PEATO TOMINIKO and IULIANA TOMINIKO v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEATO TOMINIKO and IULIANA
TOMINIKO,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-72870
Agency Nos. A097-843-033
A088-423-717
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Peato Tominiko and Iuliana Tominiko, natives and citizens of Samoa,
petition for review of an order of the Board of Immigration Appeals (“BIA”)
dismissing their appeal from a decision of an immigration judge (“IJ”) denying
their motion to continue their removal proceedings. Our jurisdiction is governed
FILED
MAY 21 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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by 8 U.S.C. § 1252. We review for abuse of discretion the agency’s denial of a
motion to continue. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.
2008) (per curiam). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion by denying petitioners’ motion to
continue so they could seek evidence of U.S. nationality, because petitioners did
not demonstrate good cause for a continuance. See Singh v. Holder, 638 F.3d
1264, 1274 (9th Cir. 2011). The agency had already granted petitioners an 11-
month continuance for this purpose; petitioners delayed approximately seven
months before seeking evidence of U.S. nationality; and petitioners, despite the
lengthy prior continuance, provided no evidence to support their claim to U.S.
nationality. See Matter of Hashmi, 24 I. & N. Dec. 785, 794 (BIA 2009) (“[A]
history of continuances . . . , coupled with other relevant factors, may support a
decision to move forward with the case.”), cited with approval by Malilia v.
Holder, 632 F.3d 598, 606 (9th Cir. 2011); see also Kashefi-Zihagh v. INS,
791 F.2d 708, 711 (9th Cir. 1986) (finding no abuse of discretion from the denial
of a continuance where the petitioner had “offered no reason why he was unable to
obtain th[e] evidence prior to his hearing”).
We lack jurisdiction over petitioners’ claim that the denial of a continuance
violated their due process rights, because petitioners failed to exhaust this claim
11-72870 2

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before the BIA. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
11-72870 3

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