Wendy Yakarely Cruz-Herrera v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY YAKARELY CRUZ-HERRERA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-258
Agency No.
A201-400-703
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2023**
Before: CANBY, CALLAHAN, and OWENS, Circuit Judges.
Wendy Yakarely Cruz-Herrera, a native and citizen of Nicaragua, petitions
pro se for review of the Board of Immigration Appeals’ order dismissing her
appeal from an immigration judge’s (“IJ”) decision deeming her applications for
asylum, withholding of removal, and protection under the Convention Against
* 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).
FILED
SEP 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 23-258
Torture (“CAT”) abandoned. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion a decision to deem an application abandoned.
Gonzalez-Veliz v. Garland, 996 F.3d 942, 948 (9th Cir. 2021). We review de novo
claims of due process violations in immigration proceedings. Simeonov v.
Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the petition for review.
The agency did not abuse its discretion in finding Cruz-Herrera abandoned
her applications for asylum, withholding of removal, and CAT protection by
failing to complete the biometrics requirement before the deadline imposed by the
IJ. See 8 C.F.R. § 1208.10 (“Failure to comply with processing requirements for
biometrics … within the time allowed will result in dismissal of the application,
unless the applicant demonstrates that such failure was the result of good cause.”);
Gonzalez-Veliz, 996 F.3d at 948 (no abuse of discretion in finding application
abandoned for failure to provide timely biometrics).
Cruz-Herrera’s claims the agency violated due process by conducting her
hearing without counsel and not granting additional time to find new counsel fail
because she has not shown error where the record indicates she was represented by
counsel at the hearing and did not request a continuance. See Padilla-Martinez v.
Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a
petitioner must demonstrate both a violation of rights and prejudice.”).

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3 23-258
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.

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