Sixto Manuel v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIXTO ARIOS MANUEL, No. 14-70045
Petitioner, Agency No. A046-512-173
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2019**
Honolulu, Hawaii
Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.
Petitioner Sixto Manuel (“Manuel”) seeks review of a Board of Immigration
Appeals’ (“BIA”) dismissal of his administrative appeal challenging an
Immigration Judge’s (“IJ”) decision denying him a fourth continuance and finding
*
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).
him removable as an aggravated felon. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
As an initial matter, we conclude that Manuel’s Petition for Review (“PFR”)
was timely. The only evidence presented suggests that the “technical difficulties”
were a result of a CM/ECF court system malfunction, rather than user error, and
the government has not produced any evidence to the contrary. Based on Manuel’s
uncontested statements, we conclude that our clerk’s office was rendered
inaccessible on the date the PFR was due, which extended Manuel’s filing deadline
to the next “accessible day that is not a Saturday, Sunday, or legal holiday.” Fed.
R. App. P. 26(a)(3)(A). Because Manuel properly filed the PFR on the next
accessible day, his filing was timely. In the future, however, counsel should also
file a contemporaneous motion and affidavit seeking confirmation of the late filing
and explaining what prevented the timely filing. 9th Cir. R. 25-5(c)(2) (formerly
9th Cir. R. 25-5(d)(2)).
The government’s argument that 8 U.S.C. § 1252(a)(2)(C) is a jurisdictional
bar is foreclosed by a post-briefing case. See Garcia v. Lynch, 798 F.3d 876, 881
(9th Cir. 2015) (holding jurisdiction exists to review “the denial of a procedural
motion, such as a motion for a continuance, that rests on a ground independent
from the conviction that triggers the statutory bar”). Under Garcia, we have
jurisdiction to review the denial of Manuel’s motion to continue.
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Reaching the merits, the agency neither abused its discretion nor violated
due process by denying Manuel’s motion for continuance. The decision to grant or
deny a continuance is within “the sound discretion of the judge and will not be
overturned except on a showing of clear abuse.” Sandoval-Luna v. Mukasey, 526
F.3d 1243, 1247 (9th Cir. 2008) (quotations omitted). The outcome of Manuel’s
state court Rule 40 motion was a speculative collateral attack and did not
necessitate that the IJ or BIA wait any longer until the state court rendered a
decision. See Garcia, 798 F.3d at 881; Singh v. Holder, 638 F.3d 1264, 1274 (9th
Cir. 2011); 8 C.F.R. § 1003.29. The IJ had also previously granted him three
continuances: one for the attorney to become familiar with the case, and two to
seek post-conviction relief. Additionally, the IJ declined to consider the
allegations in the Notice to Appear that corresponded to the criminal counts with
the disputed date discrepancies, instead relying solely on the other two counts of
conviction as the basis for finding Manuel removable.
The agency did not err in denying Manuel’s motion to continue. And
because there was no error or violation of constitutional rights, Manuel’s due
process claim likewise fails. See Padilla-Martinez v. Holder, 770 F.3d 825, 830
(9th Cir. 2014) (“To prevail on a due-process claim, a petitioner must demonstrate
both a violation of rights and prejudice.”).
PETITION FOR REVIEW DENIED.
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