UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

ALFONSO RIOS GONSALEZ, a/k/a Alfonso Gonzalez-Rios, a/k/a Ramon Alfonso Rios-Gonzalez, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9606 (Petition for Review)

ORDER AND JUDGMENT *

Before LUCERO and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

Alfonso Rios Gonsalez, a native and citizen of Me xico, seeks review of a Board of Immigration Appeals’ (BIA’s) d ecision upholding an Immigration Judge’s (IJ’s) removal order. We have jurisdiction under 8 U. S.C. § 1252, and we deny Mr. Gonsalez’s petition for review.

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 4, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - B ACKGROUND Mr. Gonsalez attempted to enter the Un ited States on March 31, 2001, but was apprehended by border patrol officers and he voluntarily returned to Mexico. The following day, however, he successfully en tered this country without inspection. In December 2009, police in Avon, Colorado, arrested Mr. Gonsalez on charges of driving without a license, having obstructed windows, and possessing a forged instrument. That sa me month, the Department of Homeland Security (DHS) began removal proceedings by serving him w ith a Notice to Appear (NTA), charging him as an alien present in the country without being admitted or paroled. In response, Mr. Gonsalez, who was represented by counsel, refused to concede the NTA’s service and charges, and he sought to suppress as the fruit of a poisonous tree “all derivativ e evidence resulting from the tr affic stop.” R. at 206. An IJ denied relief. In August 2011, Mr. Gonsalez appear ed for a hearing before the IJ and admitted he “ha[d] no evidence” showing a pr ior lawful admission, but he reasserted his fruit-of-the-poisonous-tree theory. R. at 93, 94. The IJ again rejected the theory and sustained the charge of removability. He directed Mr. Gonsalez to file any documents supporting cancellati on of removal by December 2011, and to appear for a merits hearing in November 2012. In January 2012, Mr. Gonsalez s ubmitted an untimely application for cancellation of removal, clai ming that he first entered the United States on May 1,- 3 - 1999, but he provided no evid ence to support that date. Three months before the scheduled hearing, Mr. Gons alez’s counsel moved to w ithdraw, citing his client’s failure to comply with thei r attorney-fee agreement. Th e IJ promptly granted the motion. At the November 2012 hearing, Mr. G onsalez appeared with new counsel, who stated that he had onl y “recently been hired” 1 and he needed a con tinuance in order to
prepare. Id. at 106. He suggested that there “m ay be a possibility ” that Mr. Gonsalez would qualify for deferred action. R. at 112. 2 DHS opposed a continuance, citing Mr. Gonsalez’s delay in obtaining new co unsel and arguing that cancellation would be unavailable because Mr. Gonsalez had not been continuously pr esent in the United States for ten years before DHS served the NTA in December 2009. See 8 U.S.C. § 1229b(d)(1) (providing that an alien’s c ontinuous presence in th e United States for ten years, in order to obtain cancellation of removal, ends when an NTA is served on the alien).

1 It appears that Mr. Gons alez retained his new atto rney sometime in October 2012.
2 Under the Deferred-Action-for-Childh ood-Arrivals (DACA) process, United States Citizenship and Immigration Servi ces allows “[c]ertain people who came to the United States as children and meet several key guidelines [to] request consideration of deferred action for a peri od of two years, subj ect to renewal.” See http://www.uscis.gov/humanitarian/consid eration-deferred-action-childhoodarrivals-process#guidelines. One of the gui delines requires that the applicant be “under the age of 31 as of June 15, 2012.” See id. Mr. Gonsalez wa s thirty-seven on that date.- 4 - The IJ denied the request for a con tinuance, explaining that DHS was opposed to a continuance; four continuances had already been granted since the case began nearly three years earlier; Mr. Gonsalez had over a year to prepare for the merits hearing; Mr. Gonsalez did not appear to have acted promptly in securing new counsel; and no evidence had been offered to show that he might prevail through his cancellation application. The IJ then proceeded to the merits of the request fo r cancellation of removal. But Mr. Gonsalez’s counsel in formed the IJ that he “really [did not] understand the case enough to” address cancellation of removal, R. at 119; that he had “no evidence” to support cancellation, id. at 121; and that Mr. Gonsalez would “take the deportation” and appeal the denial of a continuance, id. at 120. Counsel declined, however, to abandon the cance llation application. The IJ then denied cancellation and ordered Mr. Gonsalez removed to Mexico. The BIA affirmed the IJ’s decision, rejecting Mr. Go nsalez’s arguments that the IJ was biased and that he had erred by allowing Mr. Gonsalez’s first attorney to withdraw. The BIA further determined th at Mr. Gonsalez had not demonstrated good cause for a continuance and that Mr. Gons alez’s due-process rights were not violated by being denied a continuance.
D ISCUSSION Because a single member of the BIA entered a brie f affirmance order under 8 C.F.R. § 1003.1(e)(5), we review the BIA’ s decision as the final order of removal,- 5 - but “we may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Sarr v. Gonzales , 474 F.3d 783, 790 (10th Ci r. 2007). We review the denial of a motion for a continuance onl y to determine if th e decision “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.” Young Hee Kwak v. Holder , 607 F.3d 1140, 1143- 44 (10th Cir. 2010) (internal quotation marks omitted). I. Denial of a Continuance Initially, we note that Mr . Gonsalez’s arguments are prolix, vague, and contain little discussion of the precise circumstances of this case. 3 Further, as the government notes, Mr. Gonsal ez has not attempted to show that the denial of a continuance rests on an irrational explan ation, a departure from policy, or an impermissible basis. Indeed, Mr. Gons alez scarcely mentions the BIA’s decision

