UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JOB SAMUEL RAMIREZCANENGUEZ, a/k/a JOB SAMUELRAMIREZ; GEOVANNY ALEXANDER 

RAMIREZ-CANENGUEZ, a/k/a 

ALEXANDER 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 appellate record, this 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 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 26, 2013

Elisabeth A. Shumaker 

Clerk of Court
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 Brothers Job Ramirez-Canenguez and Geovanny Ramirez-Canenguez 

(together, Petitioners) seek review 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 under 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 caught 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 their educations but MS-13 gang 

members were harassing and threatening them, trying to get 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 asylum in Petitioners’ circumstances because 

harassment by gangs rarely arises from a protected attribute such as political opinion 

or membership in a particular social group. See Matter of S-E-G-, 24 I. & N. Dec. 

579, 587 (BIA 2008) (“[G]angs have directed harm against anyone and everyone 

perceived to have interfered with, or who might present a threat to, their criminal 

enterprises and territorial power. The respondents are therefore 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-Barrientos v. Holder, 666 F.3d 641, 

653 (10th Cir. 2012) (“The evidence in the record suggests that gang violence is 
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widespread in El Salvador, and that MS-13 directs harm against any individual where 

doing so may promote the gang’s interests.”). A merits hearing was set for 

March 15, 2011. 

 In January 2011 counsel was allowed to withdraw because a pro bono 

organization would be representing Petitioners. Only two weeks before the merits 

hearing, however, on March 2, 2011, the organization terminated its involvement in 

Petitioners’ case. Petitioners retained a new attorney, who requested a continuance 

of the merits hearing to allow him to prepare the case. See 8 C.F.R. § 1003.29 (“The 

Immigration Judge may grant a motion for 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 cause because counsel did not show that 

additional evidence would be significantly favorable to Petitioners; counsel could 

point to nothing that would establish a nexus between Petitioners’ harm and any 

grounds eligible for asylum protection. 

 Once they were denied a continuance, Petitioners declined to testify in support 

of their asylum applications. Accordingly, the IJ denied 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 cannot meet his burden of proof unless he 

testifies under oath regarding his application); 8 C.F.R. § 1240.11(c)(3)(iii) 

(requiring asylum applicant to be examined under oath). 
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 Before the BIA, Petitioners argued that the IJ applied the wrong legal standard 

in evaluating their motion for a continuance and that the IJ erred 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 for a continuance. 

Citing Sibrun, the BIA stated, “[A]n Immigration Judge’s decision denying a motion 

for continuance will not be reversed unless the alien establishes that the denial caused 

him actual prejudice and harm and materially affected the outcome of his case.” 

R. at 6 (brackets and internal quotation marks omitted). The BIA rejected 

Petitioners’ contention that the IJ had not employed the “good cause” standard and 

held that Petitioners had failed to show material prejudice. Consequently, it 

dismissed the appeal. 

Analysis 

 The primary issue before us is the denial 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 without a rational explanation, 

inexplicably departed from established policies, 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 discussing the “good cause” standard, the BIA 

long ago held that if an alien seeks a continuance to prepare his case, he must show 
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“a diligent good faith effort to be ready to proceed and that any additional evidence 

he seeks to present is probative, noncumulative, and significantly 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 affected the outcome of 

his case.” Id. at 356-57. “Bare, unsupported allegations are insufficient; the alien 

must specifically articulate the particular facts involved or evidence which he would 

have presented, and otherwise fully explain how denial of his motion fundamentally 

changed the result reached.” Id. at 357. 

 In this case the BIA simply recognized and applied these well-established 

principles. In their BIA brief, Petitioners did not specifically articulate the particular 

facts involved or detail the evidence they would have presented had they been 

granted a continuance. Because they failed to meet Sibrun’s requirements, the BIA 

did not err in rejecting their challenges to the IJ’s denial of the continuance. 

 Petitioners also contend that the BIA failed to address their 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). Therefore, 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 procedural posture of this case, 

however, there is no substance to the asylum argument Petitioners presented to the 

BIA. Despite being warned by the IJ of the consequences, Petitioners refused to 
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testify in support of their applications. Therefore, they failed 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 Petitioners’ asylum applications and the BIA could 

not reverse such denial of relief. 

 Finally, Petitioners assert that the agency erred in ignoring their requests for 

restriction on removal and CAT relief. This court lacks jurisdiction 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