HENRY GUANDIQUE, AKA Henry Gerardo Guandique v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY GUANDIQUE, AKA Henry
Gerardo Guandique,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-73109
Agency No. A204-741-580
MEMORANDUM*
On Petition for Review of an Order of the
Department of Homeland Security
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Henry Guandique, a native and citizen of El Salvador, petitions for review of
an immigration judge’s (“IJ”) order affirming the Department of Homeland
Security’s (“DHS”) reasonable fear determination and final administrative removal
* 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
DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo
constitutional claims and questions of law. Padilla-Martinez v. Holder, 770 F.3d
825, 830 (9th Cir. 2014).
DHS properly placed Guandique in proceedings pursuant to 8 U.S.C.
§ 1228(b), where he is an alien who has not been admitted for permanent residence
who has been convicted of an aggravated felony and is deportable under 8 U.S.C.
§ 1227(a)(2)(A)(iii). See 8 C.F.R. § 238.1(b)(1); 8 U.S.C. § 1101(a)(43)(F) (an
aggravated felony is any “crime of violence” with a sentence of at least one year);
United States v. Ayala-Nicanor, 659 F.3d 744, 753 (9th Cir. 2011) (California
Penal Code § 273.5 is categorically a crime of violence); United States v.
Calderon-Segura, 512 F.3d 1104, 1107-08 (9th Cir. 2008) (finding a rational basis
for expedited removal proceedings).
Guandique has not shown any prejudice from being placed in proceedings
under 8 U.S.C. § 1228(b). He does not challenge the agency’s finding that he
committed an aggravated felony, and thus he does not show he would have been
eligible for any discretionary relief if he had been placed in proceedings pursuant
to 8 U.S.C. § 1229a, and does not challenge the determination he did not show a
reasonable fear to qualify for withholding of removal or protection under the
Convention Against Torture. See Morales-Izquierdo v. Gonzales, 486 F.3d 484,
495 (9th Cir. 2007) (en banc) (To obtain “relief for a violation of procedural due

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process rights in immigration proceedings, an alien must show that the violation
prejudiced him. To show prejudice, [the alien] must present plausible scenarios in
which the outcome of the proceedings would have been different if a more
elaborate process were provided.” (internal quotation marks and citations
omitted)). For the same reason, we reject Guandique’s contention that a lack of
review by the Board of Immigration Appeals violated due process. Id.
The record does not support Guandique’s contention that his rights were
ignored in violation of due process and the Immigration and Nationality Act, where
he received notice of the charges, he declined the opportunity to inspect evidence
and rebut the charges, and he was represented by counsel before the IJ. See 8
U.S.C. § 1228(b)(4); 8 C.F.R. § 238.1(b)(2)(i); Padilla-Martinez, 770 F.3d at 830
(“To prevail on a due-process claim, a petitioner must demonstrate both a violation
of rights and prejudice.”).
Guandique’s contention that his proceedings did not comport with
requirements in 8 U.S.C. § 1228(c) is unavailing, where his proceedings were
conducted pursuant to 8 U.S.C. § 1228(b).
PETITION FOR REVIEW DENIED.

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