Pedro Padilla-Lepe v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
AUG 15 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO PADILLA-LEPE, No. 16-70494
Petitioner, Agency No. A090-070-334
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 12, 2019
Pasadena, California
Before: SCHROEDER and GRABER, Circuit Judges, and M. WATSON,**
District Judge.
Petitioner Pedro Padilla-Lepe seeks review of the Board of Immigration
Appeals’ ("BIA") decision denying his motion to remand and affirming the
immigration judge’s ("IJ") denial of a continuance for Petitioner to submit updated
fingerprints to the government. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
1. Substantial evidence supported the agency’s factual finding that
Petitioner’s own lack of diligence, rather than any deficient performance by his
prior attorneys, caused his failure to submit the required fingerprints. See Singh v.
Whitaker, 914 F.3d 654, 658 (9th Cir. 2019) (articulating the standard of review).
Petitioner failed to explain why the evidence compelled a contrary conclusion,
especially where he did not refute the evidence that his prior attorneys made at
least nine or ten attempts to contact him between the December 2013 and
September 2014 hearings. Thus, the BIA did not abuse its discretion by denying
Petitioner’s motion to remand, which sought to lay the blame for the missing
fingerprints on counsel. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.
2005) ("The BIA abuses its discretion when it acts arbitrarily, irrationally, or
contrary to the law." (internal quotation marks omitted)).
2. Likewise, the BIA did not abuse its discretion by affirming the IJ’s denial
of the continuance. See Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008)
(describing the four relevant factors for assessing an agency’s denial of a
continuance). From December 2013 to September 2014, Petitioner failed to
communicate with his attorneys and failed to make any effort to submit
fingerprints to the government, even though he knew that his applications for relief
had been denied previously because of his failure to file supporting documents on
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time. Again, substantial evidence supported the conclusion that Petitioner did not
show good cause for a continuance, as required under 8 C.F.R. § 1003.29, because
"he did not demonstrate that he acted with due diligence to have his fingerprints
updated." As the BIA stated, Petitioner’s motion for a continuance, which claimed
that he required a continuance mainly because of the birth of his daughter two
weeks before the September 2014 hearing, did not explain "why he made no
apparent attempt to comply with biometric requirements over the previous
months."
PETITION DENIED.
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