Benito Segundo-Gonzalez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENITO SEGUNDO-GONZALEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72068
Agency No. A095-784-551
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2022**
San Francisco, California
Before: LINN,*** RAWLINSON, and HURWITZ, Circuit Judges.
* 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 Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
FILED
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Benito Segundo-Gonzales, a native of Mexico, petitions for review of the
decision of the Board of Immigration Appeals (“Board”) denying withholding of
removal. Segundo-Gonzales challenges the jurisdiction of the immigration court to
commence removal proceedings by using a notice to appear that lacked certain
information under 8 U.S.C. § 1229(a)(1)(G)(i). He also argues that he was deprived
of due process by the immigration judge’s failure to adequately develop the record
and to notify him of the availability of pre-conclusion voluntary departure. He
further contends that the Board abused its discretion by failing to consider his
arguments for withholding of removal on a case-by-case basis. We dismiss the
petition in part and deny it in part.
1. We lack authority to review mere procedural errors in the notice to appear
that have not been administratively exhausted. See Rashtabadi v. I.N.S., 23 F.3d
1562, 1567 (9th Cir. 1994) (“Failure to raise an issue in an appeal to the BIA
constitutes a failure to exhaust remedies with respect to that question and deprives
this court of jurisdiction to hear the matter.” (quoting Vargas v. U.S. Dep’t of Immigr.
& Naturalization, 831 F.2d 906, 907–08 (9th Cir. 1987))). The deficiency in the
notice to appear here is “mere procedural error” that may be cured by the agency and
is not a due process challenge, as Segundo-Gonzalez does not claim he was not given
actual notice of the time and place of his hearing or that he had insufficient time to

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prepare. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).1
2. Segundo-Gonzales has not shown a due process violation from any failure
to inform him of the availability of pre-hearing voluntary departure because he was
awarded voluntary departure after the hearing.
3. Segundo-Gonzales’s claim about the purported failure to adequately
develop the record concerning the nature of his particular social group fails because
he cannot show that “the proceeding may have been affected by the alleged
violation.” See Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009) (quotation
omitted). The immigration judge acknowledged that familial relationship could be
the basis of a cognizable social group but denied withholding because “Respondent
conceded that there was nothing particular about this membership in his family that
would make him specifically a target.” No development of the record about the
characteristics of the social group itself could have changed this concession or the
finding of a lack of nexus.
4. The Board did not violate Segundo-Gonzales’s due process by upholding
the immigration judge’s decision with respect to the Convention Against Torture
(“CAT”). Segundo-Gonzales received all the procedural safeguards required,
1 In any event, the contention that the immigration court lacked jurisdiction is
foreclosed by our precedent. See Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th
Cir. 2019); Aguilar Fermin v. Barr, 958 F.3d 887, 893 (9th Cir. 2020).

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including: a hearing before the immigration judge, the immigration judge’s opinion
with explanation, an opportunity to appeal to the Board, and the Board’s decision.
See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir. 2003).
5. The Board and the immigration judge did not err in denying withholding
of removal. Segundo-Gonzales’s concession with respect to the lack of nexus
between membership in his family and the likelihood of future persecution is fatal
to his withholding claim. Moreover, he forfeited the argument for withholding based
on membership in the social group of repatriated Mexicans by not raising it to the
immigration court.
PETITION DISMISSED IN PART AND DENIED IN PART.

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