Diego Castillo-Baltazar v. Eric Holder, Jr.

Case: 12-60815 Document: 00512319034 Page: 1 Date Filed: 07/24/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 24, 2013
No. 12-60815
Summary Calendar Lyle W. Cayce
Clerk
DIEGO CASTILLO-BALTAZAR,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 450 549
Before BARKSDALE, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Diego Castillo-Baltazar contests the Board of Immigration Appeals’ (BIA)
dismissing his appeal from the immigration judge’s ordering removal. He
contends the immigration judge erred by denying his request for a continuance
so he could seek deferred removal, subject to prosecutorial discretion, under
the Deferred Action for Childhood Arrivals (DACA) program, which favors
certain aliens who arrived in the United States as children.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 12-60815 Document: 00512319034 Page: 2 Date Filed: 07/24/2013
No. 12-60815
We review the BIA’s decision, as well as the immigration judge’s decision
to the extent it influenced the BIA. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997). Review is for abuse of discretion, and we affirm unless the decision is
“capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so aberrational that it is arbitrary rather than the result of any
perceptible rational approach”. Cabral v. Holder, 632 F.3d 886, 890 (5th Cir.
2011).
Contrary to Castillo’s assertions, the record plainly shows he never asked
the immigration judge for a continuance. After advising the immigration judge
that Castillo was seeking only prosecutorial discretion and being told that issue
was not before the court, Castillo’s counsel, when asked by the immigration
judge, “What do you seek from the court?”, replied, “No, Your Honor. We don’t
- - we won’t seek anything”. Contrary to the assertion made here by Castillo’s
counsel, who also represented Castillo by telephone before the immigration
judge, Castillo’s advising he was seeking prosecutorial discretion was not an
implied request for a continuance. Moreover, even if he had requested a
continuance, he would not have been entitled to one, without showing good
cause. See Bright v. INS, 837 F.2d 1330, 1332 (5th Cir. 1988). His speculative
bid for prosecutorial discretion could not have established good cause where he
did not show he had applied for deferred removal and did not specify the
duration of a possible continuance. E.g., Witter v. INS, 113 F.3d 549, 555-56
(5th Cir. 1997) (upholding denial of indefinite continuance pending state
criminal proceedings); see also Ramchandani v. Gonzales, 434 F.3d 337, 339-40
& n.2 (5th Cir. 2005) (speculation about possible relief is not good cause).
In addition, Castillo fails to show the denial of a continuance caused him
actual prejudice. See In re Sibrun, 18 I. & N. Dec. 354, 356-57 (BIA 1983). The
2
Case: 12-60815 Document: 00512319034 Page: 3 Date Filed: 07/24/2013
No. 12-60815
BIA stated, and Castillo does not dispute, that he may yet be eligible for relief
under the DACA program.
DENIED.
3