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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10570
Non-Argument Calendar
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Agency No. A205-033-507
LUCIANO ANACLETO REYES REYES,
a.k.a. Rodolfo Garcia-Garcia,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(October 2, 2020)
Before WILLIAM PRYOR, Chief Judge, JORDAN and BRANCH, Circuit Judges.
PER CURIAM:
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Luciano Anacleto Reyes Reyes, a native and citizen of Guatemala, petitions
for review of a decision that affirmed his order of removal following the denial of
his application for cancellation of removal. 8 U.S.C. § 1229b(b)(1). Reyes
challenges the denial of his fourth request for a continuance. He also challenges the
ruling of the Board of Immigration Appeals that he was not deprived of due
process by being required to proceed with substitute counsel instead of his retained
counsel. We deny Reyes’s petition.
We apply two standards of review to Reyes’s petition. We review the denial
of a motion for a continuance for abuse of discretion, Chacku v. U.S. Att’y Gen.,
555 F.3d 1281, 1285 (11th Cir. 2008), under which our “review is limited to
determining whether . . . [there has been an exercise of administrative] discretion
in an arbitrary or capricious manner,” Zhang v. U.S. Att’y Gen.,
572 F.3d 1316,
1319 (11th Cir. 2009). We review de novo whether an alien is deprived of due
process by being required to proceed without his counsel of choice. See Lapaix v.
U.S. Att’y Gen.,
605 F.3d 1138, 1143 (11th Cir. 2010).
We cannot say that it was arbitrary and capricious to deny Reyes’s fourth
motion to continue. Reyes succeeded in postponing his removal proceedings for
several years, after which he offered no “good cause,” see 8 C.F.R. § 1003.29, to
justify another delay. After the Department of Homeland Security charged Reyes
for entering the United States illegally in 2012, see 8 U.S.C. § 1182(a)(6)(A)(1),
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his retained counsel Lorne Kelman and his associates had Reyes’s removal
proceedings continued to May 2016 to complete his sentence of probation for
driving while under the influence and later to April 2018 for his wife to litigate her
immigration proceeding. At Kelman’s request, the immigration judge scheduled
Reyes’s removal hearing for April 11, 2018, so Kelman could observe Passover
outside the United States. Despite the immigration judge’s warning that Reyes
would receive no further continuances absent “truly extraordinary circumstances,”
Kelman sought, without success, to continue the removal hearing until the summer
of 2018 on the ground he had a case set for trial on April 13, 2018. On April 11,
2018, substitute counsel appeared with Reyes solely to request another
continuance. The immigration judge did not abuse his discretion by refusing to
delay further the removal hearing when Kelman was available to represent Reyes.
We cannot say that the Board erred in ruling that Reyes was not denied due
process by being required to proceed without Kelman. Reyes had a right to be
represented by the counsel of his choice, but we cannot disturb the decision of the
Board unless Reyes proves that he was substantially prejudiced by counsel’s
absence. See Frech v. U.S. Att’y Gen.,
491 F.3d 1277, 1281 (11th Cir. 2007). To
prove substantial prejudice, Reyes must establish that, but for the absence of his
counsel of choice, the outcome of his removal proceeding would have been
different.
Lapaix, 605 F.3d at 1143. Reyes argues that, without Kelmar present, he
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“could not testify and explain whether . . . his child [continued to] suffer[]” from a
developmental delay first “experienced in 2010.” But Reyes could have asked to
testify even though his substitute counsel declined to present evidence. And Reyes
does not argue that his child’s condition was long-lasting or that his child would
suffer an exceptional and unusual hardship if he was removed to Guatemala.
Because Reyes fails to establish that Kelman’s presence might have changed the
immigration judge’s decision, Reyes cannot prove that the decision to proceed with
substitute counsel violated his right to due process.
We DENY Reyes’s petition for review.
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