Ramos-Martinez v. Garland ( 2021 )

Case: 20-60680 Document: 00515941466 Page: 1 Date Filed: 07/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 16, 2021
No. 20-60680
Summary Calendar Lyle W. Cayce
Clerk
Joaquin Ernesto Ramos-Martinez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 855 806
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Joaquin Ernesto Ramos-Martinez, a native and citizen of El Salvador,
petitions for review of the decision of the Board of Immigration Appeals
(BIA) dismissing his appeal of an Immigration Judge’s (IJ) denial of his
application for withholding of removal. He argues that the BIA erred in
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60680 Document: 00515941466 Page: 2 Date Filed: 07/16/2021
No. 20-60680
affirming the IJ’s adverse credibility finding and that the BIA and IJ violated
his due process rights.
This court reviews the BIA’s decision and the IJ’s ruling, to the extent
it affects the BIA’s decision. Wang v. Holder, 569 F.3d 531, 536 (5th Cir.
2009). We review factual findings for substantial evidence and legal
questions de novo. Iruegas-Valdez v. Yates, 846 F.3d 806, 810 (5th Cir. 2017).
Under substantial evidence review, reversal is improper unless this court
decides “not only that the evidence supports a contrary conclusion, but also
that the evidence compels it.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006) (quotation marks and citation omitted).
Substantial evidence supports the adverse credibility determination
because Ramos-Martinez’s testimony at his merits hearing conflicted with
both his earlier testimony at his credible fear interview and his daughter’s
statement regarding whether he was home when two men came to his house
to threaten him. Avelar-Oliva v. Barr, 954 F.3d 757, 767-68 (5th Cir. 2020).
Contrary to Ramos-Martinez’s assertion, the record does not compel a
conclusion that the IJ and BIA should have given less weight to his credible
fear interview since he was being detained at the time. See Suate-Orellana v.
Barr, 979 F.3d 1056, 1060-61 (5th Cir. 2020).
As to Ramos-Martinez’s argument that he was deprived of his due
process right to a fair hearing, he did not exhaust this claim before the BIA.
A due process claim is not subject to exhaustion unless it implicates a
procedural error correctable by the BIA. See Roy v. Ashcroft, 389 F.3d 132, 137
(5th Cir. 2004). To the extent Ramos-Martinez alleges an unexhausted
procedural error “couched in terms of due process,” we do not have
jurisdiction to consider it. Id. To the extent he attempts to assert a true due
process claim that is not subject to exhaustion, he has abandoned his claim by
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No. 20-60680
failing to meaningfully brief it. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th
Cir. 2003).
Accordingly, Ramos-Martinez’s petition for review is DISMISSED
in part for lack of jurisdiction and DENIED in part.
3