Oscar Lima-Nunez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR LIMA-NUNEZ, AKA Oscar No. 16-73452
Manuel Nunez,
Agency No. A071-609-947
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 12, 2019**
Pasadena, California
Before: FERNANDEZ and M. SMITH, Circuit Judges, and OTAKE,*** District
Judge.
Oscar Lima-Nunez, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of the
*
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).
***
The Honorable Jill Otake, United States District Judge for the District
of Hawaii, sitting by designation.
Immigration Judge’s (“IJ”) decision denying his application for withholding of
removal and relief under the Convention Against Torture (“CAT”). We deny the
petition.
(1) The IJ did not err in finding that the U visa application was not only
untimely presented, but also irrelevant to the proceedings before him. The
provisions governing the scope of withholding-only proceedings limit the IJ’s
authority and restrict parties from raising other issues such as admissibility and
eligibility for waivers and other forms of relief. See 8 C.F.R. §§ 1208.2(c)(3)(i),
1208.31(e). Moreover, reinstatement of a prior removal order limits the relief
available to Lima-Nunez because withholding-only proceedings are distinguishable
from regular removal proceedings. See Perez-Guzman v. Lynch, 835 F.3d 1066,
1080-82 (9th Cir. 2016).
As part of his relevance argument, Lima-Nunez asserts that the IJ should
have considered his likelihood of success on the U visa application, which would
require an evaluation of his waiver of inadmissibility. However, the IJ did not
have authority to adjudicate Lima-Nunez’s inadmissibility waiver. Man v. Barr,
940 F.3d 1354, 1357 (9th Cir. 2019) (per curiam) (“Immigration Judges lack the
authority to consider a request by a petitioner for U nonimmigrant status for a
waiver under section 212(d)(3)(A)(ii) of the [Immigration and Nationality] Act.”
(quoting Matter of Khan, 26 I & N Dec. 797, 803 (BIA 2016)). Therefore, the IJ
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correctly determined that Lima-Nunez’s U visa application was irrelevant to the
withholding-only proceedings, and the BIA did not err by affirming that decision.
(2) The IJ did not abuse his discretion or violate Lima-Nunez’s due
process rights by disallowing evidence of his U visa application, denying his
request for a continuance to permit Department of Homeland Security (“DHS”) to
adjudicate the application, or failing to ascertain DHS’s position about the
foregoing. Lima-Nunez failed to demonstrate good cause for a continuance, to the
extent his counsel even sought one. 8 C.F.R. § 1003.29; Ahmed v. Holder, 569
F.3d 1009, 1012 (9th Cir. 2009) (identifying relevant factors as: “(1) the nature of
the evidence excluded as a result of the denial of the continuance, (2) the
reasonableness of the immigrant’s conduct, (3) the inconvenience to the court, and
(4) the number of continuances previously granted”). The IJ was not free to
consider the U visa application in the manner Lima-Nunez requested; Lima-Nunez
caused delays through his lack of diligence and last-minute filings; and an
indefinite continuance would have inconvenienced the IJ. The disallowance of
evidence and denial of a continuance did not violate Lima-Nunez’s due process
rights because he failed to show error or prejudice. See Lata v. I.N.S., 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a
due process challenge).
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Moreover, although parties and Immigration and Customs Enforcement may
jointly seek a stay, continuance, or termination of removal proceedings during the
adjudication of a U visa application, see 8 C.F.R. § 214.14(c)(1)(i), the IJ was not
required to determine DHS’s position about whether, in this withholding-only
proceeding, he should admit particular evidence or continue the matter.
(3) Finally, the IJ’s and BIA’s statements that that an alien whose prior
order of removal has been reinstated is ineligible for any relief other than
withholding of removal were limited to the context of withholding-only
proceedings. They were not general pronouncements that an alien subject to
reinstatement is ineligible for any relief except withholding of removal, and so did
not constitute error.
Petition DENIED.
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