Chavez-Govea v. Bondi

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 5, 2025
• Docket: 24-9551
• Status: Published

Opinion

Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 5, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _____________________________________________

SIMON CHAVEZ-GOVEA,

Petitioner,

v. No. 24-9551

PAMELA J. BONDI, United States Attorney General,

Respondent. ____________________________________________

PETITION FOR REVIEW FROM AN ORDER OF THE BOARD OF IMMIGRATION APPEALS ______________________________________

Tiffany Elizabeth Wang (Tess Margaret Hellgren and Rachel Landry with her on the briefs), Innovation Law Lab, Portland, Oregon, for Petitioner.

Liza S. Murcia, Attorney (Anthony Cardozo Payne, Assistant Director, with her on the briefs), U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent. ______________________________________________

Before BACHARACH, PHILLIPS, and FEDERICO, Circuit Judges. _______________________________________________

BACHARACH, Circuit Judge. _______________________________________________

This petition involves immigration proceedings. In these

proceedings, a noncitizen can ordinarily request asylum, withholding of

removal, or deferral of removal. Singh v. Bondi, 130 F.4th 848, 857 (10th Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 2

Cir. 2025). But an immigration judge can place a reasonable time limit on

the request. Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir. 2001).

The reasonableness of a time limit presents two issues here:

1. Is fifteen days a reasonable period for noncitizens to complete a form requesting asylum, withholding of removal, or deferral of removal?

2. Does the immigration judge need to grant continuances when noncitizens seek extra time based on their earlier inattention?

We consider these questions based on the circumstances, which

include the immigration judge’s disclosure of a right to legal

representation, identification of legal representatives willing to work for

free or at a reduced rate, and confirmation that the noncitizen wishes to

proceed without an attorney. In these circumstances, fifteen days could

suffice when a noncitizen attributes the delay to his or her own inattention

at an earlier hearing. Given that inattention at the earlier hearing, an

immigration judge could deem a continuance unwarranted.

1. The immigration judge finds waiver based on a noncitizen’s delay in seeking relief.

The noncitizen, Mr. Simon Chavez-Govea, was subject to removal.

Nonetheless, he could seek relief through asylum, withholding of removal,

or deferral of removal. Singh v. Bondi, 130 F.4th 848, 857 (10th Cir. 2025).

So when Mr. Chavez-Govea appeared for his first hearing, he was told that

he had fifteen days to seek these forms of relief.

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If Mr. Chavez-Govea were to seek relief, he could bring an attorney.

See Part 4, below. So the immigration judge told Mr. Chavez-Govea about

this right and provided a list of legal representatives who work for free or

at a reduced rate. Mr. Chavez-Govea said that he would represent himself

and wanted only to consult a deportation officer about leaving the country

voluntarily.

Mr. Chavez-Govea changed his mind by the time of the second

hearing. At that hearing, Mr. Chavez-Govea requested a continuance,

admitting his prior inattention: “Someone from Las Americas was helping

me out but the truth is that I didn’t really pay that much attention [to the

deadline]. I’m sorry.” R. at 439 – 40. Despite this admission, the

immigration judge asked Mr. Chavez-Govea about facts that might support

asylum, withholding of removal, or deferral of removal. After getting

answers, the immigration judge concluded that Mr. Chavez-Govea had

waived his right to seek these forms of relief.

2. The Board didn’t err in upholding a 15-day deadline.

The threshold question is whether 15 days was enough time for

Mr. Chavez-Govea to submit the form for asylum, withholding of removal,

or deferral of removal. The Board of Immigration Appeals determined that

15 days was reasonable, and we review that determination under the abuse-

of-discretion standard. See Banuelos v. Barr, 953 F.3d 1176, 1179 (10th

3 Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 4

Cir. 2020). 1 In applying this standard, we consider the parties’ arguments

involving the complexity of the form, the availability of help for

Mr. Chavez-Govea, and his attentiveness.

Mr. Chavez-Govea characterizes the form as complicated,

particularly because his native language is Spanish. Given the language

barrier, the immigration judge

• obtained simultaneous translation between English and Spanish,

• warned that a failure to submit the form at the second hearing would constitute a waiver,

• offered to answer questions about the form, and

• told Mr. Chavez-Govea that the form required an explanation of harm experienced in Mexico, who had inflicted that harm and why, and what would happen if he returned to Mexico.

With this explanation, the immigration judge asked Mr. Chavez-

Govea if he had any questions. His only question was whether he might

qualify for voluntary departure. In these circumstances, the Board didn’t

abuse its discretion by determining that the 15-day period had provided

enough time. See In re R-C-R-, 28 I. & N. Dec. 74, 78 – 79 (BIA 2020)

1 Mr. Chavez-Govea also urges a legal error, stating that the Board didn’t acknowledge the standard of good cause for a continuance. See 8 C.F.R. § 1003.29 (allowing continuances when “good cause” is shown). It’s true that the Board didn’t use the term good cause. But the Board explained that (1) the immigration judge had set a reasonable time-period and (2) Mr. Chavez-Govea had chosen not to comply because he expected to get another continuance. We have little reason to think that the Board failed to recognize and apply the standard of good cause.

