NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR MANUEL DE LA O-TURCIOS,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-592

Agency No.

A206-548-456

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 21, 2023**

Portland, Oregon

Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.

Petitioner Victor Manuel De La O-Turcios, a native and citizen of El Salvador, 

seeks review of a Board of Immigration Appeals (BIA) decision affirming the 

Immigration Judge’s (IJ) finding that Petitioner abandoned his applications for relief 

because he failed to comply with the biometrics requirements in a timely manner, 

* 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

AUG 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-592

despite having been advised of the requirements, the deadline to complete them, and 

the consequences of failing to complete them. 

“An IJ’s decision to deem an asylum application abandoned is reviewed for 

abuse of discretion.” Gonzalez-Veliz v. Garland, 996 F.3d 942, 948 (9th Cir. 2021) 

(citing Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013)).

The agency did not abuse its discretion in concluding that Petitioner 

abandoned his application by failing to complete biometrics. By statute, an applicant 

must undergo identification—including biometrics analysis—before an application 

may proceed. 8 U.S.C. §§ 1158(d)(1), 1158(d)(5)(A)(i). The regulations provide 

that failure to comply “within the time allowed ... constitutes abandonment of the 

application and the immigration judge may enter an appropriate order dismissing the 

application[.]” 8 C.F.R. § 1003.47(c); see also 8 C.F.R. § 1208.10. As part of this 

process, an IJ must “specify for the record when the respondent receives the 

biometrics notice and instructions and the consequences for failing to comply with 

the requirements of this section.” 8 C.F.R. § 1003.47(d). Here, the IJ followed each 

of the required steps. The IJ (1) notified the applicant of the biometrics requirements 

and provided him with instructions for such procedures; (2) informed him of the 

deadline to complete biometrics; and (3) warned him of the consequences for failing 

to comply. See id.; Gonzalez-Veliz, 996 F.3d at 948–49; Matter of D-M-C-P-, 26 I. 

& N. Dec. 644, 648 (BIA 2015). 
3 22-592

1. Court transcripts reflect that Petitioner received written biometrics 

instructions at his July 8, 2015 hearing. Petitioner also concedes that at his March 

23, 2018 hearing, he received biometrics instructions. 

2. At the July 8, 2015 hearing, the IJ provided clear deadlines along with 

verbal and written instructions: “Your hearing is going to be on February 6, 

2018 ... you need to follow the instructions that you’re going to be given and get 

yourself properly fingerprinted before that hearing.” The IJ reiterated the deadline 

again later in the hearing: “[Y]ou’re going to get an appointment notice to go in and 

get fingerprinted. You must do this before the [next] hearing, so do it soon.” 

Petitioner responded: “Of course.” Petitioner’s argument that the IJ was “vague” 

and did not “not clearly give[] a date by which he must comply” is unsupported by

the record. 

3. The IJ explicitly warned Petitioner of the consequences of failing to 

comply: “If you don’t follow these instructions or you don’t go to the appointment 

to take your fingerprints, then your [application] is not complete and it cannot be 

approved by the Court even if you met all the other requirements for asylum or other 

protection” (emphasis added). Petitioner assured the IJ: “I’ll go,” and “I’ll send it 

right now.” Though the IJ did not explicitly use the word “abandoned,” the IJ’s 

verbal warnings adequately communicated “the consequences” as required by 8 

C.F.R. § 1003.47(d). Moreover, the written language Petitioner received used the 
4 22-592

word “abandoned.” 

An applicant can overcome his failure to comply with biometrics 

requirements only if that failure was the result of good cause. 8 C.F.R. § 1208.10; 

see Gonzalez-Veliz, 996 F.3d at 948. Though Petitioner is “not a native English 

speaker” and was “not represented by counsel” before the agency, such justifications 

are not good cause. Petitioner participated in all eight hearings using an interpreter 

and repeatedly assured the court that he understood what was required of him. And 

proceeding pro se is not a valid justification for failing to follow the biometrics 

instructions. Thus, the agency did not abuse its discretion in finding that Petitioner 

did not provide “good cause” for failing to comply. 

Finally, Petitioner argues he remains eligible for cancellation of removal 

based on a defective Notice to Appear. But we agree with the government that 

Petitioner did not raise this issue before the agency, and thus it is unexhausted. See 

8 U.S.C. § 1252(d)(1); Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 

2023) (noting that § 1252(d)(1) is a claim-processing rule that the court “must 

enforce” when it is properly raised by the government (quoting Fort Bend Cnty. v. 

Davis, 139 S. Ct. 1843, 1849 (2019))). 

Accordingly, the petition is DENIED.