Ricardo Garcia-Mendoza v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2018
• Docket: 16-72052
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO GARCIA-MENDOZA, AKA No. 16-72052 Ricardo Garcia M, AKA Ricardo Garcia Mendoza, AKA Ricardo Mendoza Garcia, Agency No. A077-118-907

Petitioner, MEMORANDUM* v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Ricardo Garcia-Mendoza, 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”) removal order. Our jurisdiction is governed by

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

Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We review de novo

constitutional claims and questions of law. Mohammed v. Gonzales, 400 F.3d 785,

791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

We reject Garcia-Mendoza’s contention that the agency violated due process

or denied his right to counsel, where he had two hearings after the BIA remanded

his case, no attorney had entered a notice of appearance in his case, and Garcia-

Mendoza indicated that he would not have an attorney at any future hearing. See

Jie Lin v. Ashcroft, 377 F.3d 1014, 1032 (9th Cir. 2004) (petitioner may be forced

to proceed without counsel); see also Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th

Cir. 1986) (failure to obtain counsel after two continuances over four months

simply meant alien was “unable to secure counsel at his own expense”); Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due

process claim). We also reject Garcia-Mendoza’s unsupported contention that he

had a Sixth Amendment right to counsel in removal proceedings. See Tawadrus v.

Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (“[T]here is no Sixth Amendment

right to counsel in an immigration hearing.”).

The agency did not abuse its discretion or violate due process in declining to

continue Garcia-Mendoza’s removal proceedings for lack of good cause, where

Garcia-Mendoza did not establish potential eligibility for relief at any stage in

2 16-72052 proceedings. See 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (outlining factors to

consider when reviewing the agency’s denial of a continuance); Singh v. Holder,

638 F.3d 1264, 1274 (9th Cir. 2011) (“[T]he IJ [is] not required to grant a

continuance based on . . . speculations.”); Garcia v. Lynch, 798 F.3d 876, 881 (9th

Cir. 2015) (no abuse of discretion where alien had “ample time” to seek post-

conviction relief) (citation omitted)); Lata, 204 F.3d at 1246 (9th Cir. 2000).

To the extent Garcia-Mendoza now contends his former counsel was

ineffective, we lack jurisdiction to consider this unexhausted contention. See Tijani

v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to

consider legal claims not presented in an alien’s administrative proceedings before

the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 16-72052