Escalona Hernandez v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FELIPE ESCALONA HERNANDEZ, No. 23-1260 Agency No. Petitioner, A205-323-878 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of an Immigration Judge Submitted April 22, 2024** Before: CALLAHAN, LEE, and FORREST, Circuit Judges. Felipe Escalona Hernandez, a native and citizen of Mexico, petitions pro se for review of an immigration judge’s (“IJ”) order affirming an asylum officer’s negative reasonable fear determination. We have jurisdiction under 8 U.S.C. § 1252. We review an IJ’s negative reasonable fear determination for substantial * 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). evidence. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). We review de novo claims of due process violations in immigration proceedings. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 2003). We deny the petition for review. Substantial evidence supports the IJ’s determination that Escalona Hernandez failed to show a reasonable possibility that the harm he suffered or fears would be on account of a protected ground. See Bartolome v. Sessions, 904 F.3d 803, 814 (9th Cir. 2018) (no basis for withholding of removal where petitioner did not show a nexus to a protected ground). Escalona Hernandez’s contentions regarding a newly-proposed particular social group are not properly before the court because he failed to raise them before the IJ. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing rule). Substantial evidence also supports the agency’s determination that Escalona Hernandez failed to show a reasonable possibility of torture by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). Escalona Hernandez’s contention regarding ineffective assistance of counsel is not properly before the court because he failed to raise it before the agency. See 2 23-1260 8 U.S.C. § 1252(d)(1); see also Santos-Zacaria, 598 U.S. at 417-19. Escalona Hernandez’s claims of due process violations by the IJ fail because he has not shown error. See 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 renewed motions for a stay of removal are denied. PETITION FOR REVIEW DENIED. 3 23-1260