Jorge Avina Segura v. Loretta E. Lynch , 670 F. App'x 642 ( 2016 )

FILED
NOT FOR PUBLICATION
NOV 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE AVINA SEGURA, No. 12-72525
Petitioner, Agency No. A087-089-879
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 8, 2016**
Portland, Oregon
Before: McKEOWN, W. FLETCHER and FISHER, Circuit Judges.
Jorge Avina Segura (“Avina”) petitions for review of the Board of
Immigration Appeals’ (BIA) determination that he was convicted for delivery of
heroin in Oregon and the BIA’s denial of his motion for a continuance to clarify
his Oregon criminal record. Avina also challenges the BIA’s determination that he
*
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).
waived his opportunity to apply for asylum relief. We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition for review.
1. Substantial evidence supports the BIA’s determination that Avina was
convicted of delivery of heroin in Oregon. See Zheng v. Ashcroft, 332 F.3d 1186,
1193 (9th Cir. 2003) (explaining we review the agency’s factual findings for
substantial evidence). Although Avina disputes he was the defendant in the case,
an order dismissing certain counts from the indictment lists “Jorge Avina-Segura
AKA Pedro Gerra-Galindo” as the defendant; Avina indicated that he used the
name Pedro Gerra-Galindo; and Avina’s FBI rap sheet listed this conviction and
identified Pedro Gerra-Galindo as Avina.
2. The immigration judge (IJ) did not abuse his discretion by denying
Avina’s motion for a continuance to clarify his Oregon criminal record. See
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (holding denial of
a motion for continuance is reviewed for abuse of discretion). Avina did not show
good cause. See 8 C.F.R. § 1003.29 (“The Immigration Judge may grant a motion
for continuance for good cause shown.”). The motion, filed 15 days before the
merits hearing, failed to include any evidence or explanation for his need for a
continuance despite having 14 months to prepare his case. See Ahmed v. Holder,
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569 F.3d 1009, 1012 (9th Cir. 2009) (holding “reasonableness of the immigrant’s
conduct” is relevant to abuse of discretion determination).
3. The IJ did not abuse his discretion by determining Avina waived his
opportunity to file an application for asylum relief. Under 8 C.F.R. § 1003.31(c),
an IJ may set a filing deadline and deem waived any application not filed before
that deadline. The IJ set a reasonable filing deadline of two weeks before the
merits hearing. Avina did not demonstrate good cause for his failure to meet this
deadline. That circumstances in Mexico may have changed since Avina lived there
did not excuse his untimeliness. He was aware of the changed circumstances at
least four months before he attempted to submit his application for relief.
PETITION DENIED.
* * *
Avina’s motion to present oral argument telephonically (Dkt. 35), filed
October 7, 2016, is DENIED AS MOOT in light of the panel’s submission
decision (Dkt. 36), filed October 24, 2016.
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