Aurelia Uriostegui Guadarrama v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2020
• Docket: 18-72963
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 10 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AURELIA URIOSTEGUI No. 18-72963 GUADARRAMA; et al., Agency Nos. A209-128-796 Petitioners, A209-128-797 A209-128-798 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted December 8, 2020** San Francisco, California

Before: LUCERO,*** W. FLETCHER, and IKUTA, Circuit Judges.

Petitioners Aurelia Uriostegui Guadarrama and her two children seek review

of a Board of Immigration Appeals (BIA) decision upholding the Immigration

* 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 Carlos F. Lucero, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Judge’s (IJ) removal order. They argue that the BIA abused its discretion by

affirming the IJ’s decision to deem their application for relief from removal

abandoned and to deny their fourth request for a continuance. Petitioners also

claim that the denial of their continuance request violated their due process rights.

Petitioners’ brief does not explicitly challenge the BIA’s affirmance of the

IJ’s decision to deem their application for relief from removal abandoned. This

argument is therefore waived. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065

(9th Cir. 2020). Even if Petitioners had raised the argument, the BIA did not abuse

its discretion in finding the IJ acted properly when it deemed their asylum

application abandoned. Regulations permit the IJ to set “time limits for the filing

of applications and related documents,” and “[i]f an application or document is not

filed within the time set by the [IJ], the opportunity to file that application or

document shall be deemed waived.” 8 C.F.R. § 1003.31(c).

At a hearing on July 26, 2017, the IJ instructed Uriostegui Guadarrama to

complete the asylum application and bring it with her to her October 11, 2017

hearing. Uriostegui Guadarrama confirmed that she understood this instruction,

but she failed to bring the completed application as directed. The BIA did not

abuse its discretion in holding that the IJ properly deemed the application

abandoned. See Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013).

2 Nor did the BIA abuse its discretion in holding that Petitioners did not

demonstrate good cause for a fourth continuance to obtain counsel or complete an

asylum application. “The decision to grant or deny the continuance is within the

sound discretion of the judge and will not be overturned except on a showing of

clear abuse.” Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015) (quotation

omitted). There was no clear abuse in this case. The IJ granted Petitioners three

continuances spanning nearly eleven months to allow Petitioners to obtain counsel.

The IJ also gave Uriostegui Guadarrama nearly three months to file an asylum

application. The IJ cautioned Uriostegui Guadarrama that further extensions

would not be granted. The BIA did not abuse its discretion in concluding, based

on these facts, that Petitioners had sufficient opportunity to obtain counsel.

Lastly, Petitioners “must show error and substantial prejudice” to prevail on

their due process claim. Larita-Martinez v. I.N.S., 220 F.3d 1092, 1095 (9th Cir.

2000) (quotation omitted). The “error” Petitioners assert is the denial of their

request for a fourth continuance. Because we hold this decision was not an abuse

of discretion, it is also not a fundamental error that may sustain a due process

claim.

PETITION DENIED.