NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS GUILLERMO SOSA-GOMEZ, No. 21-70514 Petitioner, Agency No. A206-457-957 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 8, 2022** Phoenix, Arizona Before: O’SCANNLAIN and GRABER, Circuit Judges, and FITZWATER,*** District Judge. Concurrence by Judge GRABER Guillermo Sosa-Gomez petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the immigration judge (“IJ”)’s decision * 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, Senior United States District Judge for the Northern District of Texas, sitting by designation. denying Sosa-Gomez’s application for asylum and related relief. As the facts are known to the parties, we repeat them only as necessary to explain our decision. I Sosa-Gomez waived his due process argument by failing to raise it before the BIA. “As a general rule, if a petitioner fails to raise an issue before an administrative tribunal, it cannot be raised on appeal from that tribunal.” Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (quoting Reid v. Engen, 765 F.2d 1457, 1460 (9th Cir. 1985)). Because Sosa-Gomez failed to exhaust his due process argument, we lack jurisdiction to consider it. See id. (citing 8 U.S.C. § 1252(d)(1)). Sosa-Gomez tries to reframe the argument as “not one of procedural due process but of substantive due process,” because, he argues, “substantive due process claims that the agency has no power to adjudicate need not be raised before the [BIA].” We disagree with Sosa-Gomez’s reframing. Sosa-Gomez argues that the IJ was biased and failed to provide him with a fair hearing—a quintessentially procedural argument. Further, Sosa-Gomez does not and cannot seriously contend that the BIA “has no power to adjudicate” issues concerning procedure in the lower immigration courts. Accordingly, we must dismiss the petition for review to the extent it relies on Sosa-Gomez’s unexhausted due process argument. 2 II Substantial evidence supports the IJ’s (and BIA’s) adverse credibility determination regarding Sosa-Gomez. Preliminarily, although Sosa-Gomez also failed to exhaust his adverse- credibility-determination challenge, we have elsewhere explained that “[w]hen the BIA has ignored a procedural defect and elected to consider an issue on its substantive merits, we cannot then decline to consider the issue based upon this procedural defect.” Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc). Sosa-Gomez did not identify any specific factual errors to advance this argument in his brief before the BIA, but he did identify it in his notice of appeal to the agency, and the BIA then thoroughly reviewed the issue. We will therefore consider the issue irrespective of the procedural defect. See id. On the merits, Sosa-Gomez fails …
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