Jason Albert Thurton v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON ALBERT THURTON,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73025
Agency No. A208-356-408
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 4, 2021**
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and BREYER,*** District Judge.
Jason Thurton appeals from a Final Administrative Removal Order issued
against him by the Department of Homeland Security (“DHS”) under 8 U.S.C.
* 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 Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
FILED
OCT 7 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 1228(b). As the parties are familiar with the facts, we do not recount them here.
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.1
1. Thurton contends that DHS abused its discretion when the agency denied
him a 10-day window to respond to the Notice of Intent. Under 8 C.F.R.
§ 238.1(c)(1), a noncitizen who does not concede deportability “will have 10
calendar days . . . to file a response” to a Notice of Intent. See also 8 U.S.C.
§ 1228(b)(4)(C) (“[The agency] shall provide that . . . the alien has a reasonable
opportunity to inspect the evidence and rebut the charges.”). Here, Thurton stated
that he wished to “contest [his] deportability” and was “attaching documents in
support of [his] rebuttal and request for further review.” Nonetheless, DHS
immediately issued Thurton a removal order—which had the same date and time
stamp as the Notice of Intent—instead of giving him 10 days to respond or request
review of the government’s evidence. The government concedes that this was
procedural error.
But Thurton has not demonstrated how he was prejudiced by the error. On
appeal, he challenges only his alienage. He does not dispute that he was convicted
of an aggravated felony that makes him removable under 8 U.S.C. § 1228(b).
Because he does not allege, even with additional time on appeal, that he is a United
1 We also deny Thurton’s motion for a stay of removal as moot (Dkt. No. 1) and
deny his motion to supplement the record (Dkt. No. 18).

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States citizen, national, or lawful permanent resident, we conclude that the
agency’s error was harmless. See United States v. Calderon-Medina, 591 F.2d
529, 531 (9th Cir. 1979) (“Violation of a regulation renders a deportation unlawful
only if the violation prejudiced interests of the alien which were protected by the
regulation.”).
2. Thurton also argues that DHS violated his due process rights by denying
him access to counsel during his removal proceeding, and that this error warrants a
presumption of prejudice and actually prejudiced him. But Thurton’s contention is
squarely foreclosed by Gomez-Velazco v. Sessions, 879 F.3d 989 (9th Cir. 2018),
which held that in administrative removal proceedings, a petitioner who “is denied
the right to counsel during his initial interaction with DHS officers” must
demonstrate prejudice, “provided the individual is able to consult with counsel
before the removal order is executed.” Id. at 994–95. Again, because Thurton’s
only argument regarding prejudice is about his alienage, and because he does not
allege—even with counsel on appeal—that he is a United States citizen, national,
or lawful permanent resident, he is unable to show how the “violation potentially
affected the outcome of the immigration proceeding.” Id. at 993. Thus, we also
reject Thurton’s due process claim.
PETITION FOR REVIEW DENIED.

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