NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0754n.06 No. 12-3177 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT EL VI N MAL DONAD O-REYES, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM THE U

NI TED STATES BO ARD OF I MMI GRATI ON APPEAL S

BEF ORE: WHI TE and DO NAL D, Circuit J udg es; VARL AN, District Judge. *

PER CURI AM. E l v in Maldonado-Re y es petitions for revie w of an order of the Boa rd of I mmigra tion Appea ls ( B I

A ) d ismiss ing his appea l from an immigra tion judge ’s (I J ) decision deny ing his request for

a continuanc e and ente ring an orde r of r emoval. We deny the petition for re view. Maldonado-Re y es, a na tive and citizen of Hondura s, entere d the Unit ed S tates by illega lly crossing the Arizona border in 2002, “more or less.” (A.R. 57–58). On May 31, 2007, office rs with the Depa rtment of Homeland Security (DHS) encounte red Maldonado-Re y es while sear ching for a fug itive and serve d him with a notice to appea r, char g ing him with remova bility u n d er Section 212(a) (6)( A)(i) of the I mmigra tion and Nat i o n al i ty Act (I NA), 8 U.S.C. § 1182(a) (6)( A)(i) , as an

The Honora

ble Thom a s A

. V a

r la n , Ch ie f U nited States District J udg e for the Easter n District * of Tenne ssee, sitting by

desig nation.No. 12-3177

Maldonado-Re

yes v . Holder alien who is prese nt in the United States without being admitted or parole d or arr ives in the United States at any

time or place other than a s desig nated by the Attorney

Gene ral. (A .R. 75–76, 78). Maldonado-Re y es initially appea red befor e an I J on October 4, 2007. (A.R. 49–53). Maldonado-Re y es requested and rec eived a continuance until March 19, 2008, to obtain counsel. (A.R. 52). The I J advised Maldonado-Re y es that he would not be g iven an additional period of time to obta in c ounsel afte r that date and that “y ou need to make sure y ou have y our lawy er by the time y ou come ba ck to Court in March.” (A.R. 52–53). Maldonado-Re y es appea

red without counsel at hi s re moval hear ing on Marc h 19, 2008. (A.R. 55–56). Maldonado-Re y es explained that his boss had reta ined counsel, who “wa s supposed
to be here today ,” and stated t h at his boss told him to reque st an extension of time. (A.R. 56). Maldonado-Re y es did not know the attorney ’s name “bec ause my boss is the person who’s g ot him for me.” (A.R. 56). Wit hout the attorney ’s name, the I J declined to g rant a further extension, noting that Maldonado-Re y es was serve d with the notice to appea r in May and thus had approximately ten months to obt ain counse l. (A.R. 56). Maldonado-Re y es rene wed his re quest for a n extension “so I can look for a lawy er on my own behalf .” (A.R. 56–57). The I J denied his reque st and proce eded wi t h t h e hear ing. (A.R. 56–57). After questioning Maldonado-Re y es, the I J found by clea r and

co n v incing evidenc e that he was remova ble as char g ed. (A.R. 57–58). The I J then inqui re d i n t o Maldonado-Re y es’s possible elig ibilit y for relief from remova l, asking if he had any particula r fea rs about returning to Hondura s. (A.R. 60). Maldonado-Re y es responde d that his mother and aunt wer e

run over by car s, that his sister was run over by a motorcy cle but survived, an d that his brother’ s shop was set on fire, the cause unknown. (A.R. 60). Ba s ed on Maldonado-Re y es’s response, the -2-No. 12-3177

Maldonado-Re

yes v . Holder I J conclude d that he had no appar ent elig iblity for relief other than voluntary depar ture. (A.R. 61). Maldonado-Re y es ag ain reque sted an extension, this time based on his medical condition, which the I J denied beca

use his medical condition did not provide a basis for rema ining in the United States. (A.R. 61–62). Maldonado-Re y es next raised his f amily ’s problems in H onduras as g rounds for an extension; the I J reje cted his reque st, stating that “people g etting run over . . . by car s, that happens in the United States ever y day of the y ear .” (A.R. 62). The I J subsequently denied v o l u ntary depar ture a nd order ed Maldona do-Rey es’s re moval to Honduras. ( A.R. 62–65). I n h is appea l to the BI A, Maldonado-Re y es asser ted that the I J err ed in: (1) d en y i n g h i s reque st for a continuance to obtain counsel; (2) failing to provide him with an opportunity to apply for a sy lum, withholdi ng of re moval, and re lief under the Convention Ag ainst Torture (CAT) after he expressed a fea

r of returning to Hondura s, in violation of 8 C.F.R. § 1240.11(c) (1); (3) deny ing him voluntary depar

ture; and (4) failing to issue a separ ate oral or written decision. (A.R. 20–30). The BI A rema nded the case to the I J for a deci s i o n ad d re s s ing all leg al issues and providing a rationale

. (A.R. 11). The I J issued a written decision and cer tified the case to the BI A for adjudication of the previously -filed appea l. (A

. R

. 5 –7). The BI A dismiss ed Maldonado-Re y es’s appea l, concluding that he failed to demonstrate that he was denied a full and fair hear ing befor e the I J

. (A.R. 3–4). The B I A held that, bec ause Ma ldonado-Rey es wa s informed of his rig ht to obtain counsel and was g iven an opportunity t o d o s o , the I J did not violate his due proce ss rig hts in deny ing his reque st for a continuance ; that Maldonado-Re y es failed to demonstrate prima fac ie elig ibilit y for any form of relief from remova l; and that he failed to establish elig ibilit y for voluntary depar ture. (A .R. 3–4). -3-No. 12-3177

