24-176 Alvarracin Navas v. Blanche BIA Perl, IJ A240 479 259/260
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of July, two thousand twenty- six.
PRESENT: JOHN M. WALKER, JR., STEVEN J. MENASHI, ALISON J. NATHAN, Circuit Judges. _____________________________________
JOHANNA PRICILA ALVARRACIN NAVAS, N.K.J.A., Petitioners,
v. 24-176 NAC TODD BLANCHE, ACTING UNITED STATES ATTORNEY GENERAL, Respondent.*
* The Clerk of Court is respectfully directed to amend the caption as set forth above. FOR PETITIONERS: Rafael Urena, Urena & Associates, Brooklyn, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Jessica E. Burns, Senior Litigation Counsel; Shelley K.G. Clemens, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Johanna Pricila Alvarracin Navas and her minor child, natives
and citizens of Ecuador, seek review of a January 3, 2024, decision of the BIA
affirming an October 24, 2022, decision of an Immigration Judge (“IJ”) deeming
any application for asylum and related relief abandoned, and denying their
motion to continue their merits hearing. In re Alvarracin Navas, Nos. A 240 479
259/260 (B.I.A. Jan. 3, 2024), aff’g Nos. A 240 479 259/260 (Immigr. Ct. N.Y.C. Oct.
24, 2022). We assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
2 enforcement of a deadline and its denial of a continuance for abuse of discretion.
See Roman v. Garland, 49 F.4th 157, 166–67 (2d Cir. 2022) (continuance); Dedji v.
Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) (deadline). An abuse of discretion will
be found if the agency’s “decision rests on an error of law . . . or a clearly erroneous
factual finding” or if the decision “cannot be located within the range of
permissible decisions.” Roman, 49 F.4th at 167 (quotation marks omitted).
I. Abandonment of Applications
An IJ has “broad discretion to set and extend filing deadlines pursuant to 8
C.F.R. § 1003.31.” Dedji, 525 F.3d at 191. “If an application . . . is not filed within
the time set by the immigration judge, the opportunity to file that application . . .
shall be deemed waived.” 8 C.F.R. § 1003.31(h).
Here, the IJ warned Alvarracin Navas in June 2022 that she had until
October 10, 2022, to file an application for asylum through the immigration court’s
electronic case-management system. Alvarracin Navas does not dispute that she
failed to file an application with the immigration court by that deadline, that she
did not move for an extension, that her submission of a partial application to U.S.
Citizenship and Immigration Services to comply with biometric requirements was
insufficient to meet the deadline, and that her motion for a continuance of her
3 hearing did not relieve her of her obligation to meet the deadline. See 8 C.F.R.
§ 1003.31(f) (“All documents that are to be considered in a proceeding before an
immigration judge must be filed with the immigration court having administrative
control over the Record of Proceeding.”). Those issues are thus abandoned. See
Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any
claims not adequately presented in an appellant’s brief, and an appellant’s failure
to make legal or factual arguments constitutes abandonment.” (quotation marks
omitted)).
Instead, Alvarracin Navas argues that her failure to file an application by
the deadline was the result of ineffective assistance of counsel. As the
Government argues, this ineffective assistance of counsel claim is unexhausted
and not properly before us. See Arango-Aradondo v. I.N.S., 13 F.3d 610, 614 (2d Cir.
1994) (requiring ineffective assistance of counsel claims to be raised before the BIA
in the first instance). Alvarracin Navas did not raise her ineffective assistance of
counsel claim on appeal to the BIA, and while not jurisdictional, administrative
exhaustion is “mandatory” when the Government invokes it. Ud Din v. Garland,
72 F.4th 411, 419–20 & n.2 (2d Cir. 2023). Accordingly, if she wishes to pursue
that claim further, she must first move to reopen before the agency. See Yang v.
