Sergio Jimenez-Ramirez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO JIMENEZ-RAMIREZ, No. 19-70578
Petitioner, Agency No. A092-949-731
v.
MEMORANDUM*
MERRICK GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2021**
Las Vegas, Nevada
Before: NGUYEN and BENNETT, Circuit Judges, and HARPOOL,*** District
Judge.
Sergio Jimenez-Ramirez, a native and citizen of Mexico, challenges the
Board of Immigration Appeals’ (BIA) dismissal of his appeal for violations of his
*
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).
***
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
due process rights. We have jurisdiction under 8 U.S.C. § 1252, and we deny
Jimenez-Ramirez’s petition for review.
1. Jimenez-Ramirez first claims that the Immigration Judges (IJs)
violated due process by failing to advise him of the right to apply for asylum.
Reviewing de novo, Liu v. Holder, 640 F.3d 918, 930 (9th Cir. 2011), we find that
the IJs had no duty to advise Jimenez-Ramirez of this right because Jimenez-
Ramirez did not express a fear of harm or present any facts indicating he could be
persecuted in Mexico during removal proceedings. See United States v. Lopez-
Velasquez, 629 F.3d 894, 900 (9th Cir. 2010) (“[T]he IJ is not required to advise [a
noncitizen] of possible relief when there is no factual basis for relief in the
record.”). Any assertion of fear during bond proceedings did not trigger this duty
because bond and removal proceedings are distinct, and IJs may not consider any
part of bond proceeding in removal proceedings. See 8 C.F.R. § 1003.19(d).
2. Jimenez-Ramirez also contends that the IJs violated due process by
failing to ask him if he feared return to Mexico, but Jimenez-Ramirez failed to
exhaust this claim. This due process claim is not exempt from the exhaustion
requirement because the BIA could have remedied any due process violation by
remanding for asylum advisals and an opportunity to apply for asylum. See Tall v.
Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008). Here, Jimenez-Ramirez failed to
put the BIA on notice of this claim because he did not include facts or argument
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supporting it in his briefing before the BIA. See id. (“Although [the noncitizen]
raised his due process rights in his brief to the BIA, he . . . did not give the BIA an
opportunity to consider and remedy the particular procedural errors he raises
now.”).
PETITION DENIED.
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