Douglas Ferman v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS GONZALO FERMAN, No. 16-70996
Petitioner, Agency No. A095-011-945
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Douglas Gonzalo Ferman, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision deeming his applications for relief
abandoned for failure to complete biometrics. Our jurisdiction is governed by 8
*
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).
U.S.C. § 1252. We review for abuse of discretion the agency’s decision to decline
a further continuance. Cui v. Mukasey, 538 F.3d 1289, 1290 (9th Cir. 2008). We
deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in declining to grant Ferman a
further continuance to allow him to submit his fingerprints for biometric analysis,
where the IJ informed him orally of the deadline for being fingerprinted and of the
consequences of failure to meet the deadline, but he failed to comply or present
good cause for his failure to comply. See 8 C.F.R. § 1003.47(c) (“Failure to file
necessary documentation and comply with the requirements to provide biometrics
… within the time allowed by the immigration judge’s order, constitutes
abandonment of the application and the immigration judge may enter an
appropriate order dismissing the application unless the applicant demonstrates that
such failure was the result of good cause.”); cf. Cui, 538 F.3d at 1293-95 (requiring
a continuance where the alien had no notice of the requirement).
We lack jurisdiction to consider Ferman’s contention regarding his prior
attorney’s conduct before the BIA. See Ontiveros-Lopez v. INS, 213 F.3d 1121,
1124 (9th Cir. 2000) (“We . . . require an alien who argues ineffective assistance of
counsel to exhaust his administrative remedies by first presenting the issue to the
BIA.”); Liu v. Waters, 55 F.3d 421, 424 (9th Cir. 2000) (“A petitioner must make a
motion for the BIA to reopen before we will hold that he has exhausted his
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[ineffective assistance] claims.”).
We lack jurisdiction to consider Ferman’s unexhausted contentions
regarding voluntary departure, the IJ’s alleged bias, and his contentions that he was
denied due process. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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WATFORD, Circuit Judge, Dissenting:
I would grant the petition.
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