Pena Estrada v. Blanche

── Pena Estrada v. Blanche ── Court: Court of Appeals for the Ninth Circuit Date: June 03, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 3 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RODOLFO PENA ESTRADA, No. 25-2988 Agency No. Petitioner, A203-598-137 v. MEMORANDUM* TODD BLANCHE, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 13, 2026 Pasadena, California Before: PAEZ, CALLAHAN, and BUMATAY, Circuit Judges; Dissent by Judge Paez. Petitioner Rodolfo Pena Estrada (“Pena”), a native and citizen of Cuba, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order of an Immigration Judge (“IJ”) finding him not credible and denying asylum, withholding of removal, and protection under the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a) and we deny the petition for review. We review the BIA’s legal conclusions de novo, Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc), and its factual findings for substantial evidence, Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). We must uphold the BIA’s factual determination “unless the record compels a contrary conclusion.” Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020). Where the BIA conducts its own review, our “review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020) (internal quotation marks and citation omitted). Read broadly, Pena raises two arguments on appeal. First, Pena argues that his due process rights were violated when an IJ, who did not preside over his hearing, found him not credible based on a review of the hearing transcripts alone.1 1 At oral argument Petitioner was asked to clarify the parameters of this argument. Oral Argument at 1:53. Petitioner stated that he is raising “a constitutional due process argument, that is subsumed within the credibility . . . standard.” Id. at 2:08-2:17. Petitioner later confirmed that he is raising a constitutional due process challenge, not a statutory challenge that the proceedings violated the REAL ID Act. Id. at 3:26-4:33. Because the dissent’s position rests on an alleged violation of the REAL ID Act, an argument not raised by Petitioner, we decline to address it here. See Nat’l Fed’n of the Blind v. United Airlines Inc., 813 F.3d 718, 740 n.24 (9th Cir. 2016) (“We generally do not reach issues that the parties have not raised.”). 2 25-2988 Second and relatedly, Pena argues that the IJ’s adverse credibility determination was erroneous and not supported by substantial evidence. 1. A due process challenge in an immigration proceeding is reviewed de novo. Zetino v. Holder, 622 F.3d 1007, 1011–12 (9th Cir. 2010) (citing Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir. 2003)). We have long held that “[i]mmigration proceedings, although not subject to the full range of constitutional protections, must conform to the Fifth Amendment’s requirement of due process.” Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005) (as amended). To establish a due process violation a petitioner must show t