Carlos Laureano-Martinez v. Merrick B. Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2621
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Carlos Laureano-Martinez
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 23, 2023
Filed: February 28, 2023
[Unpublished]
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Before COLLOTON, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
Mexican citizen Carlos Laureano-Martinez petitions for review of orders of
the Board of Immigration Appeals (BIA). Having jurisdiction under 8 U.S.C.
§ 1252(b)(2), this court denies the petition.
The BIA denied Laureano-Martinez’s motion for an extension of time to file
an administrative appellate brief and dismissed his appeal from the decision of an
immigration judge (IJ) denying him relief from removal. Laureano-Martinez argues
that the BIA abused its discretion and deprived him of due process when it denied
the motion for an extension. The record shows that Laureano-Martinez filed a timely
notice of appeal with the BIA. Over seventeen months later, on January 4, 2021, his
counsel received a briefing schedule dated December 15, 2020, indicating any
administrative appellate brief was due by January 5, 2021. In a motion dated January
7 and received by the agency on January 11, counsel requested an extension of time
to file an administrative appellate brief. The motion was denied as untimely. The
BIA ultimately affirmed the decision of the IJ and dismissed Laureano-Martinez’s
appeal on the merits.
The BIA did not abuse its discretion in denying the motion for an extension.
See Zetino v. Holder, 622 F.3d 1007, 1012-13 (9th Cir. 2010) (BIA’s management
of briefing schedule under 8 C.F.R. §1003.3(c)(1) is reviewed for abuse of
discretion); Holder v. Gonzales, 499 F.3d 825, 828 (8th Cir. 2007) (BIA abuses its
discretion if it issues a decision “without rational explanation, departs from
established policies, invidiously discriminates against a particular race or group, or
fails to consider all factors presented by the alien or distorts important aspects of the
claim); 8 C.F.R. § 1003.3(c)(1) (upon written motion, BIA may extend period for
filing brief for good cause shown); BIA Practice Manual Ch. 4.7(c)(2) (requests to
extend briefing deadlines must be received by original due date; requests received
after due date will be denied). In denying the motion, the BIA adhered to its own
regulations and policies and explained in its denial order that the request was
untimely.
Under the circumstances of this case, the court also concludes that the denial
of the extension motion did not violate due process. Cf. Holder, 499 F.3d at 829 (in
analyzing whether BIA violated due process rights, this court considers the
“individual interest at stake; the risk of erroneous deprivation of the interest through
the use of the procedure in question; the value of different or supplemental
procedural safeguards; and the interest of the government in using the current
procedures, considering the burdens and costs of implementing a different
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procedure”) (citations omitted). Existing procedures would have permitted counsel
to file a timely motion for an extension, and even move the BIA to accept a late-filed
brief, and there is nothing in the record to explain why such avenues were not
pursued. See 8 C.F.R. § 1003.3(c)(1); BIA Practice Manual Chs. 4.7(c)(2), (d).
To the extent Laureano-Martinez also challenges the BIA’s decision
dismissing his appeal, we find no basis for reversal. See Menjivar v. Gonzales, 416
F.3d 918, 920 (8th Cir. 2005), as corrected (Sept. 21, 2005) (asylum requirements);
Guled v. Mukasey, 515 F.3d 872, 881-82 (8th Cir. 2008) (noncitizen who does not
meet standard for asylum cannot meet more rigorous clear probability standard for
withholding of removal).
The petition is denied. See 8th Cir. R. 47B.
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