Esteban Reyes v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 26, 2021
• Docket: 20-72405
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ESTEBAN RENE REYES, No. 20-72405

Petitioner, Agency No. A213-082-631

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Esteban Rene Reyes, 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 ordering him removed. Specifically, Reyes

challenges the IJ’s denial of his motion for a continuance. Our jurisdiction is

* 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). governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a

motion for continuance and review de novo claims of due process violations in

immigration proceedings. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th

Cir. 2008). We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion in concluding that Reyes failed to

show good cause to grant his third request for a continuance. See 8 C.F.R.

§ 1003.29; Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir. 1996) (no abuse of

discretion where multiple continuances had already been granted).

To the extent Reyes contends the IJ violated his right to due process at his

December 2017 hearing, we lack jurisdiction to consider the issue because Reyes

failed to raise it to the BIA. See Agyeman v. INS, 296 F.3d 871, 877 (9th Cir.

2002) (“[W]e may not entertain due process claims based on correctable

procedural errors unless the alien raised them below.”).

The BIA did not err in concluding the IJ did not violate Reyes’s right to due

process by proceeding in the absence of a waiver of counsel at his July 2018

hearing. See Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019) (concluding the IJ

did not violate the applicant’s right to counsel where the applicant was provided

“reasonable time to locate counsel”); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.

2000) (requiring error to prevail on a due process claim).

2 20-72405 We reject as unsupported by the record Reyes’s contentions that the agency

otherwise erred in the handling of his case.

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

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

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 20-72405