     Case: 18-60181       Document: 00515028485         Page: 1     Date Filed: 07/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                     No. 18-60181                             FILED
                                   Summary Calendar                       July 10, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
ALDO CASTANON-CASTANON,

                                                  Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A206 097 423


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Aldo Castanon-Castanon, a citizen and national of Guatemala, petitions
for review of a decision of the Board of Immigration Appeals’ (BIA) dismissing
his appeal from the denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). In doing so,
he presents two issues.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 18-60181

      First, he contends the BIA did not issue a reasoned decision because it
relied improperly on findings the immigration judge (IJ) made with respect to
Castanon’s failure to demonstrate a well-founded fear of future persecution to
determine he did not demonstrate past persecution. Castanon, however, did
not present this issue to the BIA. Because he could have done so through a
motion to reconsider, this failure constitutes a failure to exhaust the issue;
consequently we lack jurisdiction to consider it. See Dale v. Holder, 610 F.3d
294, 299 (5th Cir. 2010); Omari v. Holder, 562 F.3d 314, 320–21 (5th Cir. 2009).
      For his other issue, Castanon asserts his due-process rights were
violated at his removal hearing, at which he proceeded pro se, because the IJ:
(1) did not tell him what he would need to prove to show his eligibility for relief;
(2) did not fulfill her obligation to aid in the development of the record by
explaining he could testify in narrative form, asking him open-ended
questions, or asking questions about facts critical to his claim for relief; and
(3) demonstrated a lack of impartiality by questioning him in an impatient,
hostile, and intimidating manner. (He does not renew a fourth claimed due-
process violation raised before the BIA: his inability to present his mother’s
testimony. Accordingly, that claimed violation is abandoned. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).)
      An alien’s claim his due-process rights were violated during his removal
proceeding receives de novo review. Bouchikhi v. Holder, 676 F.3d 173, 180
(5th Cir. 2012). “As a general rule, due process requires that an alien be
provided notice of the charges against him, a hearing before an executive or
administrative tribunal, and a fair opportunity to be heard.”           Okpala v.
Whitaker, 908 F.3d 965, 971 (5th Cir. 2018) (citation omitted). Along that line,
“only this circuit’s precedents (and those of the Supreme Court) bind the BIA
when considering an appeal from an immigration judge in the Fifth Circuit”.



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                                  No. 18-60181

Peters v. Ashcroft, 383 F.3d 302, 305 n.2 (5th Cir. 2004). Accordingly, the BIA
did not err by not deciding Castanon’s appeal under the due-process standards
enunciated by other circuits.
      We agree with the BIA that no evidence in the record reflects that the IJ
“show[ed] any hostility due to extrajudicial sources or such a degree of hostility
that fair judgment was impossible”. Wang v. Holder, 569 F.3d 531, 541 (5th
Cir. 2009). That the IJ may have displayed a lack of patience is insufficient to
establish a due-process violation. See id.
      We also agree with the BIA that Castanon has not demonstrated he was
prejudiced by any of the claimed due-process violations. “To prevail on [a due-
process] challenge, an alien must make an initial showing of substantial
prejudice.” De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (internal
quotation marks and footnote omitted).        To show a due-process violation
resulted in substantial prejudice, an alien must make a prima facie showing
that the outcome of the proceedings would have been different but for the
claimed violation(s). Okpala, 908 F.3d at 971. Therefore, for Castanon to show
the claimed due-process violations caused him substantial prejudice, he had to
provide a prima facie case of his eligibility for either asylum, withholding of
removal, or CAT relief. See Anwar v. I.N.S., 116 F.3d 140, 144–45 (5th Cir.
1997).
      Castanon, however, does not make a meaningful claim he was prejudiced
by his inability to prove his eligibility for CAT relief; as a result, he has
abandoned that issue. See Soadjede, 324 F.3d at 833. As for his seeking
asylum or withholding of removal, the BIA ruled Castanon had not shown the
results of his removal proceeding would have been any different and had,
therefore, not shown substantial prejudice, in part, because he did not present
additional evidence or make a meaningful proffer to show the Guatemalan



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government was unwilling or unable to protect him from gang violence. See
Sharma v. Holder, 729 F.3d 407, 411–12 (5th Cir. 2013) (discussing the
requirements for asylum eligibility); Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir.
2002) (discussing requirements for eligibility for withholding of removal).
Castanon does not dispute that he failed to present such evidence to the BIA,
and he does not contend he has made a prima facie showing the Guatemalan
government was unwilling or unable to protect him from gang violence.
      DISMISSED IN PART and DENIED IN PART.




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