Pozotempan-Ahuejote v. Garland

Opinion

20-1675 Pozotempan-Ahuejote v. Garland BIA

Ruehle, IJ

A 201 217 310/314

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 23rd day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 JUAN POZOTEMPAN-AHUEJOTE, DAVID 15 POZOTEMPAN-TEPEYAC, 16 Petitioners, 17 18 v. 20-1675 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONERS: Jose Perez, Esq., Syracuse, NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Bernard A.

1 Joseph, Senior Litigation Counsel; 2 Roberta O. Roberts, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioners Juan Pozotempan-Ahuejote and David 12 Pozotempan-Tepeyac, natives and citizens of Mexico, seek 13 review of an April 27, 2020, decision of the BIA affirming a 14 June 15, 2018, decision of an Immigration Judge (“IJ”) denying 15 their motions for a continuance and to amend their prayer for 16 relief to include applications for asylum, withholding of 17 removal, and relief under the Convention Against Torture 18 (“CAT”). In re Juan Pozotempan-Ahuejote, David Pozotempan- 19 Tepeyac, Nos. A 201 217 310/314 (B.I.A. Apr. 27, 2020), aff’g 20 Nos. A 201 217 310/314 (Immig. Ct. Buffalo June 15, 2018). 21 We assume the parties’ familiarity with the underlying facts 22 and procedural history. 23 We have considered both the IJ’s and the BIA’s opinions. 24 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528

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1 (2d Cir. 2006). We review the denial of motions to continue 2 or accept untimely filings for abuse of discretion. See 3 Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008); Morgan v. 4 Gonzales, 445 F.3d 549, 551–52 (2d Cir. 2006). An abuse of 5 discretion occurs if the IJ’s “(1) . . . decision rests on an 6 error of law (such as application of the wrong legal 7 principle) or a clearly erroneous factual finding or (2) [his] 8 decision—though not necessarily the product of a legal error 9 or a clearly erroneous factual finding—cannot be located 10 within the range of permissible decisions.” Morgan, 445 F.3d 11 at 551–52. 12 We find no abuse of discretion in the IJ’s denial of 13 leave to add claims for asylum, withholding of removal, and 14 CAT relief or to continue proceedings to document those 15 claims. “IJs are accorded wide latitude in calendar 16 management, and we will not micromanage” scheduling 17 decisions. Morgan, 445 F.3d at 551. An IJ “may grant a 18 motion for continuance for good cause shown.” 8 C.F.R. 19 § 1003.29. Similarly, an IJ may “disregard the deadlines 20 imposed by the local rules of an immigration court, taking 21 into consideration a removable alien’s right to a ‘reasonable

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1 opportunity to examine the evidence against [him] [and] to 2 present evidence on [his] own behalf.’” Dedji, 525 F.3d at 3 192 (quoting 8 U.S.C. § 1229a(b)(4)(B)). “Where an alien has 4 demonstrated good cause for the failure to timely file 5 documents and a likelihood of substantial prejudice from 6 enforcement of the deadline, an IJ may, in the exercise of 7 his informed discretion, depart from the deadline.” Id. 8 Petitioners, a father and his son, had been in removal 9 proceedings since 2012, but did not move to add claims for 10 asylum, withholding of removal, and CAT protection and to 11 continue proceedings to present evidence in support of those 12 claims until their June 2018 merits hearing, which had been 13 set to consider their long-standing prayer for voluntary 14 departure. They substituted counsel in January 2018, five 15 months prior to the hearing, having employed previous counsel 16 continuously since at least May 2014. They cited the 17 November 2016 disappearance of Pozotempan-Ahuejote’s brother 18 to explain why they did not raise these claims before the 19 June 2018 hearing, but also noted that the claims were based 20 on a 2012 incident in Mexico, in which David was robbed and 21 assaulted. Counsel said he had not had time to prepare more

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1 than a “bare bones” application in the five months leading up 2 to the hearing, but Petitioners did not identify what evidence 3 they planned to submit in support of the application. 4 Counsel alleged that he had been unable to obtain the file 5 from the prior attorney, but conceded that he had not 6 requested the file from the immigration court. 7 Based on these facts, the agency did not abuse its 8 discretion in denying the oral motions to amend the prayer 9 for relief and continue proceedings. The Immigration Court 10 Practice Manual requires motions and amendments to be filed 11 at least 15 days in advance of a hearing, and Petitioners 12 waited until the hearing to seek to add forms of relief and 13 continue proceedings. See Immigration Court Practice Manual 14 § 3.1(b)(2)(A). 1 Moreover, Petitioners did not show good 15 cause for delay because, among other reasons, counsel could 16 have filed a motion before the hearing. Id. § 3.1(d)(3) (IJ 17 “retains the authority to determine how to treat an untimely 18 filing”). Because petitioners should have and could have 19 sought the relief earlier, the agency did not deprive them of 20 due process. See Burger v. Gonzales, 498 F.3d 131, 134 (2d

1 Available at: https://www.justice.gov/eoir/referencematerials /ic/chapter-3/1.

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1 Cir. 2007) (“To establish a violation of due process, an alien 2 must show that she was denied a full and fair opportunity to 3 present her claims or that the IJ or BIA otherwise deprived 4 her of fundamental fairness.” (quotation marks omitted)). 5 For the foregoing reasons, the petition for review is 6 DENIED. All pending motions and applications are DENIED and 7 stays VACATED.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court