UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

CARLOS ANDRES DIAZ MATEO, Petitioner,

v. ERIC H. HOLDER, JR., Respondent. No. 11-9599 (Petition for Review)

ORDER AND JUDGMENT *

Before LUCERO , TYMKOVICH , and HOLMES , Circuit Judges.

Carlos Andres Diaz Ma teo, a native and citizen of the Dominican Republic, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision upholding the immigration j udge’s (“IJ”) denial of a motion for continuance. Exercising jurisdiction under 8 U.S.C. § 125 2(a), we deny the petition for review.

* After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The petition for review is therefore ordered submitted wi thout 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 This order and judgment is not binding precedent, except under the doctrines of law of the case , res judicata, and collateral estoppel.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 persua sive value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 21, 2012
Elisabeth A. Shumaker Clerk of Court-2- I Diaz Mateo entered the United States in January 2003 as a lawful permanent resident. On July 3, 2009, the Departme nt of Homeland Security (“DHS”) issued him a Notice to Appear, charging him with re movability due to an assault and battery conviction. Diaz Mateo retained counsel, who entered an appearance on his behalf in October 2009. In the meantime, Diaz Mateo’s assault an d battery conviction was vacated. In May 2010, Diaz Mateo moved to terminate his immigrati on proceedings based on his vacated charge. DHS argued that the c onviction was still valid for immigration purposes, and subsequently moved to file a motion to terminate the proceedings without prejudice. The IJ denied the motion. In March 2011, Diaz Mateo was convicted of possession of marijuana. DHS amended the Notice to Appear to include a new charge of removability based on the drug offense under 8 U.S.C. § 1227(a)(2)(B)(i). At a June 2, 2011 he aring, Diaz Mateo conceded removability, but declared he would seek cancellation of removal. The IJ set a June 24 d eadline for filing his application for cancellation of removal, and scheduled a hearing on the application for July 11. The day before the application was due , Diaz Mateo’s counsel moved for a continuance. The IJ considered the moti on at the July 11 merits hearing, where counsel stated that he had not filed an a pplication because Diaz Mateo and his family-3- had not provided needed documents or pa id filing and attorney’s fees, and had stopped taking telephone calls from counsel. Counsel in formed the IJ that Diaz Mateo’s family had attempted to hire a new attorney to re place him, and asked the IJ for a continuance so that Diaz Mateo could retain this new counsel. The IJ denied the continuance and ordered Diaz Mateo removed to the Dominican Republic, reasoning that: (1) c ounsel had first entered an appearance twenty-one months before the July 11 h earing; (2) there had been ten scheduled master calendar hearings at which Diaz Mate o and counsel had appeared; (3) the July 11 hearing had been scheduled on June 2; (4) the application was due on June 24; (5) Diaz Mateo presented no application on that date or at the July 11 hearing; (6) counsel stated that Diaz Mateo’s family had failed to pay him or return his telephone calls; and (7) Diaz Mateo had ample time to decide who would represent him and to file his application. The BIA dismissed Diaz Mateo’s appeal, c oncluding the IJ co rrectly denied a continuance. It determined that the deni al did not violate Di az Mateo’s statutory right to counsel under 8 U.S. C. § 1362. Additionally, it held that Diaz Mateo’s failure to file an applica tion for cancellation of removal was due to his failure to cooperate with existing counsel. Althoug h Diaz Mateo was repr esented by different counsel before the BIA, the BIA noted th at Diaz Mateo still ha d not submitted an application for cancellation of removal. Lastly, the BIA found Diaz Mateo had failed to establish a due process violation.-4- II Diaz Mateo first challenges the IJ’s denial of a continuance. An IJ may grant a continuance upon a showing of good cause. 8 C.F.R. § 1003.29. We review the denial of a continuance for an abuse of discretion. Jimenez-Guzman v. Holder, 642 F.3d 1294, 1297 (10th Cir. 2011). “Only if the d ecision was made without a rational explanation, inexplicably departed from established polices, or rested on an impermissible basis will we grant the petiti on for review.” Id. (quotation marks and alterations omitted). Diaz Mateo has not established that the IJ abused its disc retion in denying the continuance. He does not dispute that ten master calendar hearings were held before the IJ denied his request and issued the re moval order. Nor does he dispute that he had been represented by counsel since Oct ober 2009, giving him nearly two years to prepare his case with his atto rney or find another attorney. Diaz Mateo therefore fails to show that the IJ abus ed its discretion in denying his request for a continuance.
III Diaz Mateo also argues that his due process rights were violated when the IJ denied the continuance. He maintains that the IJ precluded him from choosing who would represent him, thereby viol ating his due process rights. Diaz Mateo had a statutory right to repr esentation by counsel of his choice at his own expense at the agency proceedings . See 8 U.S.C. §§ 1362, 1229a(b)(4)(A); see also 8 C.F.R. § 1003.16(b) . His right was not violated, however, because he was-5- represented throughout the pr oceeding by counsel that he had previously chosen. Diaz Mateo had sufficient time to obtain substitute counsel if he was displeased with his current counsel, and to file an app lication for cancellation of removal. Additionally, a noncitizen lacks a due process interest in obtaining purely discretionary relief, includi ng cancellation of removal. Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Ci r. 2009). And Diaz Mateo ha s not made any claim of prejudice that would suggest that the proceedings were unfair. See Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990) (“ The [F]ifth [A]mendment guarantee of due process speaks to fundamental fairness; be fore we may intervene based upon a lack of representation, petitioner must dem onstrate prejudice which implicates the fundamental fairness of the proceeding.”). Therefore, Diaz Ma teo has failed to establish that the IJ’s denial of the continuan ce denied him due process. 1
IV For the foregoing reasons, th e petition for review is DENIED

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Entered for the Court

Carlos F. Lucero Circuit Judge

1 Diaz Mateo also argues that he wa s denied an opportunity to seek readjustment of status. But he never reque sted an adjustment of status before the agency; therefore, we do not cons ider the argument on appeal.