Armando Arriaga-Cruz v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO ARRIAGA-CRUZ, No. 19-70213
Petitioner, Agency No. A213-085-149
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 4, 2021**
Pasadena, California
Before: TALLMAN and CALLAHAN, Circuit Judges, and CHRISTENSEN,***
District Judge.
Petitioner Armando Arriaga-Cruz (“Arriaga-Cruz”), a native and citizen of
Mexico, seeks review of a Board of Immigration Appeals (“BIA”) order
*
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 Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
dismissing Arriaga-Cruz’s appeal from the Immigration Judge’s (“IJ”) decision
ordering removal to Mexico. The IJ denied Arriaga-Cruz’s cancellation of
removal application for failure to properly file it by the deadline, and deemed as
abandoned Arriaga-Cruz’s application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). This Court has
jurisdiction under 8 U.S.C. § 1252 to review both the constitutional challenge and
the BIA’s order affirming the IJ’s decision to deny the applications. We deny the
petition in part and dismiss in part.
1. The BIA properly concluded that Arriaga-Cruz abandoned his
applications for relief from removal by failing to file by the deadline set by the IJ.
The IJ acted well within his discretion under 8 C.F.R. § 1003.31(c). See Taggar v.
Holder, 736 F.3d 886, 889 (9th Cir. 2013) (holding this Court reviews for abuse of
discretion “an IJ’s decision to deem applications waived for failing to adhere to
deadlines imposed under 8 C.F.R. § 1003.31”). As of the master calendar hearing
on July 10, 2018, Arriaga-Cruz had not filed proof of fee payment or an asylum
application, which were due October 30, 2017, over seven months earlier. Because
the IJ had broad discretion to set and extend time limits to file the applications, he
properly deemed the applications waived when Arriaga-Cruz did not properly file
them within the time set. 8 C.F.R. § 1003.31(c); Taggar, 736 F.3d at 889–90.
2. The IJ did not deny Arriaga-Cruz due process of law. Contrary to
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Arriaga-Cruz’s allegations, the proceedings were not “so fundamentally unfair”
that he “was prevented from reasonably presenting his case.” Colmenar v. INS,
210 F.3d 967, 971 (9th Cir. 2000) (internal citation omitted). The administrative
record shows that the IJ afforded Arriaga-Cruz multiple opportunities to move
forward with his case, including granting continuances and providing Arriaga-Cruz
the opportunities to find new counsel, make a motion to reconsider, and file an
application fee waiver request.1
Here, the record lacks evidence of any prejudice or bias from the IJ. Instead,
it demonstrates that the IJ acted as a neutral factfinder and not a “partisan
adjudicator seeking to intimidate [Arriaga-Cruz] and his counsel.” Colmenar, 210
F.3d at 971; see Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir. 2007);
Reyes-Melendez v. INS, 342 F.3d 1001, 1007 (9th Cir. 2003).
3. We lack jurisdiction to consider the merits of Arriaga-Cruz’s
arguments pertaining to eligibility for relief. He made no timely application for the
relief he now seeks. Therefore, the applications for cancellation of removal,
asylum, withholding of removal, and CAT protection were not properly before the
1
Arriaga-Cruz filed no motion to reconsider. Also, as Respondent points out
in his brief, Arriaga-Cruz did not make a motion to reopen. See 8 U.S.C. §
1229a(c)(7)(C)(i); Puga v. Chertoff, 488 F.3d 812, 815–16 (9th Cir. 2007); see also
Liu v. Waters, 55 F.3d 421, 424 (9th Cir. 1995) (holding a petitioner must first
make a motion to reopen with the BIA to raise a claim of ineffective assistance of
counsel). Thus, we lack jurisdiction to consider any unexhausted claim. 8 U.S.C.
§ 1252(d)(1); see Barron v. Ashcroft, 358 F.3d 675, 678 (9th Cir. 2004).
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IJ or BIA. The only arguments properly raised before the BIA were whether the IJ
abused his discretion in deeming the applications for relief abandoned and whether
the IJ violated Arriaga-Cruz’s constitutional rights. Arriaga-Cruz failed to exhaust
his administrative remedies with respect to eligibility for any relief from removal,
which precludes our review. 8 U.S.C. § 1252(d)(1); see Honcharov v. Barr, 924
F.3d 1293, 1296 n.2 (9th Cir. 2019); Barron, 358 F.3d at 678.
PETITION FOR REVIEW DENIED IN PART and DISMISSED IN
PART.
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