Pedro Durand v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO DURAND,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1747
Agency No.
A206-035-742
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 11, 2024
Pasadena, California
Before: TALLMAN, CALLAHAN, and BENNETT, Circuit Judges.
Petitioner Pedro Durand petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision upholding the Immigration Judge’s (“IJ”) rejection of
his motion to change venue and denial of his request for deferral of removal under
the Convention Against Torture (“CAT”). He also challenges his removal order.
We have jurisdiction under 8 U.S.C. § 1252. As to the first two issues, “[w]here,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 29 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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as here, the BIA agrees with the IJ’s reasoning, we review both decisions.”
Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). We review “the
[BIA’s] legal conclusions de novo and its factual findings for substantial
evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)
(en banc) (cleaned up). We deny the petition.
1. Although Durand filed a “Motion to Change Venue,” the motion
essentially requested that the IJ transfer him to a different detention center, though
it also mentioned convenience to Durand’s attorney and potential witnesses.1 As
both the IJ and BIA noted, immigration judges do not have the authority to order
the Department of Homeland Security to transfer detainees to a different facility.
And even if there were some ambiguities in the original motion to change venue,
there were little or none in the appeal brief to the BIA, which discussed only the
“conditions of confinement” at Durand’s detention facility, in the context of “due
process” violations. Given this, the BIA did not abuse its discretion in affirming
the IJ’s denial of Durand’s motion to change venue. See Baires v. I.N.S., 856 F.2d
89, 92 (9th Cir. 1988); see also Singh v. Holder, 349 F. App’x 216, 217 (9th Cir.
2009) (“We review for abuse of discretion the denial[] of . . . a motion to change
venue.”).
1 Durand’s attorney’s statements before the IJ and Durand’s appeal brief to the BIA
also support that he was requesting a transfer to a different detention facility.

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2. The agency’s determination that Durand was not entitled to relief on
his CAT claim is supported by substantial evidence. Durand never suffered past
torture, as he came to the United States when he was three months old and never
lived in Mexico. The agency correctly determined that Durand’s fear of torture
based on his sexual orientation, American identity, tattoos, and perceived wealth—
as well as the country conditions and articles that Durand submitted—was
insufficient to meet his burden of establishing a “particularized, ongoing risk of
future torture.” Tzompantzi-Salazar v. Garland, 32 F.4th 696, 707 (9th Cir. 2022)
(emphasis added). The IJ and BIA properly considered all evidence in the
aggregate and did not—as Durand suggests—base their decisions solely on
Durand’s lack of explanation for why he could not relocate to a safer location
within Mexico. Id. at 705 (“[I]n deciding whether a petitioner has satisfied his or
her burden, ‘the IJ must consider all relevant evidence, including but not limited to
the possibility of relocation within the country of removal.’” (quoting Maldonado
v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015))).
3. Because Durand did not challenge the IJ’s removability determination
before the IJ or BIA, he has failed to exhaust this issue. See 8 U.S.C. § 1252(d)(1);
Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (“Exhaustion requires a non-
constitutional legal claim to the court on appeal to have first been raised in the
administrative proceedings below, . . . and to have been sufficient to put the BIA

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on notice of what was being challenged.”). Durand argues that he was effectively
foreclosed from raising the issue of removability because he was unrepresented at
the time of the removability determination. But that is not a recognized exception
to exhaustion. See, e.g., Sun v. Ashcroft, 370 F.3d 932, 942-43 (9th Cir. 2004)
(stating that the futility exception applies only when there are “issues [that are] so
entirely foreclosed by prior BIA case law that no remedies are ‘available . . . as of
right’ with regard to them before IJs and the BIA.”). In any event, Durand was
represented before the IJ at his merits hearing, and his attorney could have raised
the removability issue at that hearing. Moreover, the IJ’s removability
determination was correct because Durand entered the United States without being
admitted. 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present in the United States
without being admitted or paroled, or who arrives in the United States at any time
or place other than as designated by the Attorney General, is inadmissible.”).
PETITION DENIED.

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