Aziz Aoraha v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
APR 21 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AZIZ MAROKI AORAHA; SOAADA No. 19-72248
POLS SHAMAWEN,
Agency Nos. A206-915-026
Petitioners, A206-915-039
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 15, 2021**
Pasadena, California
Before: M. SMITH and IKUTA, Circuit Judges, and STEELE,*** District Judge.
*
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 John E. Steele, United States District Judge for the
Middle District of Florida, sitting by designation.
Aziz Maroki Aoraha and Soaada Pols Shamawen petition for review of a
decision of the Board of Immigration Appeals (BIA) affirming the final order of
removal issued by an Immigration Judge (IJ). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
Petitioners did not exhaust their argument that the IJ abused his discretion
and violated their due process rights by failing to obtain a knowing and voluntary
waiver of their right to counsel. See Tall v. Mukasey, 517 F.3d 1115, 1120 (9th
Cir. 2008). Because the agency could have corrected this procedural error had it
been raised by petitioners, we lack jurisdiction to consider it, even though
petitioners have framed this claim as a constitutional claim. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
The IJ did not abuse his discretion by denying petitioners’ request for a
second continuance. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.
2008). The IJ reasonably concluded that the petitioners did not show “good cause”
for the second continuance, 8 C.F.R. § 1003.29, given that the IJ had previously
granted petitioners a two-month continuance to file an asylum application and gave
petitioners clear instructions to return with a completed asylum application, cf.
Pleitez-Lopez v. Barr, 935 F.3d 716, 719–20 (9th Cir. 2019), yet petitioners failed
to provide a completed asylum application (or evidence of filing such an
2
application) at the second hearing. There are no bright-line rules for determining
whether a denial of a continuance constitutes an abuse of discretion, Cui v.
Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008), and the BIA’s reasoning was not
“arbitrary and unreasonable,” see Ahmed v. Holder, 569 F.3d 1009, 1014 (9th Cir.
2009).
Nor did the denial of a continuance violate petitioners’ due process rights,
given that the agency’s denial was not an abuse of discretion, and the petitioners
did not show prejudice, given that (as the BIA pointed out) petitioners have still
not provided any evidence of an attempt to file an asylum application. See Lata v.
I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2000).1
Finally, the BIA did not err in holding that petitioners’ failure to comply
with the IJ’s deadline constituted waiver of the opportunity to file an asylum
application. See 8 C.F.R. § 1003.31(c); Casares-Castellon v. Holder, 603 F.3d
1111, 1113 (9th Cir. 2010).
PETITION DENIED.
1
To the extent petitioners argue that they were denied their due process
rights because they were prevented from filing their asylum application by
ineffective assistance of counsel or fraud, this claim is unexhausted and we lack
jurisdiction to consider it. See Barron, 358 F.3d at 678.
3