NOT FOR PUBLICATION FILED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 Quinteros’s brother’s case, and that he was not “making . . .

any connections” or “prejudging anything.”

4. We lack jurisdiction to review Quinteros’s remaining claims. First,

Quinteros argues that the IJ violated his due process rights by failing to consider all

of the evidence in the record. Because the BIA could have corrected any such

1 We do not need to decide whether, in the context of a Fifth Amendment due process challenge, prejudice is presumed where an actual and concurrent conflict of interest exists. Cf. Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980) (Sixth Amendment context). We conclude that an “actual” conflict is not at issue here because Quinteros has not demonstrated that his former counsel’s alleged conflict of interest “adversely affect[ed] [his] performance.” Rowland v. Chappell, 876 F.3d 1174, 1191 (9th Cir. 2017) (quoting Mickens v. Taylor, 535 U.S. 162, 171 (2002)).

3 procedural error by remanding for the IJ to consider all of the evidence, Quinteros

was required to raise this claim before the BIA in the first instance. See Sola v.

Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam). By failing to do so,

Quinteros did not exhaust administrative remedies and thus we lack jurisdiction to

consider this claim. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674,

677 (9th Cir. 2004). Second, Quinteros also failed to exhaust administrative

remedies as to his claim for relief under the Convention Against Torture (“CAT”).

The BIA properly declined to consider that claim on the ground that Quinteros

expressly waived it before the IJ. Finally, we lack jurisdiction to review the IJ’s

discretionary denial of Quinteros’s application for voluntary departure. See 8

U.S.C. § 1252(a)(2)(B)(i); Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011),

overruled on other grounds by Moncrieffe v. Holder, 569 U.S. 184 (2013).

PETITION DENIED IN PART; DISMISSED IN PART.

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