Iraheta-Patriz v. Garland ( 2023 )

FILED
NOT FOR PUBLICATION
JUN 16 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELENA MAGALI IRAHETA-PATRIZ, No. 22-296
Petitioner, Agency No.
A206-791-297
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2023**
Pasadena, California
Before: BYBEE and CHRISTEN, Circuit Judges, and FITZWATER,*** District
Judge.
*
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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
Petitioner Elena Magali Iraheta-Patriz petitions for review of a Board of
Immigration Appeals (BIA) order denying her application for asylum, withholding
of removal, and protection under the Convention Against Torture. We have
jurisdiction under 8 U.S.C. § 1252 and review the BIA’s decision for substantial
evidence. Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). We dismiss the
petition.
1. Iraheta-Patriz argues that the BIA violated her due process rights by
issuing its decision without providing her with a briefing schedule. Unaware of
any filing deadlines, Iraheta-Patriz never briefed the merits of her appeal to the
BIA. As a result, the BIA determined that Iraheta-Patriz did not “meaningfully
challenge” the decision of the Immigration Judge (IJ) and adopted and affirmed the
IJ’s decision.
Iraheta-Patriz’s argument is ill-suited to a petition of our court. Although
exhaustion of “legal issues based on events that occur after briefing to the BIA has
been completed” through a motion to reopen is not required by statute, Alcaraz v.
INS, 384 F.3d 1150, 1158 (9th Cir. 2004), “we may prudentially require petitioners
to exhaust administrative remedies in order to develop a proper record, prevent
deliberate bypass of the administrative scheme, or allow the agency to correct its
own mistake,” Padilla-Padilla v. Gonzales, 463 F.3d 972, 978 (9th Cir. 2006).
2
Here, the BIA has not had the opportunity to assess whether Iraheta-Patriz’s
nonreceipt of the briefing schedule is adequate grounds to reopen her application
and allow her to brief her claims. Moreover, the record before us is silent as to the
facts underlying Iraheta-Patriz’s claim; we do not know whether she was ever sent
a briefing schedule. Even Iraheta-Patriz recognizes that her appeal before our
court “is taking place out of order”—she has filed a motion to reopen that is
pending before the BIA and capable of providing the relief she seeks from our
court.
2. Additionally, Iraheta-Patriz contends that the IJ was not a neutral fact-
finder. If the BIA allows Iraheta-Patriz to reopen, she can raise this argument to
the BIA in the first instance.
PETITION DISMISSED.
3