Armando Nocelotl v. Loretta Lynch , 671 F. App'x 655 ( 2016 )

FILED
NOT FOR PUBLICATION DEC 20 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO NOCELOTL, No. 15-73784
Petitioner, Agency No. A073-869-637
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Armando Nocelotl, 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”) order of removal. We have jurisdiction under 8 U.S.C.
§ 1252. We review for abuse of discretion the denial of a motion for a
*
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).
continuance and review de novo constitutional claims. Sandoval-Luna v. Mukasey,
526 F.3d 1243, 1246 (9th Cir. 2008). We review for abuse of discretion the
decision to deem an application abandoned. Taggar v. Holder, 736 F.3d 886, 889
(9th Cir. 2013). We deny the petition for review.
The agency did not abuse its discretion or violate due process in denying a
continuance to seek post-conviction relief for failure to show good cause, where
Nocelotl provided no evidence that he had begun to seek post-conviction relief.
See 8 C.F.R. § 1003.29; Sandoval-Luna, 526 F.3d at 1247 (no abuse of discretion
in denying a motion for a continuance where the relief sought was not immediately
available to petitioner); Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011)
(“[T]he IJ [is] not required to grant a continuance based on . . . speculations.”);
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process
challenge, an alien must show error and prejudice).
The agency did not abuse its discretion in determining that Nocelotl
abandoned his application for relief, where he did not file the application with the
immigration court by the deadline the IJ imposed. See 8 C.F.R. § 1003.31(applications in removal proceedings must be filed with the immigration court, and
if an application “is not filed within the time set by the [IJ], the opportunity to file
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that application . . . shall be deemed waived”); Taggar, 736 F.3d at 889 (petitioner
abandoned application where she did not file it by the IJ’s deadline).
The record does not support Nocelotl’s contention that there was ambiguity
concerning the filing deadline or that the agency misstated evidence.
Contrary to Nocelotl’s contention, the agency provided sufficient reasoning
for its determinations. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir.
2010).
PETITION FOR REVIEW DENIED.
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