3 For example, he states that the denial of Petitioner’s later applications before the Immigration Court constitutes ‘inviduous discrimi nation’ between Immigrants who live and work in States , Districts, or Circui ts wherein the political discourse seems obviously to have a ffected the predisposition of elected or appointed officials to oppose or resist the interpretations of the highest executive or highest judici al pronouncements on the law and those who live elsewhere. Aplt. Opening Br. at 17. But he provides no clear guidance or support for how this sweeping and argumentative generalization applie s to the BIA’s decision in this case. We deem this, and other similar inade quate and unsupported arguments, to be waived. See Garrett v. Selby Co nnor Maddux & Janer , 425 F.3d 836, 841 (10th Cir. 2005) (“[I]ssues will be deem ed waived if they are not ad equately briefed.” (internal quotation marks omitted)); Griffin v. Davies , 929 F.2d 550, 554 (10th Cir. 1991) (“We will not undertake to decide issu es that do not affect the outcome of a dispute.”).- 6 - insofar as it upheld the denial of a continuance or the withdr awal of his first attorney. Consequently, Mr. Gonsalez ha s waived any challenge to those aspects of the BIA’s decision. See Therrien v. Target Corp. , 617 F.3d 1242, 12 53 (10th Cir. 2010) (“[F]ailure to raise an ar gument sufficiently in the opening brief waives that argument.”).
II. Due Process It appears that Mr. Gonsalez’s primar y contention involves the denial of due process. He claims that hi s rights were arbitrarily denied in a “perfunctory hearing” and that the IJ “avoid[ed] . . . the evid ence” and “foreclosed the raising of any questions on the nature of the turnaround.” Aplt. Opening Br. at 18, 21, 27, 28. We disagree. “Because aliens do not have a constituti onal right to enter or remain in the United States, the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful
manner.” Arambula–Medina v. Holder , 572 F.3d 824, 828 (10th Cir. 2009) (internal quotation marks omitted). “To prevail on a due process claim, an alien must establish not only error, but prejudice.” Alzainati v. Holder , 568 F.3d 844, 851 (10th Cir. 2009). First, regarding procedural error, Mr . Gonsalez’s charact erizations of the proceedings in immigration court are entire ly unfounded. The IJ gave Mr. Gonsalez and his counsel opportunities to show a prio r lawful admission, to assert and then- 7 - re-assert a fruit-of-the-pois onous-tree argument, to rais e the possibility of DACA relief, to request a continuance, and to support his cancellation application (even though it was untimely). The hearings were not perfunctory exercises. And to the extent Mr. Gonsalez maintains that the IJ was biased, the record belies that claim. Nor did the IJ avoid any evidence or foreclose any arguments regarding cancellation. Indeed, Mr. Gonsalez presen ted no evidence to avoid. He offered nothing in support of his can cellation application and appa rently decided to pretermit the issue himself in hopes of a favorable appeal to the BIA on the denial of a continuance. Mr. Gonsalez contends in his reply brie f that the IJ should have warned or advised him that he “was assuming the ob ligations unfinished by his prior Attorney” and that he was “eligib[le] to apply for any of the benefits” listed in the regulations. Reply Br. at 2, 4. We gene rally do not consider arguments raised for the first time in a reply brief, Mays v. Colvin , 739 F.3d 569, 576 n.3 (10th Cir. 2014), and Mr. Gonsalez offers no reason for us to deviate here from that general rule. Second, even if Mr. Gonsalez could show he was denied a meaningful hearing, he has not shown any prejudice. As the BIA noted, Mr. Gonsalez has never identified any evidence supporting cancellati on that the IJ shoul d have allowed,- 8 - either at the hearing or at a continued hearing. 4 Consequently, Mr. Gonsalez’s due-process argument fails. C ONCLUSION The petition for review is denied. Mr . Gonsalez’s application to proceed on appeal in forma pauperis is granted. Entered for the Court
Wade Brorby Senior Circuit Judge

4 Insofar as Mr. Gonsalez argues that he was prejudiced because the IJ improperly relied on evidence that he was turned around at the border on March 31, 2001, we note that he mischa racterizes the IJ’s decision. The IJ denied cancellation of removal because Mr. G onsalez had not provided any evidence showing he had been continuously present in the United States for ten y ears. As the BIA observed, an alien bears the burden of establishi ng eligibility for cancellation of removal, see 8 U.S.C. § 1229a(c)(4), and Mr. Gonsal ez failed to specify “what evidence he would have filed or testimony he would have provided” in suppor t of his cancellation application. R. at 9. Mr. Gonsalez has offered nothing to undermine the BIA’s observation.