Ruben Valentin Blancos-Reyes v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 9, 2021
• Docket: 20-13003
• Status: Unpublished

Opinion

USCA11 Case: 20-13003 Date Filed: 03/09/2021 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13003 Non-Argument Calendar ________________________

Agency No. A213-301-130

RUBEN VALENTIN BLANCOS-REYES,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(March 9, 2021)

Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13003 Date Filed: 03/09/2021 Page: 2 of 10

Ruben Valentin Blancos-Reyes * seeks review of a Board of Immigration

Appeals decision (the “BIA”) affirming the immigration judge’s denial of his motion

for a third continuance to file an application for asylum. Upon consideration, we

deny his petition for review.

I.

Blancos-Reyes is a native and citizen of Cuba who entered the United States

in the summer of 2019 without a valid entry document. The Department of

Homeland Security placed Blancos-Reyes in removal proceedings and provided him

a list of lawyers and local organizations who could assist him during his proceedings.

At his initial master calendar hearing on October 8th, Blancos-Reyes and

several other individuals appeared pro se before the immigration judge. The

immigration judge explained that they had a right to a lawyer, reminded them of the

list of lawyers and local organizations that they received earlier, and stated that he

would delay an individual’s hearing upon request to allow that individual to obtain

counsel. Blancos-Reyes then indicated that he wanted time to obtain a lawyer. The

immigration judge granted his request and continued his removal proceedings until

December 5th. The immigration judge further explained that in light of the generous

time period granted for obtaining counsel, if Blancos-Reyes appeared without

* Throughout the record and the briefing before this Court, the petitioner is referred to as “Blancos- Reyes,” “Blanco-Reyes,” “Blanco Reyes,” and “Blancos.” For consistency, he is referred to as “Blancos-Reyes” in this opinion.

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counsel on December 5th, it would be determined that he had waived his right to

counsel and that he would represent himself. Blancos-Reyes indicated that he

understood these instructions.

On December 5th, Blancos-Reyes again appeared pro se before the

immigration judge. Blancos-Reyes told the immigration judge that he had recently

hired an attorney who “just started on the case.” The immigration judge found that

in light of the instructions from the previous hearing, Blancos-Reyes had waived his

right to counsel and would be representing himself. But he also explained that

Blancos-Reyes could obtain counsel at any time and that his counsel could

immediately begin helping him. The immigration judge then provided Blancos-

Reyes with an application for asylum and for withholding of removal known as a

Form I-589. The immigration judge further explained that if Blancos-Reyes did not

have the application completed and ready for submission at the next hearing on

January 2, 2020, he would find the application abandoned.

On December 26th, Blancos-Reyes, proceeding with counsel, filed a motion

for continuance until January 14th. In the motion, Blancos-Reyes argued that he had

obtained new counsel on December 23rd and that holiday closures had prevented

her from adequately preparing for the January 2nd hearing. The immigration judge

denied the motion after determining that good cause for a continuance had not been

established.

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At the hearing on January 2nd, Blancos-Reyes’s new counsel told the

immigration judge that Blancos-Reyes’s application was not complete and made a

motion for continuance to complete it. Specifically, she told the immigration judge

that she did not know about the previous master calendar hearing and that she

obtained Blancos-Reyes’s file from his previous counsel only after the immigration

court closed for the holidays. The immigration judge denied the motion for a

continuance and ordered Blancos-Reyes to be removed from the United States to

Cuba. The immigration judge explained that he had denied the motion for a

continuance on the ground that Blancos-Reyes “had 58 days to obtain counsel, and

thereafter had 28 days to file his application, for a total 86 days.”

Blancos-Reyes then appealed this order to the BIA. The BIA dismissed

Blancos-Reyes’s appeal and denied his accompanying motion to remand. He filed

this petition for review.

II.

