Sixto Manuel v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 1, 2019
• Docket: 14-70045
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 1 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SIXTO ARIOS MANUEL, No. 14-70045

Petitioner, Agency No. A046-512-173

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 15, 2019** Honolulu, Hawaii

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

Petitioner Sixto Manuel (“Manuel”) seeks review of a Board of Immigration

Appeals’ (“BIA”) dismissal of his administrative appeal challenging an

Immigration Judge’s (“IJ”) decision denying him a fourth continuance and finding

* 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). him removable as an aggravated felon. We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition.

As an initial matter, we conclude that Manuel’s Petition for Review (“PFR”)

was timely. The only evidence presented suggests that the “technical difficulties”

were a result of a CM/ECF court system malfunction, rather than user error, and

the government has not produced any evidence to the contrary. Based on Manuel’s

uncontested statements, we conclude that our clerk’s office was rendered

inaccessible on the date the PFR was due, which extended Manuel’s filing deadline

to the next “accessible day that is not a Saturday, Sunday, or legal holiday.” Fed.

R. App. P. 26(a)(3)(A). Because Manuel properly filed the PFR on the next

accessible day, his filing was timely. In the future, however, counsel should also

file a contemporaneous motion and affidavit seeking confirmation of the late filing

and explaining what prevented the timely filing. 9th Cir. R. 25-5(c)(2) (formerly

9th Cir. R. 25-5(d)(2)).

The government’s argument that 8 U.S.C. § 1252(a)(2)(C) is a jurisdictional

bar is foreclosed by a post-briefing case. See Garcia v. Lynch, 798 F.3d 876, 881

(9th Cir. 2015) (holding jurisdiction exists to review “the denial of a procedural

motion, such as a motion for a continuance, that rests on a ground independent

from the conviction that triggers the statutory bar”). Under Garcia, we have

jurisdiction to review the denial of Manuel’s motion to continue.

2 Reaching the merits, the agency neither abused its discretion nor violated

due process by denying Manuel’s motion for continuance. The decision to grant or

deny a continuance is within “the sound discretion of the judge and will not be

overturned except on a showing of clear abuse.” Sandoval-Luna v. Mukasey, 526

F.3d 1243, 1247 (9th Cir. 2008) (quotations omitted). The outcome of Manuel’s

state court Rule 40 motion was a speculative collateral attack and did not

necessitate that the IJ or BIA wait any longer until the state court rendered a

decision. See Garcia, 798 F.3d at 881; Singh v. Holder, 638 F.3d 1264, 1274 (9th

Cir. 2011); 8 C.F.R. § 1003.29. The IJ had also previously granted him three

continuances: one for the attorney to become familiar with the case, and two to

seek post-conviction relief. Additionally, the IJ declined to consider the

allegations in the Notice to Appear that corresponded to the criminal counts with

the disputed date discrepancies, instead relying solely on the other two counts of

conviction as the basis for finding Manuel removable.

The agency did not err in denying Manuel’s motion to continue. And

because there was no error or violation of constitutional rights, Manuel’s due

process claim likewise fails. See Padilla-Martinez v. Holder, 770 F.3d 825, 830

(9th Cir. 2014) (“To prevail on a due-process claim, a petitioner must demonstrate

both a violation of rights and prejudice.”).

PETITION FOR REVIEW DENIED.