Aurelia Uriostegui Guadarrama v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 10 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURELIA URIOSTEGUI No. 18-72963
GUADARRAMA; et al.,
Agency Nos. A209-128-796
Petitioners, A209-128-797
A209-128-798
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2020**
San Francisco, California
Before: LUCERO,*** W. FLETCHER, and IKUTA, Circuit Judges.
Petitioners Aurelia Uriostegui Guadarrama and her two children seek review
of a Board of Immigration Appeals (BIA) decision upholding the Immigration
*
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 Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Judge’s (IJ) removal order. They argue that the BIA abused its discretion by
affirming the IJ’s decision to deem their application for relief from removal
abandoned and to deny their fourth request for a continuance. Petitioners also
claim that the denial of their continuance request violated their due process rights.
Petitioners’ brief does not explicitly challenge the BIA’s affirmance of the
IJ’s decision to deem their application for relief from removal abandoned. This
argument is therefore waived. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065
(9th Cir. 2020). Even if Petitioners had raised the argument, the BIA did not abuse
its discretion in finding the IJ acted properly when it deemed their asylum
application abandoned. Regulations permit the IJ to set “time limits for the filing
of applications and related documents,” and “[i]f an application or document is not
filed within the time set by the [IJ], the opportunity to file that application or
document shall be deemed waived.” 8 C.F.R. § 1003.31(c).
At a hearing on July 26, 2017, the IJ instructed Uriostegui Guadarrama to
complete the asylum application and bring it with her to her October 11, 2017
hearing. Uriostegui Guadarrama confirmed that she understood this instruction,
but she failed to bring the completed application as directed. The BIA did not
abuse its discretion in holding that the IJ properly deemed the application
abandoned. See Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013).
2
Nor did the BIA abuse its discretion in holding that Petitioners did not
demonstrate good cause for a fourth continuance to obtain counsel or complete an
asylum application. “The decision to grant or deny the continuance is within the
sound discretion of the judge and will not be overturned except on a showing of
clear abuse.” Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015) (quotation
omitted). There was no clear abuse in this case. The IJ granted Petitioners three
continuances spanning nearly eleven months to allow Petitioners to obtain counsel.
The IJ also gave Uriostegui Guadarrama nearly three months to file an asylum
application. The IJ cautioned Uriostegui Guadarrama that further extensions
would not be granted. The BIA did not abuse its discretion in concluding, based
on these facts, that Petitioners had sufficient opportunity to obtain counsel.
Lastly, Petitioners “must show error and substantial prejudice” to prevail on
their due process claim. Larita-Martinez v. I.N.S., 220 F.3d 1092, 1095 (9th Cir.
2000) (quotation omitted). The “error” Petitioners assert is the denial of their
request for a fourth continuance. Because we hold this decision was not an abuse
of discretion, it is also not a fundamental error that may sustain a due process
claim.
PETITION DENIED.
3