UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JOB SAMUEL RAMIREZCANENGUEZ, a/k/a JOB SAMUELRAMIREZ; GEOVANNY ALEXANDER RAMIREZ-CANENGUEZ, a/k/aALEXANDER CANENGUEZGIOVANNY, Petitioners,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 12-9585 (Petition for Review)

ORDER AND JUDGMENT *

Before HARTZ , Circuit Judge, BRORBY , Senior Circuit Judge, and EBEL , Circuit Judge.

* After examining the briefs and appella te record, this pa nel 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 case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 26, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - Brothers Job Ramirez-Canengu ez and Geovanny Ramirez-Canenguez (together, Petitioners) seek revi ew of a decision of the Board of Immigration Appeals (BIA) concluding that the immigration judge (IJ) did not err in denying a continuance. Exercising jurisdiction unde r 8 U.S.C. § 1252, we deny the petition. Background Petitioners are natives and citizens of El Salvador who entered the United States illegally in May 2010 and were ca ught soon after crossing the border. They filed for asylum, restriction on removal, and relief under the Convention Against Torture (CAT), stating that they wished to pursue thei r educations but MS-13 gang members were harassing and th reatening them, trying to ge t them to leave school and join the gang. In short procedural hearings in July and October 2010, the IJ voiced concerns regarding the difficulty of seeking asyl um in Petitioners’ ci rcumstances because harassment by gangs rarely arises from a pr otected attribute such as political opinion or membership in a part icular social group. See Matter of S-E-G- , 24 I. & N. Dec. 579, 587 (BIA 2008) (“[G]angs have dir ected harm against anyone and everyone perceived to have interfered with, or who might present a threat to, their criminal enterprises and territorial pow er. The respondents are theref ore not in a substantially different situation from anyone who has crossed the gang, or who is perceived to be a threat to the gang’s interests.”); see also Rivera-Ba rrientos v. Holder , 666 F.3d 641, 653 (10th Cir. 2012) (“The evidence in th e record suggests that gang violence is- 3 - widespread in El Salvador, and that MS- 13 directs harm agains t any individual where doing so may promote the gang’s interest s.”). A merits h earing was set for March 15, 2011. In January 2011 counsel was allowe d to withdraw because a pro bono organization would be representing Petitioners. Only two weeks before the merits hearing, however, on March 2, 2011, the or ganization terminated its involvement in Petitioners’ case. Petitioners retained a new attorney, who requested a continuance of the merits hearing to allo w him to prepare the case. See 8 C.F.R. § 1003.29 (“The Immigration Judge may grant a motion fo r continuance for good cause shown.”). Relying on Matter of Sibrun , 18 I. & N. Dec. 354 (BIA 1983), the IJ denied the request for failure to establish good cau se because counsel did not show that additional evidence would be significantly favorable to Petiti oners; counsel could point to nothing that would establish a nexus between Petiti oners’ harm and any grounds eligible for asylum protection. Once they were denied a continuance, Pe titioners declined to testify in support of their asylum applications . Accordingly, the IJ deni ed the applications because Petitioners failed to meet their burden of proof. See Matter of Fefe , 20 I. & N. Dec. 116, 118 (BIA 1989) (asylum applicant cann ot meet his burden of proof unless he testifies under oath regarding his app lication); 8 C.F.R. § 1240.11(c)(3)(iii) (requiring asylum applicant to be examined under oath).- 4 - Before the BIA, Petitioners argued that the IJ applied the wrong legal standard in evaluating their motion for a continuance and that the IJ erre d in denying their applications for asylum. In a single-judge order the BIA held that the IJ had broad discretion to determine whether Petitioners had shown good cause fo r a continuance. Citing Sibrun , the BIA stated, “[A]n Immigrati on Judge’s decision denying a motion for continuance will not be reversed unless the alien establishes th at the denial caused him actual prejudice and harm and materially affected th e outcome of his case.” R. at 6 (brackets and internal quotati on marks omitted). The BIA rejected Petitioners’ contention that the IJ had not employed the “good cause” standard and held that Petitioners had failed to s how material prejudice. Consequently, it dismissed the appeal. Analysis The primary issue before us is the deni al of a continuance, which we review for abuse of discretion. See Jimenez-Guzman v. Holder , 642 F.3d 1294, 1297 (10th Cir. 2011). “Only if the decision was made with out a rational explanation, inexplicably departed from established policie s, or rested on an impermissible basis, will we grant the petition for review.” Id. (brackets and internal quotation marks omitted). Petitioners renew their argument that the agency did not employ the “good cause” standard. We disagree. In disc ussing the “good cause” standard, the BIA long ago held that if an alie n seeks a continuance to prep are his case, he must show- 5 - “a diligent good faith effort to be ready to proceed and that any additional evidence he seeks to present is probativ e, noncumulative, and signifi cantly favorable to [him].” Sibrun , 18 I. & N. Dec. at 356. On appeal to the BIA, the alien must show that the “denial caused him actual prejudice and harm and materially affect ed the outcome of his case.” Id. at 356-57. “Bare, unsupported alle gations are insufficient; the alien must specifically arti culate the particular facts invol ved or evidence which he would have presented, and otherwise fully explai n how denial of his motion fundamentally changed the result reached.” Id. at 357. In this case the BIA si mply recognized and app lied these well-established principles. In their BIA brie f, Petitioners did not specifically articulate the particular facts involved or detail the evidence they would have presented had they been granted a continuance. Beca use they fail ed to meet Sibrun ’s requirements, the BIA did not err in rejecting thei r challenges to the IJ’s de nial of the continuance. Petitioners also contend that the BIA fa iled to address thei r argument that the IJ improperly denied their asylum applications. We must be cautious not to undertake tasks that properly fall to the agency. See INS v. Orlando Ventura , 537 U.S. 12, 16 (2002) (per curiam). Theref ore, when the BIA has failed to address an argument, we remand if “a ground . . . appears to have substance.”
Rivera-Barrientos , 666 F.3d at 645. Given the pro cedural posture of this case, however, there is no substance to the asyl um argument Petitioners presented to the BIA. Despite being warned by the IJ of the consequences, Pet itioners refused to- 6 - testify in support of their app lications. Therefore, they fa iled to carry their burden of proof. See Fefe , 20 I. & N. Dec. at 118; 8 C.F.R. § 1240.11(c)(3)(iii). In the face of that failure, the IJ could not grant Petitione rs’ asylum applicati ons and the BIA could not reverse such denial of relief. Finally, Petitioners assert that the agen cy erred in ignoring their requests for restriction on removal and CAT relief. This court lacks jurisdicti on to consider this issue because they did not raise it in their appeal to the BIA. See Ismaiel v. Mukasey , 516 F.3d 1198, 1207 (10th Cir. 2008). Petitioners’ motion to proceed in forma pauperis is granted. The petition for review is denied. Entered for the Court

Harris L Hartz Circuit Judge