Nieto-Gonzalez v. Garland

19-4367 Nieto-Gonzalez v. Garland BIA Merriman, IJ A201 718 271 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 16th day of March, two thousand twenty-three. — 4 — 5 PRESENT: 6 REENA RAGGI, 7 RICHARD J. SULLIVAN, 8 WILLIAM J. NARDINI, 9 Circuit Judges. 10 _____________________________________ — 11 — 12 ELVIS ALEXANDER NIETO-GONZALEZ, 13 Petitioner, — 14 — 15 v. 19-4367 16 NAC 17 MERRICK B. GARLAND, UNITED STATES 18 ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ 1 FOR PETITIONER: Robert F. Graziano, Buffalo, NY. — 2 — 3 FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant 4 Attorney General; Derek C. Julius , Assistant 5 Director; Enitan O. Otunla, Trial Attorney, 6 Office of Immigration Litigation, United States 7 Department of Justice, Washington, DC. 8 UPON DUE CONSIDERATION of this petition for review of a Board of 9 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, 10 AND DECREED that the petition for review is DENIED. 11 Petitioner Elvis Alexander Nieto-Gonzalez, a native and citizen of El 12 Salvador, seeks review of a decision of the BIA affirming an order of an 13 Immigration Judge (“IJ”) finding that his application for asylum was abandoned 14 and ordering removal. In re Elvis Alexander Nieto-Gonzalez, No. A201 718 271 15 (B.I.A. Dec. 4, 2019), aff’g No. A201 718 271 (Immigr. Ct. Batavia June 28, 2019). 16 Nieto-Gonzalez asserts that the agency’s decision was erroneous and violated his 17 constitutional right to due process. We assume the parties’ familiarity with the 18 underlying facts, procedural history, and issues on appeal. 19 We review “an IJ’s decision to establish and enforce filing deadlines for . . . 20 abuse of discretion,” Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008), and we 21 review constitutional claims de novo, Dale v. Barr, 967 F.3d 133 , 138 (2d Cir. 2020). — 2 — 1 “An IJ’s decision constitutes error or an abuse of discretion when (1) his decision 2 rests on an error of law (such as application of the wrong legal principle) or a 3 clearly erroneous factual finding or (2) his decision . . . cannot be located within 4 the range of permissible decisions.” Dedji, 525 F.3d at 191–92 (internal quotation 5 marks omitted). “To establish a violation of due process, an alien must show that 6 []he was denied a full and fair opportunity to present h[is] claims or that the IJ or 7 BIA otherwise deprived h[im] of fundamental fairness.” Burger v. Gonzales, 498 8 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks omitted). 9 The record does not reflect that the IJ abused her discretion in finding that 10 Nieto-Gonzalez abandoned his asylum application. “[A]n IJ has broad discretion 11 to set and extend filing deadlines,” Dedji, 525 F.3d at 191 , and when “an application 12 or document is not filed within the time set by the [IJ], the opportunity to file that 13 application or document shall be deemed waived,” 8 C.F.R. § 1003.31 (h). 14 Nieto-Gonzalez was aware of the deadline and was warned twice that his 15 application would be deemed abandoned if he failed to timely file it, yet he did 16 not timely file an application or ask for an extension. Accordingly, the IJ did not 17 abuse her discretion in deeming his application abandoned. Id. — 3 — 1 Nieto-Gonzalez also fails to establish that the IJ deprived him of due process 2 given that he had an opportunity to apply for relief but failed to do so or to request 3 additional time prior to the deadline. See Burger, 498 F.3d at 134. He argues that 4 due process required the IJ to hold a hearing before deeming his application 5 abandoned and ordering him removed, but he cites no authority requiring such a 6 hearing and the Immigration Court Practice Manual does not include such a 7 requirement. See U.S. Dep’t of Just., Immigr. Ct. Prac. Manual §§ 3.1(b) 8 (describing requirements for the timing of submissions); 3.1(d)(ii) (listing 9 consequences for untimely filings and stating that IJ “retains the authority to 10 determine how to treat an untimely filing”). Further, even if Nieto-Gonzalez had 11 been afforded a hearing, his later explanations for his failure to timely file did not 12 establish good cause, since he chose not to hire an attorney to complete his 13 application even though the IJ had given him a list of legal service providers and 14 despite having hired an attorney to represent him in connection with his credible 15 fear interview and bond proceedings. Cf. Dedji, 525 F.3d at 192 (petitioner had 16 good cause for delay in filing when counsel submitted letter explaining failure was 17 due to a fire at her office and that petitioner had submitted documents to her in 18 timely manner). — 4 — 1 Nieto-Gonzalez also argues that the IJ violated his due process rights by 2 failing to advise him of the availability of voluntary departure. But we will not 3 consider this argument because he did not exhaust that issue before the BIA. See 4 Lin Zhong v. U.S. Dep't of Just., 480 F.3d 104 , 118–23 (2d Cir. 2007) (holding that 5 petitioner generally must exhaust all issues before the agency); Arango-Aradondo v. 6 INS, 13 F.3d 610, 614 (2d Cir. 1994) (requiring exhaustion of constitutional claim 7 (ineffective assistance of counsel) because it “involve[d] procedural errors 8 correctable by the administrative tribunal” (internal quotation marks omitted)). 9 For the foregoing reasons, the petition for review is DENIED. All pending 10 motions and applications are DENIED and stays VACATED. 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court — 5 —