Antonio Xeche-Ajcac v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO RAMIRO XECHE-AJCAC, No. 19-72072
Petitioner, Agency No. A206-262-882
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 26, 2020**
Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.
Antonio Ramiro Xeche-Ajcac, a native and citizen of Guatemala, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) decision denying his motion for a
continuance. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a continuance and review de novo questions of
*
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).
law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny in part and
dismiss in part the petition for review.
The agency did not abuse its discretion in denying Xeche-Ajcac’s motion for
a continuance to obtain a passport, where he made no attempt to obtain a passport
in the nine months prior to his voluntary departure eligibility hearing. See id. at
1012 (listing factors the court considers when reviewing the denial of a
continuance, including the reasonableness of the petitioner’s conduct); 8 C.F.R.
§ 1240.26(c)(2) (requiring a passport or other travel documents for voluntary
departure).
We lack jurisdiction to review Xeche-Ajcac’s unexhausted due process
contentions that the IJ failed to provide a Tz’utujil interpreter and failed to explain
voluntary departure to him. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004) (requiring exhaustion for procedural due process claims).
To the extent Xeche-Ajcac challenges the IJ’s denial of asylum and related
relief, this petition is not timely as to that claim. See 8 U.S.C. § 1252(b)(1) (a
petition for review must be filed within 30 days of a final order of removal); Rizo
v. Lynch, 810 F.3d 688, 691 (9th Cir. 2016) (“a remand by the BIA to an IJ solely
to consider voluntary departure does not affect the finality of the BIA’s decision
for purposes of our review” (internal quotation marks and citation omitted)).
Xeche-Ajcac’s contention that the immigration court lacked jurisdiction over
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his proceedings because his notice to appear lacked a time and date for his initial
hearing is foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir.
2019) (notice to appear need not include time and date of hearing to vest
jurisdiction in the immigration court).
As stated in the court’s September 30, 2019 order, the temporary stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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