Oscar Lima-Nunez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 27, 2019
• Docket: 16-73452
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR LIMA-NUNEZ, AKA Oscar No. 16-73452 Manuel Nunez, Agency No. A071-609-947 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted November 12, 2019** Pasadena, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and OTAKE,*** District Judge.

Oscar Lima-Nunez, a native and citizen of El Salvador, petitions for review

of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of the

* 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 Jill Otake, United States District Judge for the District of Hawaii, sitting by designation. Immigration Judge’s (“IJ”) decision denying his application for withholding of

removal and relief under the Convention Against Torture (“CAT”). We deny the

petition.

(1) The IJ did not err in finding that the U visa application was not only

untimely presented, but also irrelevant to the proceedings before him. The

provisions governing the scope of withholding-only proceedings limit the IJ’s

authority and restrict parties from raising other issues such as admissibility and

eligibility for waivers and other forms of relief. See 8 C.F.R. §§ 1208.2(c)(3)(i),

1208.31(e). Moreover, reinstatement of a prior removal order limits the relief

available to Lima-Nunez because withholding-only proceedings are distinguishable

from regular removal proceedings. See Perez-Guzman v. Lynch, 835 F.3d 1066,

1080-82 (9th Cir. 2016).

As part of his relevance argument, Lima-Nunez asserts that the IJ should

have considered his likelihood of success on the U visa application, which would

require an evaluation of his waiver of inadmissibility. However, the IJ did not

have authority to adjudicate Lima-Nunez’s inadmissibility waiver. Man v. Barr,

940 F.3d 1354, 1357 (9th Cir. 2019) (per curiam) (“Immigration Judges lack the

authority to consider a request by a petitioner for U nonimmigrant status for a

waiver under section 212(d)(3)(A)(ii) of the [Immigration and Nationality] Act.”

(quoting Matter of Khan, 26 I & N Dec. 797, 803 (BIA 2016)). Therefore, the IJ

2 16-73452 correctly determined that Lima-Nunez’s U visa application was irrelevant to the

withholding-only proceedings, and the BIA did not err by affirming that decision.

(2) The IJ did not abuse his discretion or violate Lima-Nunez’s due

process rights by disallowing evidence of his U visa application, denying his

request for a continuance to permit Department of Homeland Security (“DHS”) to

adjudicate the application, or failing to ascertain DHS’s position about the

foregoing. Lima-Nunez failed to demonstrate good cause for a continuance, to the

extent his counsel even sought one. 8 C.F.R. § 1003.29; Ahmed v. Holder, 569

F.3d 1009, 1012 (9th Cir. 2009) (identifying relevant factors as: “(1) the nature of

the evidence excluded as a result of the denial of the continuance, (2) the

reasonableness of the immigrant’s conduct, (3) the inconvenience to the court, and

(4) the number of continuances previously granted”). The IJ was not free to

consider the U visa application in the manner Lima-Nunez requested; Lima-Nunez

caused delays through his lack of diligence and last-minute filings; and an

indefinite continuance would have inconvenienced the IJ. The disallowance of

evidence and denial of a continuance did not violate Lima-Nunez’s due process

rights because he failed to show error or prejudice. See Lata v. I.N.S., 204 F.3d

1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a

due process challenge).

3 16-73452 Moreover, although parties and Immigration and Customs Enforcement may

jointly seek a stay, continuance, or termination of removal proceedings during the

adjudication of a U visa application, see 8 C.F.R. § 214.14(c)(1)(i), the IJ was not

required to determine DHS’s position about whether, in this withholding-only

proceeding, he should admit particular evidence or continue the matter.

(3) Finally, the IJ’s and BIA’s statements that that an alien whose prior

order of removal has been reinstated is ineligible for any relief other than

withholding of removal were limited to the context of withholding-only

proceedings. They were not general pronouncements that an alien subject to

reinstatement is ineligible for any relief except withholding of removal, and so did

not constitute error.

Petition DENIED.

4 16-73452