Esgardo Duarte-Frejo v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESGARDO DUARTE-FREJO, No. 19-72173
Petitioner, Agency No. A206-673-205
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Esgardo Duarte-Frejo, 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”) decision denying his motion for a continuance. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
agency’s denial of a continuance and decision to deem any applications waived for
*
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).
failure to adhere to an imposed deadline. Taggar v. Holder, 736 F.3d 886, 889
(9th Cir. 2013). We review de novo due process claims. Lin v. Ashcroft, 377 F.3d
1014, 1023 (9th Cir. 2004). We deny the petition for review.
The agency did not abuse its discretion or violate due process in denying
Duarte-Frejo’s motion for a continuance and deeming any applications for relief
waived for failure to adhere to the stated filing deadline, where the IJ had
previously notified Duarte-Frejo and his counsel of the filing deadline and the
consequences of missing it; the IJ had advised Duarte-Frejo that he personally,
rather than his attorney, would be responsible for meeting that deadline; Duarte-
Frejo had previously requested and been granted four continuances over his nearly
four years in proceedings and had had over six months since his previous hearing
to prepare any applications for relief with his counsel; and Duarte-Frejo never
specified to the agency or this court what form of relief he would have sought. See
Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008) (factors to consider when
reviewing the denial of a continuance); Taggar, 736 F.3d at 889 (agency did not
abuse discretion in deeming application waived for failing to adhere to deadline
imposed by the IJ); Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014)
(“To prevail on a due-process claim, a petitioner must demonstrate both a violation
of rights and prejudice.”).
BIA did not err in requiring compliance with the procedural requirements of
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Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), where ineffective
assistance of counsel was not plain on the face of the record. See Al Ramahi v.
Holder, 725 F.3d 1133, 1138-39 (9th Cir. 2013) (in the absence of evidentiary
support required by Matter of Lozada, the BIA could reasonably conclude that it
lacked a basis from which to analyze whether former counsel’s performance was
deficient (citing Tamang v. Holder, 598 F.3d 1083, 1090-91 (9th Cir. 2010)).
The temporary stay of removal remains in place until issuance of the
mandate. The motion for a stay of removal is otherwise denied.
PETITION FOR REVIEW DENIED.
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