De La O-Turcios v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2023
• Docket: 22-592
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICTOR MANUEL DE LA O-TURCIOS, No. 22-592 Agency No. Petitioner, A206-548-456 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 21, 2023** Portland, Oregon

Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.

Petitioner Victor Manuel De La O-Turcios, a native and citizen of El Salvador,

seeks review of a Board of Immigration Appeals (BIA) decision affirming the

Immigration Judge’s (IJ) finding that Petitioner abandoned his applications for relief

because he failed to comply with the biometrics requirements in a timely manner,

* 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). despite having been advised of the requirements, the deadline to complete them, and

the consequences of failing to complete them.

“An IJ’s decision to deem an asylum application abandoned is reviewed for

abuse of discretion.” Gonzalez-Veliz v. Garland, 996 F.3d 942, 948 (9th Cir. 2021)

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

The agency did not abuse its discretion in concluding that Petitioner

abandoned his application by failing to complete biometrics. By statute, an applicant

must undergo identification—including biometrics analysis—before an application

may proceed. 8 U.S.C. §§ 1158(d)(1), 1158(d)(5)(A)(i). The regulations provide

that failure to comply “within the time allowed … constitutes abandonment of the

application and the immigration judge may enter an appropriate order dismissing the

application[.]” 8 C.F.R. § 1003.47(c); see also 8 C.F.R. § 1208.10. As part of this

process, an IJ must “specify for the record when the respondent receives the

biometrics notice and instructions and the consequences for failing to comply with

the requirements of this section.” 8 C.F.R. § 1003.47(d). Here, the IJ followed each

of the required steps. The IJ (1) notified the applicant of the biometrics requirements

and provided him with instructions for such procedures; (2) informed him of the

deadline to complete biometrics; and (3) warned him of the consequences for failing

to comply. See id.; Gonzalez-Veliz, 996 F.3d at 948–49; Matter of D-M-C-P-, 26 I.

& N. Dec. 644, 648 (BIA 2015).

2 22-592 1. Court transcripts reflect that Petitioner received written biometrics

instructions at his July 8, 2015 hearing. Petitioner also concedes that at his March

23, 2018 hearing, he received biometrics instructions.

2. At the July 8, 2015 hearing, the IJ provided clear deadlines along with

verbal and written instructions: “Your hearing is going to be on February 6,

2018 … you need to follow the instructions that you’re going to be given and get

yourself properly fingerprinted before that hearing.” The IJ reiterated the deadline

again later in the hearing: “[Y]ou’re going to get an appointment notice to go in and

get fingerprinted. You must do this before the [next] hearing, so do it soon.”

Petitioner responded: “Of course.” Petitioner’s argument that the IJ was “vague”

and did not “not clearly give[] a date by which he must comply” is unsupported by

the record.

3. The IJ explicitly warned Petitioner of the consequences of failing to

comply: “If you don’t follow these instructions or you don’t go to the appointment

to take your fingerprints, then your [application] is not complete and it cannot be

approved by the Court even if you met all the other requirements for asylum or other

protection” (emphasis added). Petitioner assured the IJ: “I’ll go,” and “I’ll send it

right now.” Though the IJ did not explicitly use the word “abandoned,” the IJ’s

verbal warnings adequately communicated “the consequences” as required by 8

C.F.R. § 1003.47(d). Moreover, the written language Petitioner received used the

3 22-592 word “abandoned.”

An applicant can overcome his failure to comply with biometrics

requirements only if that failure was the result of good cause. 8 C.F.R. § 1208.10;

see Gonzalez-Veliz, 996 F.3d at 948. Though Petitioner is “not a native English

speaker” and was “not represented by counsel” before the agency, such justifications

are not good cause. Petitioner participated in all eight hearings using an interpreter

and repeatedly assured the court that he understood what was required of him. And

proceeding pro se is not a valid justification for failing to follow the biometrics

instructions. Thus, the agency did not abuse its discretion in finding that Petitioner

did not provide “good cause” for failing to comply.

Finally, Petitioner argues he remains eligible for cancellation of removal

based on a defective Notice to Appear. But we agree with the government that

Petitioner did not raise this issue before the agency, and thus it is unexhausted. See

8 U.S.C. § 1252(d)(1); Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir.

2023) (noting that § 1252(d)(1) is a claim-processing rule that the court “must

enforce” when it is properly raised by the government (quoting Fort Bend Cnty. v.

Davis, 139 S. Ct. 1843, 1849 (2019))).

Accordingly, the petition is DENIED.

4 22-592