Anatolio Aragon v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANATOLIO BARCO ARAGON, No. 19-71147
Petitioner, Agency No. A214-276-171
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 5, 2020**
Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.
Anatolio Barco Aragon, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his request for a continuance. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
agency’s denial of a continuance and decision to deem an application waived for
failure to adhere to an imposed deadline. Cui v. Mukasey, 538 F.3d 1289, 1290
(9th Cir. 2008) (continuance); Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013)
(deeming application waived). We review de novo due process claims. Lin v.
Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). We deny the petition for review.
The agency did not abuse its discretion or violate due process in denying
Aragon’s motion to continue and deeming his application for relief waived for
failure to adhere to the stated filing deadline. The IJ had previously notified
Aragon and his counsel of the filing deadline and consequences of missing it, the
agency considered and rejected Aragon’s reason for the continuance, and Aragon
was represented by counsel, was provided an opportunity to file an application for
relief, and has not shown that the timing of his receipt of his Freedom of
Information Act record prevented him from filing his application. See Taggar, 736
F.3d at 889 (agency did not abuse discretion in deeming application waived for
failing to adhere to deadline imposed by the IJ); Cui, 538 F.3d at 1292(reasonableness of petitioner’s conduct a factor to consider when reviewing the
denial of a continuance); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926-27
(9th Cir. 2007) (“Where an alien is given a full and fair opportunity to be
represented by counsel, prepare an application for . . . relief, and to present
testimony and other evidence in support of the application, he or she has been
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provided with due process.”).
Finally, Aragon’s contention that the IJ failed to advise him of his apparent
eligibility for cancellation of removal is unsupported where he had already asserted
his intention to seek that form of relief.
Aragon’s motion for a stay of removal is denied as moot.
PETITION FOR REVIEW DENIED.
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