Lazaro Velazquez-Dias v. Eric Holder, Jr.

Case: 13-60202 Document: 00512484512 Page: 1 Date Filed: 12/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60202
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 30, 2013
LAZARO VELAZQUEZ-DIAS,
Lyle W. Cayce
Clerk
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. A096 457 356
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Lazaro Velazquez-Dias, a native and citizen of Mexico, has filed a
petition for review of the Board of Immigration Appeals (BIA) decision
dismissing his appeal of the Immigration Judge’s (IJ) order pretermitting and
denying his application for cancellation of removal and designating removal to
Mexico. Velazquez-Dias argues that his motion for an extension of time
showed good cause for failing to comply with the time requirements set by the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60202 Document: 00512484512 Page: 2 Date Filed: 12/30/2013
No. 13-60202
IJ for filing his application for relief and supporting documents. Specifically,
he asserts that his motion informed the IJ that reasonable efforts were made
to retrieve documents relevant to his application and that he exercised due
diligence in filing the application EOIR-42B with the United States
Citizenship and Immigration Services. He further asserts that the record
shows that he established prima facie eligibility for cancellation of removal.
Under 8 C.F.R. § 1003.47(b)(5), (c) & (d), an alien’s failure to file the
necessary documentation to support his cancellation application and to provide
biometrics, all within the time allowed by the IJ’s order, constitutes
abandonment of the application. In such cases, the IJ may dismiss the
application unless the applicant demonstrates that his failure to file the
necessary documents was the result of good cause. 8 C.F.R. § 1003.47(c). The
decision whether to grant a motion to continue lies within the sound discretion
of the IJ. Witter v. INS, 113 F.3d 549, 555 (5th Cir. 1997).
We have jurisdiction to review the IJ’s implicit decision to deny
Velazquez-Dias’s motion for continuance. 1 See Ahmed v. Gonzales, 447 F.3d
433, 437 (5th Cir. 2006). “When, as here, the BIA affirms the immigration
judge and relies on the reasons set forth in the immigration judge’s decision,
this court reviews the decision of the immigration judge as well as the decision
of the BIA.” Id. We review both the IJ’s denial of a continuance and the BIA’s
denial of the appeal for abuse of discretion. Witter, 113 F.3d at 555.
Velazquez-Dias’s motion for an extension of time, filed on the date that
his application for cancellation of removal was due, did not provide the IJ with
1 Citing petitioner’s failure to timely file his application for cancellation of removal
and supporting documents, the IJ found that Velazquez-Dias had abandoned any claim for
relief and ordered him removed to Mexico. The IJ did not explicitly rule on Velazquez-Dias’s
motion for an extension of time but implicitly denied it through his removal order. The BIA
affirmed the IJ’s implicit denial of the motion for an extension (finding Velazquez-Dias failed
to show good cause), his subsequent denial of Velazquez-Dias’s application for cancellation of
removal, and his order removing Velazquez-Dias to Mexico.
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No. 13-60202
a reason for his failure to comply with the deadline. The motion merely said
that Velazquez-Dias exercised due diligence in filing the EOIR-42B application
for cancellation of removal with the United States Citizenship and
Immigration Services, though both the EOIR-42B and the IJ’s prior order
explicitly required the petitioner to file his EOIR-42B with the court. Nor did
the motion explain why the fee receipt was not submitted, except to say that
the application fee had only been paid on March 9, 2012. Velazquez-Dias could
have filed his cancellation application without supporting documents with the
IJ and prior to the BIA appeal, but failed to do so in both cases. In his brief
before this court, Velazquez-Dias does not present any argument explaining
why he was unable to timely file an application for cancellation of removal. His
arguments are conclusory and do not show good cause for failing to timely file
his application. His reliance on the test for good cause outlined in Matter of
Hashimi, 24 I&N Dec. 785, is misplaced, as that case considered a continuance
pending adjudication of a family-based visa petition. Moreover, petitioner’s
failure to file an application meant he could not establish his prima facie
eligibility for cancellation of removal. As Velazquez-Dias did not establish good
cause for failing to comply with the deadline, the IJ did not err in denying a
continuance, and the BIA did not err in dismissing Velazquez-Dias’s appeal.
See § 1003.47(c), (d).
His petition for review of this issue is DENIED.
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