Bayron Cancions v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 2, 2021
• Docket: 20-71368
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BAYRON CHEX CANCIONS, No. 20-71368

Petitioner, Agency No. A213-016-628 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 29, 2021** Pasadena, California

Before: M. SMITH and LEE, Circuit Judges, and ROBRENO,*** District Judge.

Bayron Chex Cancions, a native and citizen of Guatemala, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) summarily

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We deny the petition for review because the

BIA did not abuse its discretion in summarily dismissing the appeal or denying

Cancions an extension of time to file his appeal brief, and we lack jurisdiction to

consider his arguments concerning the IJ’s denials of relief.

1. Summary dismissal is appropriate if a petitioner failed to submit a

brief and failed to adequately inform the BIA of the reasons for appeal. See

Garcia-Cortez v. Ashcroft, 366 F.3d 749, 752 (9th Cir. 2004) (“[I]t is well-

established that the BIA may summarily dismiss an alien’s appeal ‘if an alien

submits no separate written brief or statement to the BIA and inadequately informs

the BIA of “what aspects of the decision were allegedly incorrect and why.”’”

(quoting Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir. 1988))). Here, the

reason listed for appeal in the Notice of Appeal was simply “[b]rief to follow,” AR

16, so Cancions failed to specify the reasons for the appeal, and no separate brief

was filed. Thus, summary dismissal was appropriate and the BIA did not abuse its

discretion.

2. The court reviews the BIA’s denial of an extension of time to file an

appeal brief under an abuse of discretion standard because the relevant regulation

states that the BIA, “upon written motion and a maximum of one time per case,

may extend the period for filing a brief or, if permitted, a reply brief for up to 14

2 days for good cause shown.” 8 C.F.R. § 1003.3(c)(1) (2020) (emphasis added); cf.

Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010) (applying an abuse of

discretion standard to the portion of 8 C.F.R. § 1003.3(c)(1) dealing with the BIA’s

decision to consider briefs filed out of time). Similarly to the summary dismissal

regulation, the use of the word “may” in this regulation indicates that the BIA’s

decision whether to grant or deny a motion to extend the time to file a brief is

discretionary and that an abuse of discretion standard should apply. See Singh v.

Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005) (holding that the proper standard of

review for summary dismissal is abuse of discretion after explaining that “[t]he

regulation at issue here states that the BIA ‘may’ summarily dismiss an appeal for

failure to state specific reasons or file a promised brief. Consequently, the Board’s

decision whether to dismiss is discretionary.” (citation omitted)).

Here, the BIA issued a briefing schedule informing Cancions that his brief

was due on November 18, 2019. On November 18 at 4:25 P.M., the BIA received a

motion from Cancions requesting a “short extension” because the briefing schedule

“was just barely received by Counsel last week.” AR 7. The BIA practice manual

provides that “[e]xtension requests must be received by the Board by the brief’s

original due date; however, requests filed the same day as a brief is due are

particularly disfavored and granted only in the most compelling of circumstances.”

BIA Practice Manual, at 65-66 (Revised Oct. 5, 2020),

3 https://www.justice.gov/eoir/page/file/1324276/download. The BIA found that

Cancions did not establish good cause and denied his motion for an extension.

Given that the motion did not provide any explanation as to (1) why there was a

delay in receipt of the briefing schedule or (2) why the delay meant that the brief

could not be filed on time, the BIA did not abuse its discretion in denying the

motion for an extension of time.

3. In his opening brief, Cancions challenges the IJ’s denials of his

applications for asylum, withholding of removal, and CAT protection. However,

Cancions did not raise those challenges to the BIA, and thus, there is no BIA

finding on those issues because they were not exhausted. See Barron v. Ashcroft,

358 F.3d 674, 677 (9th Cir. 2004) (finding that the same statutory provision at

issue in this case (i.e., 8 U.S.C. § 1252(d)(1), which governs judicial review of

final orders of removal) “specifically mandates that the exhaustion of

administrative remedies is a prerequisite to our jurisdiction”). Given that the

applicable statute mandates exhaustion before we can exercise jurisdiction, we lack

jurisdiction to consider the underlying denials of relief.

THE PETITION FOR REVIEW IS DENIED, and, accordingly, THE

MOTION FOR STAY OF REMOVAL IS DENIED AS MOOT.