Esgardo Duarte-Frejo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 11, 2020
• Docket: 19-72173
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ESGARDO DUARTE-FREJO, No. 19-72173

Petitioner, Agency No. A206-673-205

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

Respondent.

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

Submitted September 8, 2020**

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Esgardo Duarte-Frejo, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

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

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

agency’s denial of a continuance and decision to deem any applications waived for

* 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). failure to adhere to an imposed deadline. Taggar v. Holder, 736 F.3d 886, 889

(9th Cir. 2013). 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

Duarte-Frejo’s motion for a continuance and deeming any applications for relief

waived for failure to adhere to the stated filing deadline, where the IJ had

previously notified Duarte-Frejo and his counsel of the filing deadline and the

consequences of missing it; the IJ had advised Duarte-Frejo that he personally,

rather than his attorney, would be responsible for meeting that deadline; Duarte-

Frejo had previously requested and been granted four continuances over his nearly

four years in proceedings and had had over six months since his previous hearing

to prepare any applications for relief with his counsel; and Duarte-Frejo never

specified to the agency or this court what form of relief he would have sought. See

Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008) (factors to consider when

reviewing the denial of a continuance); 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); Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014)

(“To prevail on a due-process claim, a petitioner must demonstrate both a violation

of rights and prejudice.”).

BIA did not err in requiring compliance with the procedural requirements of

2 19-72173 Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), where ineffective

assistance of counsel was not plain on the face of the record. See Al Ramahi v.

Holder, 725 F.3d 1133, 1138-39 (9th Cir. 2013) (in the absence of evidentiary

support required by Matter of Lozada, the BIA could reasonably conclude that it

lacked a basis from which to analyze whether former counsel’s performance was

deficient (citing Tamang v. Holder, 598 F.3d 1083, 1090-91 (9th Cir. 2010)).

The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED.

3 19-72173