DOMINGO MONTEJO v. SESSIONS III (2018)

MEMORANDUM **

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 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 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.