NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIXTO ARIOS MANUEL, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 14-70045 

Agency No. A046-512-173 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 15, 2019**

Honolulu, Hawaii

Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.

Petitioner Sixto Manuel (“Manuel”) seeks review of a Board of Immigration 

Appeals’ (“BIA”) dismissal of his administrative appeal challenging an 

Immigration Judge’s (“IJ”) decision denying him a fourth continuance and finding 

 

* 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

MAR 1 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

him removable as an aggravated felon. We have jurisdiction under 8 U.S.C. 

§ 1252, and we deny the petition.

As an initial matter, we conclude that Manuel’s Petition for Review (“PFR”) 

was timely. The only evidence presented suggests that the “technical difficulties” 

were a result of a CM/ECF court system malfunction, rather than user error, and 

the government has not produced any evidence to the contrary. Based on Manuel’s 

uncontested statements, we conclude that our clerk’s office was rendered 

inaccessible on the date the PFR was due, which extended Manuel’s filing deadline

to the next “accessible day that is not a Saturday, Sunday, or legal holiday.” Fed. 

R. App. P. 26(a)(3)(A). Because Manuel properly filed the PFR on the next 

accessible day, his filing was timely. In the future, however, counsel should also 

file a contemporaneous motion and affidavit seeking confirmation of the late filing 

and explaining what prevented the timely filing. 9th Cir. R. 25-5(c)(2) (formerly 

9th Cir. R. 25-5(d)(2)).

The government’s argument that 8 U.S.C. § 1252(a)(2)(C) is a jurisdictional 

bar is foreclosed by a post-briefing case. See Garcia v. Lynch, 798 F.3d 876, 881 

(9th Cir. 2015) (holding jurisdiction exists to review “the denial of a procedural 

motion, such as a motion for a continuance, that rests on a ground independent 

from the conviction that triggers the statutory bar”). Under Garcia, we have 

jurisdiction to review the denial of Manuel’s motion to continue. 
3 

Reaching the merits, the agency neither abused its discretion nor violated

due process by denying Manuel’s motion for continuance. The decision to grant or 

deny a continuance is within “the sound discretion of the judge and will not be 

overturned except on a showing of clear abuse.” Sandoval-Luna v. Mukasey, 526 

F.3d 1243, 1247 (9th Cir. 2008) (quotations omitted). The outcome of Manuel’s 

state court Rule 40 motion was a speculative collateral attack and did not 

necessitate that the IJ or BIA wait any longer until the state court rendered a 

decision. See Garcia, 798 F.3d at 881; Singh v. Holder, 638 F.3d 1264, 1274 (9th 

Cir. 2011); 8 C.F.R. § 1003.29. The IJ had also previously granted him three 

continuances: one for the attorney to become familiar with the case, and two to 

seek post-conviction relief. Additionally, the IJ declined to consider the 

allegations in the Notice to Appear that corresponded to the criminal counts with 

the disputed date discrepancies, instead relying solely on the other two counts of 

conviction as the basis for finding Manuel removable. 

The agency did not err in denying Manuel’s motion to continue. And 

because there was no error or violation of constitutional rights, Manuel’s due 

process claim likewise fails. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 

(9th Cir. 2014) (“To prevail on a due-process claim, a petitioner must demonstrate 

both a violation of rights and prejudice.”).

PETITION FOR REVIEW DENIED.