Yanet Prado-Bacillo v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION DEC 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANET PRADO-BACILLO, AKA Yanet No. 13-70951
Bacillo Prado,
Agency No. A059-926-129
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Yanet Prado-Bacillo, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying her motion for remand
and dismissing her appeal from an immigration judge’s (“IJ”) decision denying her
request for a continuance and entering an order of removal. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252. We review for abuse of discretion both the denial of a
motion for a continuance, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th
Cir. 2008), and the denial of a motion to remand, Movsisian v. Ashcroft, 395 F.3d
1095, 1097-98 (9th Cir. 2005). We review de novo constitutional claims.
Sandoval-Luna, 526 F.3d 1246. We deny the petition for review.
Prado-Bacillo sought a continuance in order to marry her United States
citizen fiancé and apply for adjustment of status, but Prado-Bacillo’s fiancé is now
deceased. Accordingly, Prado-Bacillo’s challenges to the agency’s denial of a
continuance to pursue adjustment of status are moot. See Pedroza-Padilla v.
Gonzales, 486 F.3d 1362, 1364 n.2 (9th Cir. 2007); see also United States v.
Strong, 489 F.3d 1055, 1059 (9th Cir. 2007) (“An appeal is moot when, by virtue
of an intervening event, a court of appeals cannot grant any effectual relief
whatever in favor of the appellant.” (citation and internal quotation marks
omitted)).
Contrary to Prado-Bacillo’s contention, her claim that she is now eligible for
a U visa or prosecutorial discretion did not render the IJ’s denial of a continuance
an abuse of discretion or due process violation, because Prado-Bacillo did not
assert to the IJ that she was eligible for such relief. See Sandoval-Luna, 526 F.3d
at 1247 (no abuse of discretion by denying a motion for a continuance where the
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relief sought was not immediately available to petitioner); Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must
show error and prejudice).
To the extent Prado-Bacillo challenges the BIA’s denial of a remand, the
BIA did not abuse its discretion or violate due process in declining to remand to
the IJ to allow Prado-Bacillo to apply for U visa relief or prosecutorial discretion,
because Prado-Bacillo submitted no evidence to establish prima facie eligibility for
such relief. See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (“Aliens
who seek to remand or reopen proceedings to pursue relief bear a heavy burden of
proving that, if proceedings were reopened, the new evidence would likely change
the result in the case.” (citation and internal quotation marks omitted)); Matter of
Sanchez Sosa, 25 I. & N. Dec. 807, 812-16 (BIA 2012) (discussing how a
petitioner may establish prima facie eligibility for a U visa such that a continuance
or remand might be warranted); Lata, 204 F.3d at 1246.
PETITION FOR REVIEW DENIED.
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