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(upholding a denial of an extension of time absent a reasonable explanation

when the immigration judge had warned that a failure to timely file would

waive relief).

3. The Board didn’t err in upholding the denial of a continuance.

Mr. Chavez-Govea also argues that the Board should have overturned

the denial of a continuance. For this argument, we again apply the abuse-

of-discretion standard. See Jimenez-Guzman v. Holder, 642 F.3d 1294,

1297 (10th Cir. 2011). 2

When Mr. Chavez-Govea appeared for the second hearing, he hadn’t

completed the form. So he requested “a little more time.” R. at 439. To

evaluate that request, the immigration judge asked Mr. Chavez-Govea why

he needed more time. Mr. Chavez-Govea answered that he hadn’t “really

[paid] that much attention” at the earlier hearing. Id. at 440. Given his

inattention at the first hearing, the immigration judge could reasonably

decline the request for extra time.

Rather than deny the request immediately, however, the immigration

judge explored potential grounds for asylum, withholding of removal, and

2 Mr. Chavez-Govea also argues that the Board abused its discretion by concluding that he (1) had abandoned his claim for relief and (2) had failed to demonstrate good cause for a continuance. But abandonment turns on whether Mr. Chavez-Govea failed to show good cause for a continuance. So our analysis of good cause effectively resolves the separate challenge to a finding of abandonment.

5 Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 6

deferral of removal. After obtaining an explanation of these grounds, the

immigration judge denied the request for more time. The Board upheld this

denial, and that determination fell within the Board’s realm of discretion. 3

Mr. Chavez-Govea points out that he stated that he had been confused

about the instructions in the first hearing. But he made this statement only

after the immigration judge had already ruled. 4 When the immigration

judge ruled, he knew that he had explained the 15-day deadline, had

warned that the failure to file the application within 15 days would waive

relief, had offered to explain the form, had asked if there were any

questions, and had learned that Mr. Chavez-Govea attributed his delay to

his own inattention. Given these circumstances, the Board could reasonably

decline to grant a continuance based on Mr. Chavez-Govea’s failure to

show diligence. 5

3 Mr. Chavez-Govea argues that the Board incorrectly held that he had needed to file a motion to extend the deadline. We need not address this argument because the Board’s other reasons were proper and independent. See p. 4 n.1, above. 4 After the hearing, Mr. Chavez-Govea also stated that he had “heard from lots of other detainees that [the immigration judge] does not make people turn in their [form] until their third hearing.” R. at 350. This statement suggests that Mr. Chavez-Govea understood the deadline, but failed to comply because he expected to get more time. 5 Mr. Chavez-Govea argues that the immigration judge improperly considered the merits of Mr. Chavez-Govea’s claim in denying a continuance. But the Board separately treated Mr. Chavez-Govea’s delay as a waiver of the right to seek relief. So we don’t need to decide whether the immigration judge properly considered the merits of Mr. Chavez-Govea’s 6 Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 7

4. The Board didn’t err in concluding that Mr. Chavez-Govea had not been deprived of his right to counsel.

Mr. Chavez-Govea claims that the immigration judge not only failed

to provide enough time, but also denied him a right to counsel. This claim

blurs the right of a noncitizen to legal representation. A noncitizen can be

represented by an attorney. 8 U.S.C. §§ 1229a(b)(4)(A), 1362. But there’s

no mechanism for the government to pay the attorney. See id. So

noncitizens must hire their own attorneys. See id.

The immigration judge

• explained to Mr. Chavez-Govea that he could bring a legal representative and

• provided a list of legal providers who waive or reduce their fees in immigration matters.

In fact, Mr. Chavez-Govea said that he was getting legal help from a group

called Las Americas. But he argues that the immigration judge should have

done more at each hearing.

In part, Mr. Chavez-Govea argues that his waiver at the initial

hearing hadn’t been knowing and voluntary. This argument lacks record

support. At the first hearing, the immigration judge informed Mr. Chavez-

Govea and others that they “ha[d] the right to be represented by an

claim. See Zzyym v. Pompeo, 958 F.3d 1014, 1033–34 (10th Cir. 2020) (“[W]e can uphold administrative action when an agency gives two independent reasons and only one of them is valid.”).

7 Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 8

attorney or a qualified representative of [the noncitizen’s] own choosing

but at no expense to the Government. Essentially, what that means is that

[the noncitizen] can have an attorney if [the person would] like but [the

person] would have to provide [his or her] own attorney.” R. at 423.