4 Gonzales, 478 F.3d 133, 142 (2d Cir. 2007) (“We generally require that ineffective
assistance claims be presented in the first instance to the BIA, either through a
motion to reopen or on direct appeal.”); see also Rashid v. Mukasey, 533 F.3d 127,
130–31 (2d Cir. 2008) (recognizing that time limit for reopening may be equitably
tolled based on ineffective assistance of counsel).
II. Denial of a Continuance
“IJs are accorded wide latitude in calendar management,” Morgan v.
Gonzales, 445 F.3d 549, 551 (2d Cir. 2006), and an IJ “may grant a motion for
continuance for good cause shown,” 8 C.F.R. § 1003.29. But to prevail on a
challenge to the denial of a continuance to obtain evidence or apply for relief, a
petitioner must “make a reasonable showing that the lack of preparation occurred
despite a diligent good faith effort to be ready to proceed,” and “that any
additional evidence [s]he seeks to present is probative, noncumulative, and
significantly favorable” to her. Matter of Sibrun, 18 I. & N. Dec. 354, 356 (B.I.A.
1983). She must also show that the denial of a continuance “caused . . . actual
prejudice and harm and materially affected the outcome of [her] case.” Id. at 356–
57. 1
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24-176 Alvarracin Navas v. Blanche BIA Perl, IJ A240 479 259/260
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of July, two thousand twenty- six.
PRESENT: JOHN M. WALKER, JR., STEVEN J. MENASHI, ALISON J. NATHAN, Circuit Judges. _____________________________________
JOHANNA PRICILA ALVARRACIN NAVAS, N.K.J.A., Petitioners,
v. 24-176 NAC TODD BLANCHE, ACTING UNITED STATES ATTORNEY GENERAL, Respondent.*
* The Clerk of Court is respectfully directed to amend the caption as set forth above. FOR PETITIONERS: Rafael Urena, Urena & Associates, Brooklyn, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Jessica E. Burns, Senior Litigation Counsel; Shelley K.G. Clemens, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Johanna Pricila Alvarracin Navas and her minor child, natives
and citizens of Ecuador, seek review of a January 3, 2024, decision of the BIA
affirming an October 24, 2022, decision of an Immigration Judge (“IJ”) deeming
any application for asylum and related relief abandoned, and denying their
motion to continue their merits hearing. In re Alvarracin Navas, Nos. A 240 479
259/260 (B.I.A. Jan. 3, 2024), aff’g Nos. A 240 479 259/260 (Immigr. Ct. N.Y.C. Oct.
24, 2022). We assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
2 enforcement of a deadline and its denial of a continuance for abuse of discretion.
See Roman v. Garland, 49 F.4th 157, 166–67 (2d Cir. 2022) (continuance); Dedji v.
Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) (deadline). An abuse of discretion will
be found if the agency’s “decision rests on an error of law . . . or a clearly erroneous
factual finding” or if the decision “cannot be located within the range of
permissible decisions.” Roman, 49 F.4th at 167 (quotation marks omitted).
I. Abandonment of Applications
An IJ has “broad discretion to set and extend filing deadlines pursuant to 8
C.F.R. § 1003.31.” Dedji, 525 F.3d at 191. “If an application . . . is not filed within
the time set by the immigration judge, the opportunity to file that application . . .
shall be deemed waived.” 8 C.F.R. § 1003.31(h).
Here, the IJ warned Alvarracin Navas in June 2022 that she had until
October 10, 2022, to file an application for asylum through the immigration court’s
electronic case-management system. Alvarracin Navas does not dispute that she
failed to file an application with the immigration court by that deadline, that she
did not move for an extension, that her submission of a partial application to U.S.
Citizenship and Immigration Services to comply with biometric requirements was
insufficient to meet the deadline, and that her motion for a continuance of her
3 hearing did not relieve her of her obligation to meet the deadline. See 8 C.F.R.
§ 1003.31(f) (“All documents that are to be considered in a proceeding before an
immigration judge must be filed with the immigration court having administrative
control over the Record of Proceeding.”). Those issues are thus abandoned. See
Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any
claims not adequately presented in an appellant’s brief, and an appellant’s failure
to make legal or factual arguments constitutes abandonment.” (quotation marks
omitted)).
