Esteban Reyes v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTEBAN RENE REYES, No. 20-72405
Petitioner, Agency No. A213-082-631
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Esteban Rene Reyes, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision ordering him removed. Specifically, Reyes
challenges the IJ’s denial of his motion for a continuance. Our jurisdiction is
*
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).
governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
motion for continuance and review de novo claims of due process violations in
immigration proceedings. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th
Cir. 2008). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in concluding that Reyes failed to
show good cause to grant his third request for a continuance. See 8 C.F.R.
§ 1003.29; Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir. 1996) (no abuse of
discretion where multiple continuances had already been granted).
To the extent Reyes contends the IJ violated his right to due process at his
December 2017 hearing, we lack jurisdiction to consider the issue because Reyes
failed to raise it to the BIA. See Agyeman v. INS, 296 F.3d 871, 877 (9th Cir.
2002) (“[W]e may not entertain due process claims based on correctable
procedural errors unless the alien raised them below.”).
The BIA did not err in concluding the IJ did not violate Reyes’s right to due
process by proceeding in the absence of a waiver of counsel at his July 2018
hearing. See Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019) (concluding the IJ
did not violate the applicant’s right to counsel where the applicant was provided
“reasonable time to locate counsel”); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000) (requiring error to prevail on a due process claim).
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We reject as unsupported by the record Reyes’s contentions that the agency
otherwise erred in the handling of his case.
The temporary stay of removal remains in place until the issuance of the
mandate. The motion for a stay of removal is otherwise denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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