Benito Vargas Moreno v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENITO VARGAS MORENO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70272
Agency No. A213-204-069
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2022**
Pasadena, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and BLOCK,*** District
Judge.
FILED
JAN 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.

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Benito Vargas Moreno (Petitioner) is a native and citizen of Mexico. He
seeks review of an order from the Board of Immigration Appeals (BIA) dismissing
his appeal of the denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252 and we DENY the petition.
We review for abuse of discretion the determination that an application for
relief was abandoned and the denial of a continuance. See Taggar v. Holder, 736
F.3d 886, 889 (9th Cir. 2013).
The BIA committed no abuse of discretion in affirming the determination by
the Immigration Judge (IJ) that Petitioner’s application for relief was abandoned
when he failed to file it before the deadline set by the IJ. See 8 C.F.R. § 1003.31(c)
(“[T]he immigration judge may set and extend time limits for the filing of
applications . . . If an application . . . is not filed within the time set by the
immigration judge, the opportunity to file that application . . . shall be deemed
waived.”)
During a hearing on February 19, 2020, the IJ instructed Petitioner that he
would be ordered removed unless he completed his application before the date of
his next hearing on March 17, 2020. Due to the coronavirus pandemic, the March
hearing was postponed until June 23, 2020, giving Petitioner an additional three
2

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months to complete his application. Despite this additional time, Petitioner failed
to complete his application, and he was ordered removed. The BIA did not abuse
its discretion. See Taggar, 736 F.3d at 890.1
The denial of a further continuance to find an attorney and complete an
application was within the agency’s discretion, because Petitioner failed to
demonstrate good cause for the requested continuance. See 8 C.F.R. § 1003.29
(“The immigration judge may grant a motion for continuance for good cause
shown . . .”). At Petitioner’s first hearing (on February 19, 2020), he informed the
IJ that he was not planning to retain counsel for his deportation case and wanted to
represent himself. He also assured the court that he would be able to have his
application completed before his next hearing on March 17, 2020. Four months
later (on June 23, 2020), Petitioner had changed his mind about retaining counsel
and asked for a continuance to permit him to find counsel and complete his
application. He contended that the coronavirus pandemic–which led to the
postponement of his second hearing thereby giving him an additional three months
to find an attorney and complete his application–warranted an additional
1 Because Petitioner’s application for asylum, withholding of removal, and
CAT relief were deemed abandoned, we do not address the merits of those
requests. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (observing
that we are not required to address “issues the decision of which is unnecessary to
the results”) (quoting INS v. Bagamasbad, 429 U.S. 24, 25 (1976)).
3

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continuance. At the hearing on June 23, 2020, Petitioner did not say what, if
anything, he had done during the four months to retain counsel, and did not discuss
any specific obstacles he had encountered. After previously assuring the court that
he could complete his application in one month, Petitioner failed to do so in the
four months provided, and failed to show good cause for his inability to do so. See
Arrey v. Barr, 916 F.3d 1149, 1153, 1158 (9th Cir. 2019) (concluding that four
months was a “reasonable time to locate counsel”).
PETITION DENIED.
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