Ricardo Garcia-Mendoza v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED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