Instead, Alvarracin Navas argues that her failure to file an application by
the deadline was the result of ineffective assistance of counsel. As the
Government argues, this ineffective assistance of counsel claim is unexhausted
and not properly before us. See Arango-Aradondo v. I.N.S., 13 F.3d 610, 614 (2d Cir.
1994) (requiring ineffective assistance of counsel claims to be raised before the BIA
in the first instance). Alvarracin Navas did not raise her ineffective assistance of
counsel claim on appeal to the BIA, and while not jurisdictional, administrative
exhaustion is “mandatory” when the Government invokes it. Ud Din v. Garland,
72 F.4th 411, 419–20 & n.2 (2d Cir. 2023). Accordingly, if she wishes to pursue
that claim further, she must first move to reopen before the agency. See Yang v.
4 Gonzales, 478 F.3d 133, 142 (2d Cir. 2007) (“We generally require that ineffective
assistance claims be presented in the first instance to the BIA, either through a
motion to reopen or on direct appeal.”); see also Rashid v. Mukasey, 533 F.3d 127,
130–31 (2d Cir. 2008) (recognizing that time limit for reopening may be equitably
tolled based on ineffective assistance of counsel).
II. Denial of a Continuance
“IJs are accorded wide latitude in calendar management,” Morgan v.
Gonzales, 445 F.3d 549, 551 (2d Cir. 2006), and an IJ “may grant a motion for
continuance for good cause shown,” 8 C.F.R. § 1003.29. But to prevail on a
challenge to the denial of a continuance to obtain evidence or apply for relief, a
petitioner must “make a reasonable showing that the lack of preparation occurred
despite a diligent good faith effort to be ready to proceed,” and “that any
additional evidence [s]he seeks to present is probative, noncumulative, and
significantly favorable” to her. Matter of Sibrun, 18 I. & N. Dec. 354, 356 (B.I.A.
1983). She must also show that the denial of a continuance “caused . . . actual
prejudice and harm and materially affected the outcome of [her] case.” Id. at 356–
57. 1
1 Because Alvarracin Navas sought a continuance to obtain evidence, her reliance on the 5 As the BIA found, Alvarracin Navas’s motion for a continuance did not
reflect “a diligent good faith effort to be ready to proceed.” Id. at 356. Her
motion stated only that it was “taking longer than expected” to receive documents
from Ecuador—she did not provide any information about when requests were
made or to whom, what efforts were made to follow up, or why they were delayed.
Certified Admin. Rec. at 164. Moreover, while Alvarracin Navas asserted before
the BIA that the delay related to the COVID-19 pandemic, she did not offer that
same explanation in her motion for a continuance before the immigration judge.
And in any case, her attorney had agreed to an October 2022 hearing in June of
that year—that is, over two years after the start of the pandemic. So any COVID-
19 related delay was not unexpected.
As to the significance of the evidence sought and prejudice, Alvarracin
Navas abandoned her asylum claim by not filing an application (or requesting a
filing extension) by the IJ’s deadline. She also does not dispute that she could
have (and that competent counsel would have) filed an application by the deadline
without the evidence that she sought a continuance to obtain. As the agency
standard for a continuance to pursue collateral relief is misplaced. See Matter of L-A-B- R-, 27 I. & N. Dec. 405, 407 (A.G. 2018). 6 reasoned, because the application was already abandoned, her difficulty obtaining
additional evidence to support it was not good cause for a continuance, and she
could not show that the denial of a continuance affected the outcome of her case.
But even setting aside abandonment, Alvarracin Navas did not demonstrate
prejudice because she has not shown that her proposed application had potential
merit. She has not identified what her asylum claim would be or how any
additional evidence would help establish it. Absent such information, there is no
basis to conclude that her application might have been granted. 2
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
2 A due process claim would fail for the same reasons. See Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (requiring a showing of prejudice to state a due process claim). 7