Alejandro Guzman v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO GUZMAN, AKA Alejandro No. 19-72159
Deniz,
Agency No. A098-345-482
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2021**
San Francisco, California
Before: GOULD and BEA, Circuit Judges, and VITALIANO,*** District Judge.
Alejandro Guzman (“Guzman”) petitions for review the Board of
Immigration’s (“BIA”) summary dismissal of his application for asylum,
*
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 Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
withholding of removal under INA § 241(b)(3), and withholding of removal under
the Convention Against Torture. Because the parties are familiar with the facts
and procedural history of the case, we do not recite them here.
We review the BIA’s summary dismissal of an appeal for abuse of
discretion. Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). 8 C.F.R. §
1003.1(d)(2)(i) requires a petitioner provide the BIA with notice of the reason for
appeal “by setting out the reasons on the Notice of Appeal itself or by filing a
separate brief.” Nolasco-Amaya v. Garland, No. 20-70187, 2021 WL 4436186, at
*3 (9th Cir. Sept. 28, 2021) (quoting Casas-Chavez v. INS, 300 F.3d 1088, 1090
(9th Cir. 2002)). Guzman did not provide any reasons for his appeal on either his
Notice of Appeal or a supplemental brief. On this record, the BIA did not abuse its
discretion in summarily dismissing Guzman’s appeal. See, e.g., Garcia-Cortez v.
Ashcroft, 366 F.3d 749, 752 (9th Cir. 2004) (quoting Martinez–Zelaya v. INS, 841
F.2d 294, 296 (9th Cir.1988)) (“[I]t is well-established that the BIA may
summarily dismiss an alien’s appeal ‘if an alien submits no separate written brief
or statement to the BIA and inadequately informs the BIA of ‘what aspects of the
decision were allegedly incorrect and why.’”).
Similarly, the BIA did not abuse its discretion in denying Guzman’s
untimely request for an extension of time to file his brief. 8 C.F.R. § 1003.3(c)(1)
states that the BIA “may” extend the time for filing a brief and makes clear that
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“[n]othing in this paragraph (c)(1) shall be construed as creating a right to a
briefing extension for any party in any case.” Guzman mailed his request for an
extension of time to submit his brief twenty-six days after the BIA’s reasonable
deadline. The BIA acted within its discretion in denying this request.
Nor were Guzman’s due process rights violated. We review due process
challenges de novo. Zetino v. Holder, 622 F.3d 1007, 1101 (9th Cir. 2010). “A
petition for review will only be granted on due process grounds if ‘(1) the
proceeding was so fundamentally unfair that the alien was prevented from
reasonably presenting his case, and (2) the alien demonstrates prejudice, which
means that the outcome of the proceeding may have been affected by the alleged
violation.’” Id. at 1013 (quoting Ibarra–Flores v. Gonzales, 439 F.3d 614, 620–21
(9th Cir. 2006)). The BIA’s summary dismissal of Guzman’s appeal did not
violate his due process rights because he had the opportunity to reasonably present
his case: Guzman was warned that he needed to provide reasons for his appeal and
was given a reasonable amount of time to do so. Despite this, Guzman never
provided the BIA with any reasons for his appeal.
Guzman’s additional due process claims also fail. First, Guzman claims that
the Immigration Judge (“IJ”) erred by failing to request certified dispositions of his
alleged criminal violations and failing to analyze whether the alleged convictions
involved moral turpitude. Both of these claims relate to the IJ’s finding that
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Guzman was ineligible for post-conclusion voluntary relief. They cannot show
prejudice because the IJ denied Guzman post-conclusion voluntary departure on
two alternative grounds, only one of which involved a finding of moral turpitude.
Second, Guzman alleges that the I-213 admitted as an exhibit by the IJ contained
several factual inaccuracies. While true, this allegation does not show prejudice
because the factual inaccuracies were irrelevant to the IJ’s decision and the IJ’s
decision contained the correct factual information.
Guzman’s due process rights were not violated by the IJ failing to
adequately develop the record. In pro se cases, the IJ has a special duty to “fully
develop the record . . . by probing into relevant facts and by providing appropriate
guidance as to how the alien may prove his application for relief.” Agyeman v.
I.N.S., 296 F.3d 871, 884 (9th Cir. 2002). The IJ sufficiently developed the record
by, among other things, confirming Guzman’s application was correct, considering
numerous exhibits submitted by Guzman, questioning Guzman in depth about his
application, and affording Guzman an opportunity to add additional information or
emphasize a point. On this record, the proceedings were not so fundamentally
unfair that Guzman was prevented from reasonably presenting his case.
The BIA did not review the IJ’s underlying denial of relief, so we lack
jurisdiction to review the IJ’s decision on the merits. See Garcia-Cortez, 366 F.3d
at 752.
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PETITION FOR REVIEW DENIED.
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