On appeal, Blancos-Reyes argues that the BIA (1) mistakenly applied the

“clear error” standard of review to the immigration judge’s denial of his January 2nd

motion for continuance, (2) failed to give reasoned consideration to his claims on

appeal, and (3) abused its discretion in dismissing his appeal. Because the BIA’s

decision did not expressly adopt the immigration judge’s reasoning, our review is

limited to the BIA’s decision alone. See Dos Santos v. U.S. Att’y Gen., 982 F.3d

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1315, 1318 (11th Cir. 2020) (“When the [BIA] issues a decision, we review only

that decision, except to the extent that [it] adopts the immigration judge’s

reasoning.”); Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019)

(stating that when the BIA issues a decision, we review that decision “as the final

judgment, unless the BIA expressly adopted the [immigration judge’s] opinion”).

For the reasons stated below, we conclude that Blancos-Reyes’s arguments fail.

A. The BIA Applied the Correct Standards of Review

First, Blancos-Reyes argues that the BIA mistakenly applied the “clear error”

standard of review to the immigration judge’s decision when it should have applied

the de novo standard of review. Specifically, he asserts that the BIA stated that it

found “no clear error in the immigration judge’s denial of the motion for

continuance.” Blancos-Reyes further asserts that the BIA “simply rubber stamped

the immigration judge’s decision” because it, “like the immigration judge,

adamantly focused on the deadline set by the immigration judge to file the asylum

application and took no consideration of the other factors present in the case . . . .”

We disagree with both assertions.

“The BIA reviews an immigration judge’s findings of fact for clear error and

reviews questions of law, discretion, and judgment and all other issues de novo.”

Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1269 (11th Cir. 2020) (internal quotation

marks omitted) (quoting 8 C.F.R. § 1003.1(d)(3)). Here, the BIA correctly stated

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these standards of review in analyzing the immigration judge’s decision. It also

correctly applied them: nothing in the BIA’s analysis indicates that any deference

was given to the immigration judge on a question of law. The BIA’s determination

that there was “no clear error” in the denial seems to refer to the immigration judge’s

multiple findings of fact underlying the denial. The BIA determined that there was

no clear error “[i]nasmuch as the respondent was given ample time to obtain counsel,

submit the Form I-589, and was forewarned that his application for relief would be

deemed abandoned if not timely filed”—all of which are findings of fact.

Accordingly, we conclude the BIA applied the correct standards of review.

B. The BIA Gave Reasoned Consideration to Blancos-Reyes’s Claims on Appeal

Second, Blancos-Reyes argues that the BIA failed to give reasoned

consideration to his claims on appeal. Specifically, Blancos-Reyes asserts that the

BIA ignored certain facts of his case “lead[ing] to the logical conclusion that the

request [for continuance] should have been granted.” He further asserts that the BIA

“erroneously stated that [he] had been granted two continuances to ‘secure counsel’”

when in fact only one continuance—granted at the October 8th hearing—had been

granted for that purpose. Again, we disagree with these assertions.

“To enable our review, the [BIA] must give ‘reasoned consideration’ to an

applicant’s claims and make ‘adequate findings.’” Ali v. U.S. Att’y Gen., 931 F.3d

1327, 1333 (11th Cir. 2019) (internal quotation marks omitted). We assess the BIA’s

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compliance with this mandate through “a reasoned-consideration examination,”

which is a question we review de novo. Id. In conducting a reasoned-consideration

examination, we determine whether the BIA “has considered the issues raised and

announced its decision in terms sufficient to enable a reviewing court to perceive

that it has heard and thought and not merely reacted.” Bing Quan Lin v. U.S. Att’y

Gen., 881 F.3d 860, 874 (11th Cir. 2018). Although the BIA “is required to consider

all evidence that a petitioner has submitted, it need not address specifically each

claim the petitioner made or each piece of evidence the petitioner presented.” Id.

Ultimately, the BIA “does not give reasoned consideration to a claim when it

misstates the contents of the record, fails to adequately explain its rejection of logical

conclusions, or provides justifications for its decision which are unreasonable and

which do not respond to any arguments in the record.” Id.

Here, the BIA gave reasoned consideration to Blancos-Reyes’s claims.

