonstrate that Rupailla Castro is likely to be

tortured in Peru based on his past participation in political protests or his sexual

orientation.

The motion for a stay of removal is denied. The temporary stay of removal

remains in place until the mandate issues.

PETITION DENIED.

4 24-1271