Daniel Victor Nerio Rodriguez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL VICTOR NERIO RODRIGUEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-70750
Agency No. A092-188-053
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Daniel Victor Nerio Rodriguez, a native and citizen of El Salvador, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) removal order. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s
FILED
APR 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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factual findings, and review de novo questions of law. Mohammed v. Gonzales,
400 F. 3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the
petition for review.
We grant Nerio Rodriguez’s motion for leave to file a supplemental brief.
Nerio Rodriguez does not contest that he has three convictions under
California Health and Safety Code § 11550(a) for being under the influence of
methamphetamine and amphetamines, and the BIA correctly concluded that Nerio
Rodriguez is removable due to his controlled substance convictions. See 8 U.S.C.
§ 1227(a)(2)(B)(i); 21 U.S.C. § 812; see also Coronado v. Holder, 759 F.3d 977,
983-85 (9th Cir. 2014).
The BIA did not err in denying Nerio Rodriguez’s due process claim, where
he received ample time to obtain an attorney, had a full and fair hearing, and has
not shown prejudice from the alleged due process violation. See Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due
process claim).
Substantial evidence supports the agency’s denial of asylum where Nerio
Rodriguez did not show prior harm rising to the level of persecution, see Wakkary
v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009), or fear of future persecution on
account of a protected ground, see Parussimova v. Mukasey, 555 F.3d 734, 739-40
14-70750 2

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(9th Cir. 2009). Because Nerio Rodriguez does not meet the standard for asylum,
substantial evidence supports the agency’s determination that he also does not meet
the stricter standard for withholding of removal. See Zehatye v. Gonzales, 453
F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence also supports the agency’s denial of relief under the
Convention Against Torture, where Nerio Rodriguez has not established that it is
more likely than not he would be tortured by or with the consent or acquiescence
of the government of El Salvador. See Wakkary, 558 F.3d at 1067-68.
We lack jurisdiction to consider Nerio Rodriguez’s contentions that the IJ
should have advised him of the availability of other forms of discretionary relief,
that the IJ should have granted voluntary departure, and that the BIA should reopen
his case due to changed country conditions, because these claims were not raised
before the BIA and are therefore unexhausted. See Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not
presented in an alien’s administrative proceedings before the BIA).
The government’s motion to vacate the stay of removal pending review is
denied as moot.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
14-70750 3

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