Although the BIA did not expressly address every piece of evidence or argument

that Blancos-Reyes raised, the record does not establish that it failed to consider all

the relevant evidence. Moreover, the BIA did not misstate the record in describing

the continuances. The BIA stated: “The record demonstrates that the respondent was

provided two continuances, to secure counsel and was provided a Form I-589 by the

immigration judge with clear instructions that it was to be filed with the court at the

next hearing.” Due to the placement of the punctuation in this sentence, it is not clear

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whether the BIA meant to modify the “two continuances” with the rest of the

sentence—i.e. to secure counsel and file the form—or only with the phrase “to secure

counsel.” But, even if the BIA meant that the immigration judge granted both

continuances “to secure counsel,” the sentence would not be inaccurate. The

immigration judge said in the December 5th hearing that Blancos-Reyes could “add

a lawyer to [his] case at any time” and that if he did so, “[his] lawyer [could]

immediately begin helping him.” The second continuance on December 5th gave

Blancos-Reyes more time to obtain counsel before his Form I-589 would be due and,

in that sense, was a continuance “to secure counsel.” Accordingly, we conclude that

the BIA gave reasoned consideration to his claims.

C. The BIA Did Not Abuse Its Discretion in Dismissing Blancos-Reyes’s Appeal

Third, Blancos-Reyes argues that the BIA abused its discretion in affirming

the immigration judge’s denial of his motion for continuance and subsequently

dismissing his appeal. First, Blancos-Reyes asserts that the BIA “failed to consider

important aspects of [his] claim on appeal”—namely his diligence in preparing his

application and the prejudice caused by a denial. Second, he asserts that the BIA’s

“decision is so implausible that it cannot be ascribed to the product of agency

expertise” because “it does not take agency expertise to look at the circumstances

here and find that the continuance request should have been granted.” Once again,

we disagree with these assertions.

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“We review the denial of a motion for continuance for an abuse of

discretion.” Chacku v. U.S. Att’y. Gen., 555 F.3d 1281, 1285 (11th Cir. 2008). We

therefore “ask whether the [BIA] exercised its discretion in an arbitrary or capricious

manner.” Dos Santos, 982 F.3d at 1322–23. For an agency like the BIA, we set aside

its action as arbitrary and capricious only where it (1) “relied on factors which

Congress has not intended it to consider,” (2) “failed to consider an important aspect

of the problem,” (3) “explained its decision in a way that runs counter to the

evidence,” or (4) acted in a manner “so implausible that it[s] [action] could not be

ascribed to a difference in view or the product of agency expertise.” Mendoza v.

Sec’y, Dep’t of Homeland Sec., 851 F.3d 1348, 1353 (11th Cir. 2017) (internal

quotation marks omitted). Under BIA precedent, an immigration judge’s decision

denying a motion for continuance will not be reversed unless the alien “make[s] a

reasonable showing that the lack of preparation occurred despite a diligent good faith

effort to be ready to proceed” and “establishes that that denial caused him actual

prejudice and harm and materially affected the outcome of his case.” Matter of

Sibrun, 18 I.&N. Dec. 354, 356–57 (BIA 1983).

Here, no matter how we may have ruled on Blancos-Reyes’s motion for a

continuance, we cannot say that the BIA abused its discretion in affirming the

immigration judge. First, the BIA did not fail to consider evidence of Blancos-

Reyes’s diligence in preparing for the January 2nd hearing. The BIA accurately

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notes that Blancos-Reyes had already received lengthy continuances before that

hearing and that the immigration judge had clearly warned him that his application

would be considered abandoned if it was not ready for submission at the hearing.

Although Blancos-Reyes contends that the holiday closures in December and

January prevented him from completing his application despite his diligence, he does

not explain his failure to obtain counsel before the closures, starting from his first

hearing on October 8th. Because Blancos-Reyes has failed to show that he was

diligent, we need not examine whether he was prejudiced by the immigration judge’s

denial. Second, in light of the foregoing discussion, the BIA’s decision was not so

implausible that it cannot be ascribed to the product of its expertise, and Blancos-

Reyes’s bare assertion to the contrary does not establish otherwise. Accordingly, we

conclude that the BIA did not abuse its discretion in dismissing his appeal.

IV. CONCLUSION

For the reasons stated above, we DENY Blancos-Reyes’s petition for review.