Mr. Chavez-Govea responded that he understood. Id. at 428. The

immigration judge then asked if Mr. Chavez-Govea wanted more time to

find an attorney. Id. at 428–29. Mr. Chavez-Govea responded that he

wanted to represent himself. Id. at 429. In light of the immigration judge’s

explanation and the responses, Mr. Chavez-Govea knowingly and

voluntarily waived counsel at the first hearing.

Mr. Chavez-Govea suggests that the immigration judge should have

revisited the issue at the second hearing. But at that hearing, Mr. Chavez-

Govea didn’t ask for more time to get legal help. He instead noted that he

was already getting help from someone at Las Americas. So the

immigration judge had

• no reason to believe that Mr. Chavez-Govea had changed his mind about representing himself and

• no reason to provide extra time in order to find an attorney.

5. The Board correctly held that the immigration judge didn’t deny due process.

Mr. Chavez-Govea also argues that the immigration judge denied due

process by failing to develop the record or to allow the introduction of

evidence. Because these arguments involve legal issues, we apply de novo 8 Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 9

review. See Witjaksono v. Holder, 573 F.3d 968, 973–74 (10th Cir. 2009)

(applying de novo review over a ruling on due process because a legal

issue was involved).

The parties disagree on whether the immigration judge bears a duty

to develop the record and allow the introduction of evidence. We need not

resolve this disagreement: Regardless of whether the immigration judge

needed to develop the record and allow evidence, he did so. So the Board

correctly held that the immigration judge hadn’t deprived Mr. Chavez-

Govea of due process.

a. Mr. Chavez-Govea’s lack of diligence

At the second hearing, the immigration judge had only one issue:

Was Mr. Chavez-Govea sufficiently diligent to justify a continuance?

On this issue, the immigration judge developed the record, which

showed Mr. Chavez-Govea’s lack of diligence based on four facts:

1. The immigration judge had clearly told Mr. Chavez-Govea at the first hearing that he would need to submit the form when the proceedings resumed in fifteen days.

2. The immigration judge had unambiguously stated at the first hearing that Mr. Chavez-Govea would waive his chance to pursue relief if he failed to submit the form when the proceedings resumed.

3. The immigration judge had offered at the first hearing to answer questions about the form.

4. When the proceedings resumed, Mr. Chavez-Govea admitted that he hadn’t paid enough attention to the deadline.

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Mr. Chavez-Govea argues that he should have been asked to elaborate

when he admitted that he hadn’t paid enough attention. But Mr. Chavez-

Govea doesn’t identify any other pertinent questions.

Regardless of Mr. Chavez-Govea’s reason, his inattention reflected a

lack of diligence. The immigration judge could rely on that lack of

diligence irrespective of Mr. Chavez-Govea’s reasons for his prior

inattention. See Matter of Sibrun, 18 I. & N. Dec. 354, 356 (BIA 1983)

(stating that a continuance is justified only if the “alien . . . make[s] a

reasonable showing that the lack of preparation occurred despite a diligent

good faith effort to be ready to proceed”). So the immigration judge acted

reasonably in denying the continuance when Mr. Chavez-Govea grounded

his request on his prior inattention to the deadline.

b. Potential grounds for asylum, withholding of removal, or deferral of removal

Mr. Chavez-Govea also argues that the immigration judge should

have further developed the factual basis of a claim involving fear of

persecution or torture. This argument fails for two reasons.

First, this argument assumes that the immigration judge should have

granted the continuance. Without a continuance, the immigration judge

would have had no reason to consider the potential fear of persecution or

torture.

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Second, the immigration judge did develop the record as to the

potential for persecution or torture. At the second hearing, the immigration

judge questioned Mr. Chavez-Govea; and he explained that

• members of the Zeta cartel thought that his father-in-law had provided incriminating information and

• other cartels exist in the northern part of Mexico.

Mr. Chavez-Govea faults the immigration judge for changing the

topic after expressing confusion over part of the testimony. When

Mr. Chavez-Govea was asked what he expected if he returned to Mexico,

he answered:

Well, my life is in danger, definitely, because my father- in-law, which is my wife’s father, when the Morales from the Zetas were caught, they were accused – they were found guilty and they – and that’s saying that they were from the same cartel.

R. at 440. The immigration judge responded that he didn’t understand and

asked Mr. Chavez-Govea if he had ever been harmed in Mexico and why

the cartels would want to hurt him. Mr. Chavez-Govea doesn’t identify any

other relevant questions that went unasked. Based on what was asked, we

conclude that the immigration judge adequately developed the record as to

Mr. Chavez-Govea’s fears about persecution and torture.

