Hector Quinteros Zavala v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HECTOR RODOLFO QUINTEROS No. 15-71693 ZAVALA, AKA Hector R. Quinteros, Agency No. A094-307-391 Petitioner, 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 March 14, 2018 San Francisco, California Before: PAEZ and IKUTA, Circuit Judges, and VITALIANO,** District Judge. Hector Rodolfo Quinteros Zavala (“Quinteros”), a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for withholding of removal under 8 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. U.S.C. § 1231(b)(3)(A). We deny the petition in part and dismiss it in part. 1. The agency’s adverse credibility determination was supported by substantial evidence. The BIA properly concluded that the immigration judge (“IJ”) did not clearly err in making an adverse credibility determination on the basis of an inconsistency in Quinteros’s testimony and a material omission of fact from Quinteros’s initial statement in support of his application for withholding of removal. See 8 U.S.C. § 1158(b)(1)(B)(iii); id. § 1231(b)(3)(C). Although Quinteros offered plausible explanations for the inconsistency and factual omission, the IJ reasonably rejected those explanations. See Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011). Absent Quinteros’s credible testimony, the other evidence in the record was insufficient to carry his burden of proving he was eligible for relief. 2. The BIA did not err in rejecting Quinteros’s Fifth Amendment due process claim of ineffective assistance of counsel. First, Quinteros did not comply with the procedural requirements set out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). Second, even if we were to excuse non-compliance with the Lozada requirements, Quinteros has not established that his former counsel’s alleged conflict of interest in representing Quinteros’s brother in removal proceedings before the same IJ resulted in 2 prejudice.1 In addition, counsel’s failure to obtain certified translations, and lay a proper foundation, for certain documents did not prejudice Quinteros because, despite any foundational shortcomings, the IJ nonetheless considered those documents in his oral decision. 3. The IJ did not violate Quinteros’s due process rights by failing to recuse himself sua sponte. The record does not demonstrate that the IJ had a “personal . . . bias stemming from” his knowledge of Quinteros’s brother’s removal proceedings, over which the IJ also presided. Vargas-Hernandez v. Gonzales, 497 F.3d 919, 925 (9th Cir. 2007) (quoting Matter of Exame, 18 I. & N. Dec. 303, 306 (BIA 1982)). To the contrary, the IJ expressly stated that he did not know whether he could remember ...

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