Gonzalez-Veliz v. Garland, No. 19-72090 (9th Cir. 2021)
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The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's order determining that her application for asylum, withholding of removal, and Convention Against Torture (CAT) was abandoned, under 8 C.F.R. 1003.47(c). The IJ's decision was based on petitioner's failure to submit required biometrics or establish good cause for her failure to do so.
The panel concluded that the IJ did not abuse its discretion in deeming petitioner's application as abandoned where the IJ twice warned petitioner if she did not provide her biometrics before the next hearing her application would be deemed abandoned, and petitioner did not follow the instructions. Furthermore, petitioner failed to request a continuance before her merits hearing to complete her biometrics and her counsel failed to show good cause for requesting such a continuance. The panel also concluded that the IJ did not abuse its discretion denying petitioner's final request for more time to obtain an attorney. Because petitioner's application for relief was properly found abandoned, the BIA correctly deemed moot any challenge to the denial of petitioner's previous request for a continuance to obtain evidentiary support for her application. Finally, petitioner was not deprived of a neutral arbiter.
Court Description: Immigration. The panel denied Isabel Gonzalez-Veliz’s petition for review of a decision of the Board of Immigration Appeals dismissing her appeal from an order of an Immigration Judge deeming her application for asylum, withholding of removal, and Convention Against Torture abandoned, under 8 C.F.R. § 1003.47(c), based on her failure to submit required biometrics or establish good cause for her failure to do so. The panel held that there was no abuse of discretion in the IJ’s decision to deem Gonzalez-Veliz’s application abandoned where the IJ instructed Gonzalez-Veliz, whose counsel was present, to complete biometrics requirements before her merits hearing, ensured that she had the relevant instructions, and warned her that her failure to comply could result in her application being deemed abandoned. The panel rejected Gonzalez-Veliz’s argument that her duty to comply with biometrics requirements ended when she submitted the required application to the service center. The panel explained that the clear text of 8 C.F.R. § 1003.47(c) places the burden on the applicant to comply with biometrics requirements in conformity with the instructions to the application, which in turn direct the applicant to call a particular telephone number if she does not receive the requisite biometric receipt notices after her submission, which Gonzalez-Veliz failed to do. Because she never requested a continuance to complete the biometrics GONZALEZ-VELIZ V. GARLAND 3 requirement, and failed to follow up after she did not receive notices of receipt of her application, the panel concluded that Gonzalez-Veliz failed to show good cause for failing to meet the requirement. The panel also concluded that the IJ did not err in failing to question the government about whether it sent Gonzalez-Veliz the biometrics submission receipt notices, as the burden was on Gonzalez-Veliz to follow up when she failed to receive the notices. The panel held that there was no abuse of discretion in the IJ’s denial of Gonzalez-Veliz’s earlier motion for a continuance to obtain an attorney where she knew of her right to hire an attorney, was given a two-month continuance to obtain counsel, was never detained, knew that the IJ would proceed with the next hearing even if she was unrepresented unless she showed good cause, did not try to contact an attorney before seeking the continuance, and was able to retain counsel months before her merits hearing. The panel concluded that because Gonzalez-Veliz’s application for relief was properly found abandoned, the Board correctly deemed moot any challenge to the IJ’s denial of Gonzalez-Veliz’s request for a continuance to obtain evidentiary support for her application. The panel rejected Gonzalez-Veliz’s contention that she was deprived of a neutral arbiter because, even assuming that the IJ was “rude and harsh,” Gonzalez-Veliz failed to show that the IJ’s conduct affected the outcome of proceedings. 4 GONZALEZ-VELIZ V. GARLAND
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