Sebastian Domingo-Montejo v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2018
• Docket: 16-73852
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SEBASTIAN DOMINGO-MONTEJO, No. 16-73852

Petitioner, Agency No. A205-529-916

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Sebastian Domingo-Montejo, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) removal order. Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review de novo constitutional claims and questions of law. Mohammed

* 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). v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in

part the petition for review.

The agency did not violate Domingo-Montejo’s statutory or due process

right to counsel where he had more than 18 months to find representation, he

appeared at his final removal hearing without counsel, no counsel had entered a

notice of appearance on his behalf, and the IJ took reasonable steps to contact the

attorney Domingo-Montejo claimed to have hired. See Biwot v. Gonzales, 403 F.3d

1094, 1099-1100 (9th Cir. 2005) (listing factors to be considered when deciding

what constitutes a reasonable time to obtain counsel); see also Padilla-Martinez v.

Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a

petitioner must demonstrate both a violation of rights and prejudice.”).

The record does not support Domingo-Montejo’s contention that his

testimony before the IJ on November 26, 2014, was coerced, and the agency did

not err by relying on it. Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012)

(“[T]he sole test for admission of evidence is whether the evidence is probative and

its admission is fundamentally fair.” (citation omitted)).

Because the agency relied on independent evidence to find Domingo-

Montejo removable, we do not reach Domingo-Montejo’s contention regarding the

agency’s denial of the motion to suppress the Form I-213 dated November 28,

2012. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and

2 16-73852 agencies are not required to reach non-dispositive issues).

We lack jurisdiction to review Domingo-Montejo’s unexhausted contention

that the agency violated his Miranda rights. See Tijani v. Holder, 628 F.3d 1071,

1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not presented in

an alien’s administrative proceedings before the BIA.”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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