Mr. Chavez-Govea says that the immigration judge “myopic[ally]”

focused on past harm in Mexico. Appellant’s Reply Br. at 17. We disagree

with this characterization. The immigration judge responded to the

testimony by asking Mr. Chavez-Govea if he had ever been harmed in 11 Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 12

Mexico and who would want to harm him. This questioning lasered in on

the basis of a claim involving persecution or torture. 6

6. The Board correctly deemed a motion to reopen as moot.

In earlier proceedings, the Board issued an initial decision in

February 2022. Roughly three months later (May 2022), Mr. Chavez-Govea

moved to reopen the proceedings. While the motion was pending, however,

we vacated the Board’s initial decision (June 2022). Chavez-Govea v.

Garland, No. 22-9512, 2022 WL 2062864, at *1 (10th Cir. June 8, 2022)

(unpublished).

Upon vacatur of the Board’s decision, there was nothing left to reopen. See

8 C.F.R. § 1003.2(a) (allowing the Board to reopen a matter after rendering

a decision). So the Board correctly decided in July 2024 that the motion to

reopen had become moot.

6 Given the absence of a constitutional violation, we need not decide whether a violation would have prejudiced Mr. Chavez-Govea. 12 Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 13

Mr. Chavez-Govea argues that the Board failed to explain its

reasoning. But the reasoning is obvious: Mr. Chavez-Govea wanted to

reopen a decision that we had already vacated. Given the vacatur of that

decision, the motion to reopen was obviously moot and the Board had little

reason to provide further explanation. See Abdalla v. INS, 43 F.3d 1397,

1398–99 (10th Cir. 1994) (stating that a noncitizen’s petition for review

“was mooted by vacatur of the sole order [the petition] sought to

challenge”); N.L.R.B. v. U.S. Postal Serv., 827 F.2d 548, 554 (9th Cir.

1987) (“The principles of administrative law do not require the [agency] to

spell out the reasoning behind a patently obvious conclusion.”). 7

7. The Board didn’t err in declining to treat the motion to reopen as a motion to remand.

Mr. Chavez-Govea also argues that the Board should have treated the

motion to reopen as a motion to remand to the immigration judge. For this

argument, Mr. Chavez-Govea relies on a regulation, 8 C.F.R.

7 Mr. Chavez-Govea also argues that the Board could have overlooked his delay by reopening the proceedings sua sponte. But the Board deemed the motion moot based on vacatur of the prior decision (rather than Mr. Chavez-Govea’s delay).

13 Appellate Case: 24-9551 Document: 36-1 Date Filed: 08/05/2025 Page: 14

§ 1003.2(c)(4), which allows recharacterization as a motion to remand

when a noncitizen files “[a] motion to reopen a decision rendered by an

immigration judge or DHS officer that is pending when an appeal is filed,

or that is filed while an appeal is pending before the Board.” Explaining

this regulation, the Board states that “[a] motion to reopen that is filed

with the Board during the pendency of an appeal is generally treated as a

motion to remand for further proceedings before an [i]mmigration [j]udge.”

BIA Practice Manual, Ch. 5.6(g). Based on this explanation of the

regulation, Mr. Chavez-Govea argues that the Board should have treated

his motion to reopen as one filed while his appeal was pending before the

Board.

But as noted above, there was no appeal pending before the Board

when Mr. Chavez-Govea moved to reopen. See Part 6, above. The Board

decided the appeal in February 2022, and Mr. Chavez-Govea filed the

motion to reopen roughly three months later. See id. At that time, the

Board’s initial decision was still in effect and there was no appeal pending

before the Board. Absent the filing of a motion to reopen while the Board’s

decision on an appeal was pending, the regulation wouldn’t allow the

Board to treat the motion to reopen as a motion to remand. See 8 C.F.R.

§ 1003.2(c)(4). So the Board didn’t err in declining to treat the motion to

reopen as a motion to remand.

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Mr. Chavez-Govea nonetheless appears to argue that the Board could

have remanded the proceedings to the immigration judge when we vacated

the Board’s earlier decision. But Mr. Chavez-Govea didn’t ask the Board

for a remand to the immigration judge. Absent such a request, the Board

had no reason to treat the motion to reopen as a motion to remand the

proceedings to the immigration judge. The Board thus didn’t err by failing

to grant relief that Mr. Chavez-Govea hadn’t requested.

8. Conclusion

In our view, the Board didn’t err in upholding the immigration

judge’s imposition of a 15-day deadline and denial of a continuance.

Mr. Chavez-Govea admitted that he hadn’t paid enough attention when the

immigration judge explained the 15-day deadline.

Nor did the Board do anything to deprive Mr. Chavez-Govea of his

right to counsel. Mr. Chavez-Govea maintained that he wanted to represent

himself and acknowledged that he was already getting legal help.

In addition, the motion to reopen the Board’s decision became moot

when the decision was vacated.

Petition denied.