Frank Miguel v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 2021
• Docket: 18-72280
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 20 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK MIGUEL, No. 18-72280

Petitioner, Agency No. A205-323-485

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

Respondent.

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

Submitted September 2, 2021** San Francisco, California

Before: RAWLINSON and BYBEE, Circuit Judges, and CARDONE,*** District Judge.

* 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). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. Petitioner Frank Miguel (Miguel), a citizen of Mexico, petitions for review

of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal

of the denial of his applications for cancellation of removal, withholding of

removal, and relief under the Convention Against Torture (CAT).1 Miguel also

challenges the denial of his motions for a continuance and for a remand, as well as

his request for voluntary departure.

1. As a preliminary matter, Miguel asserts that the Immigration Judge (IJ)

lacked jurisdiction to commence and conduct removal proceedings in his case

because the Notice to Appear (NTA) omitted the address of filing. However, this

argument is foreclosed by our recent decision in United States v. Bastide-

Hernandez, 3 F.4th 1193 (9th Cir. 2021). See id. at 1196 (“[W]e now hold that

when an NTA is filed, jurisdiction exists and vests with the immigration court”).

2. The BIA did not abuse its discretion in concluding that the IJ properly

deemed Miguel’s application for cancellation of removal waived when he, through

counsel, abandoned the application. See Taggar v. Holder, 736 F.3d 886, 889 (9th

Cir. 2013) (reviewing for abuse of discretion). However, Miguel asserts that his

counsel was ineffective in abandoning his application. Because the BIA did not

1 Miguel waived review of his CAT claim by failing to raise it in his Opening Brief. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013). 2 address Miguel’s ineffective assistance of counsel claim, we remand for it to

address this claim in the first instance. See Coronado v. Holder, 759 F.3d 977, 987

(9th Cir. 2014), as amended.2

3. Substantial evidence supports the BIA’s finding that Miguel failed to

establish a well-founded fear of future persecution on account of a protected

ground. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019).

Miguel failed to adduce credible, direct, and specific evidence in the record that “it

is more likely than not that he would be subject to persecution on one of the

specified grounds.” Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006)

(citation omitted). In addition, Miguel failed to challenge the agency’s dispositive

finding that he could internally relocate within Mexico to avoid persecution. See

Duran-Rodriguez, 918 F.3d at 1029 n.2.

4. The IJ did not abuse its discretion in denying Miguel’s motion for a

continuance. See Taggar, 736 F.3d at 889. The IJ considered several factors,

including the number of continuances previously granted. See Mu v. Barr, 936

F.3d 929, 936 (9th Cir. 2019).

2 Miguel’s due process claim premised on the IJ’s alleged misreading of certain conviction documents lacks merit because the BIA did not rely on those conviction documents to deny relief. 3 5. Miguel failed to demonstrate that his statutory right to counsel was

violated when the IJ declined his request for a continuance after his retained

counsel was not present at the start of his merits hearing. Because the record

indicates that the IJ took reasonable steps to ensure that Miguel’s right to counsel

was honored, the IJ did not err by declining to continue the hearing. See Arrey v.

Barr, 916 F.3d 1149, 1158 (9th Cir. 2019).

6. Because the basis for Miguel’s motion to remand mirrored his arguments

on the merits, the BIA did not abuse its discretion in denying the motion. See

Angov v. Lynch, 788 F.3d 893, 897 (9th Cir. 2015).

7. Substantial evidence supports the BIA’s determination that the IJ

properly addressed the factors relevant to Miguel’s request for voluntary departure.

See Rojas v. Holder, 704 F.3d 792, 794 (9th Cir. 2012). As Miguel failed to raise a

serious constitutional issue, we lack jurisdiction to further consider Miguel’s

petition for review of the IJ’s discretionary decision to deny voluntary departure.

See Corro-Barragan, 718 F.3d at 1176-77.

PETITION FOR REVIEW DENIED in part; GRANTED in part; and

REMANDED.