NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NERY EDGARDO MARTINEZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-70199 

Agency No. A094-451-235 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted July 10, 2023

Pasadena, California

Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO,** District 

Judge.

Nery Edgardo Martinez, a native and citizen of El Salvador, petitions for 

review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal 

from a decision by an Immigration Judge (IJ). The IJ found Martinez to be 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable James Donato, United States District Judge for the 

Northern District of California, sitting by designation.

FILED

AUG 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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removable as charged, and denied his requests for asylum, withholding of removal, 

and cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we 

deny the petition.

1. The BIA did not err in upholding the IJ’s competency determination. 

The two immigration judges that observed Martinez correctly followed Matter of 

M-A-M-, 25 I. & N. Dec. 474 (B.I.A. 2011). And substantial evidence supports the

IJs’ determination that Martinez was competent. See Plancarte Sauceda v. 

Garland, 23 F.4th 824, 831 (9th Cir. 2022). As noted by the IJs, Martinez—who 

proceeded pro se through years of immigration court proceedings—gathered 

evidence, made cogent arguments, followed the IJs’ instructions, and was even 

effective in obtaining some post-conviction relief for himself in the state courts.

2. Martinez contends that the agency erred in concluding that all three of 

his convictions were for crimes involving moral turpitude (CIMTs) when only one 

of his convictions is for a CIMT and it falls within the petty offense exception. But 

Martinez did not present these arguments to the BIA, and a “failure to raise an 

issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect 

to that question.” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (cleaned up), 

abrogated in part by Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1114 (2023). 

The BIA did not independently address the CIMT issue on the merits; it merely 

noted that Martinez was not disputing he had been convicted of three crimes 
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involving moral turpitude. Consequently, we decline to consider Martinez’s nonexhausted arguments about whether his convictions constitute CIMTs. See SantosZacaria, 143 S. Ct. at 1114 (holding that section 1252(d)(1) is a non-jurisdictional 

claims-processing rule “prescribing the method by which the jurisdiction granted 

the courts by Congress is to be exercised” (cleaned up)).

3. Similarly, Martinez did not exhaust his argument that the IJs violated 

his due process rights by depriving him of the opportunity to litigate whether his 

convictions are for CIMTs. This argument is barred by the claims-processing rule 

in 28 U.S.C. § 1252(d)(1). See id. It is without merit in any event. Martinez has 

not shown, and the transcript refutes any argument, that “the proceeding was so 

fundamentally unfair” that he was “prevented from reasonably presenting his 

case.” Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000) (internal citation 

omitted).

4. The BIA correctly found that Martinez failed to challenge the IJ’s 

denial of his claims for relief under the Convention Against Torture (CAT). 

Moreover, the agency’s denial of CAT relief was not erroneous. The evidence in 

the record does not compel the conclusion that Martinez was more likely than not 

to be tortured at the instigation of, or with the consent or acquiescence of, the 

Salvadoran government were he to return there. See Arteaga v. Mukasey, 511 F.3d 

940, 948–49 (9th Cir. 2007).
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PETITION DENIED.