Anatolio Aragon v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2020
• Docket: 19-71147
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANATOLIO BARCO ARAGON, No. 19-71147

Petitioner, Agency No. A214-276-171

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 5, 2020**

Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

Anatolio Barco Aragon, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his request for a continuance. We

have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the

* 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). agency’s denial of a continuance and decision to deem an application waived for

failure to adhere to an imposed deadline. Cui v. Mukasey, 538 F.3d 1289, 1290

(9th Cir. 2008) (continuance); Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013)

(deeming application waived). We review de novo due process claims. Lin v.

Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). We deny the petition for review.

The agency did not abuse its discretion or violate due process in denying

Aragon’s motion to continue and deeming his application for relief waived for

failure to adhere to the stated filing deadline. The IJ had previously notified

Aragon and his counsel of the filing deadline and consequences of missing it, the

agency considered and rejected Aragon’s reason for the continuance, and Aragon

was represented by counsel, was provided an opportunity to file an application for

relief, and has not shown that the timing of his receipt of his Freedom of

Information Act record prevented him from filing his application. See Taggar, 736

F.3d at 889 (agency did not abuse discretion in deeming application waived for

failing to adhere to deadline imposed by the IJ); Cui, 538 F.3d at 1292

(reasonableness of petitioner’s conduct a factor to consider when reviewing the

denial of a continuance); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926-27

(9th Cir. 2007) (“Where an alien is given a full and fair opportunity to be

represented by counsel, prepare an application for . . . relief, and to present

testimony and other evidence in support of the application, he or she has been

2 19-71147 provided with due process.”).

Finally, Aragon’s contention that the IJ failed to advise him of his apparent

eligibility for cancellation of removal is unsupported where he had already asserted

his intention to seek that form of relief.

Aragon’s motion for a stay of removal is denied as moot.

PETITION FOR REVIEW DENIED.

3 19-71147