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    Rauda-Castillo v. Lynch, 10th Cir. (2015)

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    This order summarizes a case in which two Salvadoran citizens, a mother and daughter, petitioned for review of the Board of Immigration Appeals' (BIA) dismissal of their appeal from the denial of their applications for asylum, restriction on removal, and relief under the Convention Against Torture. The court granted the petitioners' request to proceed in forma pauperis but denied in part and dismissed in part their petition for review. Specifically, the court found no abuse of discretion in the denial of the petitioners' request for another continuance, and that the BIA correctly determined it lacked jurisdiction to direct the Department of Homeland Security to exercise prosecutorial discretion.

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    Rauda-Castillo v. Lynch, 10th Cir. (2015)

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    This order summarizes a case in which two Salvadoran citizens, a mother and daughter, petitioned for review of the Board of Immigration Appeals' (BIA) dismissal of their appeal from the denial of their applications for asylum, restriction on removal, and relief under the Convention Against Torture. The court granted the petitioners' request to proceed in forma pauperis but denied in part and dismissed in part their petition for review. Specifically, the court found no abuse of discretion in the denial of the petitioners' request for another continuance, and that the BIA correctly determined it lacked jurisdiction to direct the Department of Homeland Security to exercise prosecutorial discretion.

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    Filed: 2015-10-13 Precedential Status: Non-Precedential Docket: 14-9606

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    This order summarizes a case in which two Salvadoran citizens, a mother and daughter, petitioned for review of the Board of Immigration Appeals' (BIA) dismissal of their appeal from the denial of their applications for asylum, restriction on removal, and relief under the Convention Against Torture. The court granted the petitioners' request to proceed in forma pauperis but denied in part and dismissed in part their petition for review. Specifically, the court found no abuse of discretion in the denial of the petitioners' request for another continuance, and that the BIA correctly determined it lacked jurisdiction to direct the Department of Homeland Security to exercise prosecutorial discretion.

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    27 views7 pages

    Rauda-Castillo v. Lynch, 10th Cir. (2015)

    Uploaded by

    Scribd Government Docs
    This order summarizes a case in which two Salvadoran citizens, a mother and daughter, petitioned for review of the Board of Immigration Appeals' (BIA) dismissal of their appeal from the denial of their applications for asylum, restriction on removal, and relief under the Convention Against Torture. The court granted the petitioners' request to proceed in forma pauperis but denied in part and dismissed in part their petition for review. Specifically, the court found no abuse of discretion in the denial of the petitioners' request for another continuance, and that the BIA correctly determined it lacked jurisdiction to direct the Department of Homeland Security to exercise prosecutorial discretion.

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    of 7

    UNITED STATES COURT OF APPEALS

    FOR THE TENTH CIRCUIT


    _________________________________
    MILAGRO DE JESUS RAUDACASTILLO; YOHANNA ESTEPHANIE
    RAMOS-RAUDA,

    FILED
    United States Court of Appeals
    Tenth Circuit

    October 13, 2015


    Elisabeth A. Shumaker
    Clerk of Court

    Petitioners,
    v.

    Nos. 14-9606 & 15-9507


    (Petition for Review)

    LORETTA E. LYNCH, United States


    Attorney General,
    Respondent.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.
    _________________________________
    Pro se petitioners, Milagro De Jesus Rauda-Castillo and Yohanna Estephanie
    Ramos-Rauda, mother and daughter, are citizens of El Salvador. They seek review of
    the Board of Immigration Appeals (BIA) order dismissing their appeal from the

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. It may be cited, however, for its persuasive value consistent with
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

    denial of their applications for asylum, restriction on removal,1 and relief under the
    Convention Against Torture (CAT). They also seek leave to proceed on appeal in
    forma pauperis (IFP). We grant the IFP request and deny the petition in part and
    dismiss in part for lack of jurisdiction.2
    I.
    Petitioners entered the United States on November 6, 2006. They were
    promptly issued Notices to Appear in Texas alleging they were removable as aliens
    present without being admitted or paroled. Represented by counsel, petitioners
    conceded removability and applied for asylum, restriction on removal, and relief
    under the CAT. Ms. Ramos-Rauda sought derivative relief through her mother,
    Ms. Rauda-Castillo. Petitioners requested a change of venue from San Antonio,
    Texas, to Los Angeles, California, which was granted on January 24, 2007. At
    petitioners request, venue was again moved to Salt Lake City, Utah, on November 3,
    2009.
    On January 7, 2010, represented by new counsel, petitioners requested and
    received a continuance until February 11, 2010. Additional hearings were set and

    Restriction on removal was referred to as withholding of removal before


    enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of
    1996 (IIRIRA). Although the BIA and the respondent refer to withholding of
    removal, we use the term restriction on removal because this claim was filed after
    IIRIRAs effective date. See Neri-Garcia v. Holder, 696 F.3d 1003, 1006 n.1
    (10th Cir. 2012).
    2

