Nelson Antonio Jimenez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON ANTONIO JIMENEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1379
Agency No.
A094-453-889
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 15, 2023**
Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.
Nelson Antonio Jimenez, a native and citizen of El Salvador, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to remand, and dismissing his appeal from an immigration judge’s (“IJ”)
decision denying his application for withholding of removal. We have jurisdiction
* 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).
FILED
AUG 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 8 U.S.C. § 1252. We review the denial of a motion to remand for abuse of
discretion. Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). We review for
substantial evidence the agency’s factual findings. Conde Quevedo v. Barr, 947
F.3d 1238, 1241 (9th Cir. 2020). We deny the petition for review.
The BIA did not abuse its discretion in denying Jimenez’s motion to remand
where he failed to establish prejudice from the alleged violation of 8 C.F.R.
§ 1240.10(c). See Kohli v. Gonzales, 473 F.3d 1061, 1066 (9th Cir. 2007)
(applicant must show that he was prejudiced by the agency’s violation of its own
regulation); see also Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014)
(“To prevail on a due-process claim, a petitioner must demonstrate both a violation
of rights and prejudice.”). Jimenez’s contention that there should be a presumption
of prejudice under these circumstances is not properly before the court because he
failed to raise it before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of
administrative remedies required); see also Santos-Zacaria v. Garland, 143 S. Ct.
1103, 1113-14 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing
rule).
The record does not support Jimenez’s contentions that the agency ignored
arguments, demonstrated bias, misstated the record, or otherwise erred in its
analysis. See Padilla-Martinez, 770 F.3d 825 at 830; see also Najmabadi v.

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Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency adequately considered
evidence and sufficiently announced its decision).
Substantial evidence supports the agency’s denial of withholding of removal
because Jimenez failed to show a clear probability of future persecution. See, e.g.,
Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (feared persecution “too
speculative” to support asylum claim). Thus, his withholding of removal claim
fails.
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.

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