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yes v . Holder This timely petition for revie w followed. Where, as here , “the BI A revie ws the immigra tion judge ’s decision and issues a separ ate opinion, rathe r than su m m ar i l y aff irming the immigra tion judge ’s decision, we revie w the BI A’ s d ec i s i on as the final ag ency deter mination.” Khalil i v. Holder , 557 F.3d 429, 435 ( 6th Cir. 2009). Maldonado-Re y es challeng es the denial of his reque st for a continuance

. “We revie w the BI A’s aff irmance of t h e I J ’s d en ial of petitioner’s motion for continuance under an abuse- ofdiscretion standard.” Ilic-Lee v. Mukas ey , 5 0 7 F.3d 1044, 1047 (6th Cir. 2007). “An abuse of discretion occur s if ‘the denial

. . . was made without a rational explanation, inexpl icably depar ted from esta blished policies, or re sted on an impermissible basis such a s invidious di scrimination.’” Id . (omission in original) ( quoting Abu-Khaliel v. Gonzales , 436 F.3d 627, 634 ( 6th Cir. 2006)). The I J “may g rant a motion for continuance for good cause shown.” 8 C.F.R. § 1 0 0 3

. 2 9. “F inding ‘g ood cause ’ is cruc ial since a continuance , in ef fect, allows an alien to rema in in the United States for a period of time without any d ef i ned leg al immigra tion status.” Ukpabi v. Mukase y , 5 2 5 F.3d 403, 407–08 (6th Cir. 2008). Her e, the I J provided Maldonado-Re y es with a five-month continuance to obtain counsel. When Maldonado-Re y es appea red without counsel and reque sted a further extension o f time, he claimed that his boss had reta ined counsel for him, but counsel had not enter ed an appea ranc e and Maldonado-Re y es did not know the attorney ’s name and could not explain why the attorney was not prese nt for the remova l hear ing. Under the circ umstances, the BI

A d id n o t a

b use its discretion in aff

irming the I J ’s denial of Maldonado-Re y es’s reque st f or a further continuance

. See Ramirez-Chacon v. Holder , 397 F. App’x 179, 184–85 (6th Cir. 2010) (holding that the I J did not abuse his discretion in deny ing reque st for further continuance -4-No. 12-3177

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yes v . Holder wher e the I J g rante d previous requ est); Al-Najar v. Mukase y , 515 F.3d 708, 717 (6th Cir. 2008) (holding that, wher e the I J had previously gra nted continuance reque sts, “this rea son alone is a sufficie nt basis to affirm the I J ”). Maldonado-Re y es additional l y ar gues that the I J failed to take his medical condition into

acc ount in d en y i n g his reque st for a continuance

. To the contra ry , the I J expressly considere d Maldonado-Re y es’s reque st for an extension based on his medical condition and denied that reque st beca use the medical condition did not provide a basis for rema ining in t h e Uni ted States. (A.R. 61–62). Maldonado-Re y es fur t h er co n t ends that the denial of a continuance amounted to a depriva tion of his r ight to c ounsel, violating his due proce ss r ights. The denial of a continuance is discretionar

y and there fore cannot form the basis for a due proce ss claim. Abu-Khaliel , 436 F.3d at 635. Reg ardle ss, Maldonado-Re y es cannot demonstrate prejudice , as discussed below. See Gishta

v. Gonzales , 404 F.3d 972, 979 (6th Cir. 2005) (holding that an alien raising a due proce ss challeng e to removal proc eeding s must show error a nd substantial prejudice ). Maldonado-Re y es also asser ts that the I J violated 8 C.F.R. § 1240.11(c) (1) by failing to advise him of his rig ht to apply for asy lum or wi t h h o l d i n g of remova l and provide him with the appropr iate application form. We revie w questions of law de novo, “but substantial d eferenc e is g iven to the BI

A’s interpre tations of the I NA and acc ompany ing reg ulations.” Khalil i , 557 F.3d at 435. Under 8 C.F.R. § 1240.11(c) (1), if an “alien expresses fea r of perse cution or harm upon return to any of the countries to which the alien might be remove d

. . . , the immigra tion judge shall: (i) [ a] d v i s e t h e al i en that he or she may apply for asy lum in the United States or withholding of

remova l to those countries; [and] (ii) [m ]ake available the appropr iate application forms.” 8 C.F.R. -5-No. 12-3177

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yes v . Holder § 1240.11(c) (1)( I )–(ii). We have require d a pet i t i o ner claiming a violation of 8 C.F.R. § 1240.11(c) (1) to demonstrate prejudice —“that the immigra tion judge ’s failure to advise him of his statutory rig hts led to a substantially differ ent outcome from that which would have occur red in the absenc e of the violation.” Dominguez-G onzalez v. Holder , 381 F. App’x 511, 515 (6th Cir. 2010) (interna l quotation marks and bra ckets omitted). I n this case , to establish prejudice Maldonado-Re y es “would need to show that he has alleg ed

. . . sufficie nt fac tual alleg ations to support the conclusion that he is elig ible for asy lum, withholding of remova l, or relief under the Convention Ag ainst Torture .” Id. He has not done so. MaldonadoRey es asser

ted that his mother, aunt, and sister wer e run over by vehicles and that his brother’ s shop

was set on fi re; howeve r, he does not asser t that these events are somehow linked to perse cution based on a protec ted g round. (A.R. 60). Maldonado-Re y es’s alleg ations fail t o d em onstrate prejudice from the I J ’s alleg ed er ror. See D ominguez-Gonzale z , 381 F. App’ x at 515–17. For the fore g oing r easons, we deny Maldonado-Re y es’s pe tition for review

.

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