    Petitioners also filed a petition for review in the Ninth Circuit, which was
    transferred to this court and consolidated with the petition filed here.
    2

    continued for July 27, 2010, September 20, 2011, and October 6, 2011. Although
    petitioners sought a continuance of the hearing scheduled for May 17, 2012, the
    immigration judge (IJ) denied a continuance, noting that the case had been pending
    for several years and petitioners had been warned that the case would proceed on the
    May 17 hearing date.
    At the May 17 hearing, petitioners appeared pro se, and Ms. Rauda-Castillo
    testified. The IJ denied relief. Petitioners appealed to the BIA, arguing, as relevant
    here, that the IJ should have granted them an additional continuance so they could be
    represented by an attorney and that the case should be remanded to the Department of
    Homeland Security (DHS) for the DHS to exercise prosecutorial discretion. The BIA
    dismissed the appeal.
    Petitioners appeal to this court, renewing their arguments that they should have
    been granted another continuance and the BIA should have remanded their case to the
    DHS. They have waived their argument that another change of venue should have
    been granted, as well as their claims for asylum, restriction on removal, and CAT
    protection, because they did not present these claims in their appellate brief.
    See Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1209-10 (10th Cir. 2006)
    (stating issues not supported in the opening brief by argument, legal authority, and
    record citations are waived).
    II.
    The BIA issued a single-member decision affirming the IJs order. Thus,
    although we will not affirm on grounds raised in the IJ decision unless they are relied
    3

    upon by the BIA, we are not precluded from consulting the IJs more complete
    explanation of those same grounds. Maatougui v. Holder, 738 F.3d 1230, 1237 n.2
    (10th Cir. 2013) (brackets, ellipsis, and internal quotation marks omitted). We
    construe petitioners pro se filings liberally. Garrett v. Selby Connor Maddux &
    Janer, 425 F.3d 836, 840 (10th Cir. 2005).
    We review the decision to deny a continuance for an abuse of discretion.
    Luevano v. Holder, 660 F.3d 1207, 1213 (10th Cir. 2011) (ellipsis and internal
    quotation marks omitted); see also id. (Because an IJs discretion to deny a request
    for a continuance arises from a regulation, 8 C.F.R. 1003.29, we possess
    jurisdiction to consider the denial of a motion for continuance . . . .) (brackets
    omitted). We will grant review on this ground only if a continuance was denied
    without a rational explanation, inexplicably departed from established policies, or
    rested on an impermissible basis. Id. (internal quotation marks omitted).
    Petitioners argue that they should have been granted a continuance so they
    could obtain counsel, and the fact that they had engaged three different lawyers in the
    past weighed in favor of an additional continuance. As noted, petitioners had
    requested and received numerous continuances. They were warned that the hearing
    set for May 17, 2012, would proceed. As petitioners acknowledge, their case had
    been pending for several years. Under these circumstances, we find no abuse of
    discretion in denying a further continuance. Therefore, we deny review on this
    ground.

    Petitioners also assert error in the BIAs refusal to close the case
    administratively to allow the DHS to exercise prosecutorial discretion. The BIA held
    that it did not have jurisdiction to instruct the DHS to exercise prosecutorial
    discretion.3 We review this legal determination de novo, Dallakoti v. Holder,
    619 F.3d 1264, 1267 (10th Cir. 2010) (We review the BIAs legal determinations
    de novo . . . .), and agree that the agency lacked jurisdiction to direct the DHS to
    exercise prosecutorial discretion, see Cortez-Felipe v. INS, 245 F.3d 1054, 1057
    (9th Cir. 2001) (holding that the IJ and BIA lack authority to review discretionary
    decisions regarding when and whether to initiate removal proceedings); see also
    Matter of Bahta, 22 I. & N. Dec. 1381, 1391-92 (BIA 2000) (stating BIA lacks
    jurisdiction over the Immigration and Naturalization Services (INS) exercise of
    prosecutorial discretion).4 Accordingly, the BIA correctly determined it lacked
    jurisdiction to direct the DHS to exercise prosecutorial discretion.
    To the extent petitioners request this court to direct the BIA to close the case
    administratively, doing so would be meaningless since the BIAs order dismissing the
    appeal is a final order. See Batubara v. Holder, 733 F.3d 1040, 1042 (10th Cir.
    2013) (holding the BIAs decision upholding the IJs finding of removability . . .
    3

    The BIA stated that and that petitioners were free to apply directly to the
    DHS for such relief.
    4

    The Homeland Security Act of 2002 transferred authority to commence


    removal proceedings from the [INS] to the Secretary of DHS. Ali v. Mukasey,
    524 F.3d 145, 150 (2d Cir. 2008). Therefore, references to the INS apply to the
    DHS.

    was the final order). The administrative closing of a case does not result in a final
    order. It is merely an administrative convenience which allows the removal of cases
    from the calendar in appropriate situations. In re Gutierrez-Lopez, 21 I. & N. Dec.
    479, 480 (BIA 1996) (internal quotation marks omitted), overruled on other grounds
    by Matter of Avetisyan, 25 I. & N. Dec. 688, 690 (BIA 2012). Petitioners also
    apparently ask this court to direct the DHS to engage in mediation with them, which
    is in essence a request to order the DHS to exercise prosecutorial discretion. But the
    DHS has sole authority to exercise prosecutorial discretion in immigration cases and
    we lack jurisdiction over those decisions. See 8 U.S.C. 1252(g); Reno v.
    American-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 n.9 (1999)
    (Section 1252(g) was directed against a particular evil: attempts to impose judicial
    constraints upon prosecutorial discretion.); Veloz-Luvevano v. Lynch, __ F.3d __,
    2015 WL 5097611, *5 (10th Cir. Aug. 31, 2015) (holding court of appeals lacks
    jurisdiction over the governments prosecutorial discretion decisions).
    Petitioners also assert that Ms. Ramos-Rauda has been granted Deferred
    Action for Childhood Arrivals, thus making her mother, Ms. Rauda-Castillo, eligible
    for discretionary relief. The respondent notes that petitioners have provided no
    evidence to support this assertion. Deferred action is a use of prosecutorial
    discretion to defer removal action against an individual for a certain period of time.
    Deferred action does not provide lawful status. See http://www.uscis.
    gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca (last visited

    Oct. 9, 2015). As we held above, we lack jurisdiction over this claim for the DHS to
    exercise prosecutorial discretion.
    III.
    Petitioners IFP motion is granted. The petition for review is denied in part
    and dismissed in part for lack of jurisdiction.

    Entered for the Court

    Jerome A. Holmes
    Circuit Judge

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