Jario Chajon v. Jefferson Sessions, III


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 5 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS JARIO CHAJON, No. 14-72341 Petitioner, Agency No. A 087-680-912 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 13, 2018 San Francisco, California Before: BEA and MURGUIA, Circuit Judges, and SOTO**, District Judge. Petitioner Jario Chajon (“Chajon”), a native and citizen of Guatemala, appeals the denial by the Board of Immigration Appeals (“BIA”) of his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). Reviewing both determinations “under the deferential substantial evidence * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Alan Soto, District Judge for the U.S. District Court for the District of Arizona, sitting by designation. 1 standard,” see Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014), we deny his petitions for withholding of removal and CAT relief. However, in light of the Supreme Court’s recent decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), we remand for the BIA to consider whether Chajon is eligible for cancellation of removal under 8 U.S.C. § 1229b. Because the parties are familiar with the facts and procedural history of this case, we need not recount them here. 1. Chajon challenges the BIA’s adverse credibility determination solely on the ground that his counsel rendered ineffective assistance. However, we generally “require an alien who argues ineffective assistance of counsel to exhaust his administrative remedies by first presenting the issue to the BIA.” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000). Because a claim for ineffective assistance, “by its nature, can rarely be presented to the BIA on direct appeal,” id., “[a] motion to reopen is the procedural vehicle through which a petitioner may bring, usually for the first time, an ineffective assistance of counsel claim before the BIA,” id. at 1123. Therefore, Chajon should have raised his ineffective assistance of counsel claim in a motion to reopen before the BIA. He did not. His failure to do so precludes this court from considering that claim at this stage. See id. 2. Even without the adverse credibility determination, substantial evidence supports the BIA’s conclusion that Chajon failed to demonstrate entitlement to withholding of removal. Unless a statutory exception applies, the Attorney General may not deport an alien to a country where his “life or freedom would be threatened 2 . . . because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of proving eligibility for such relief. Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir. 2005). Proof of past persecution on account of a protected ground triggers a rebuttable presumption that the alien’s life or freedom would be threatened ...

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