                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       October 8, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DAGOBERTO MARRUFO-MORALES,

             Petitioner,

v.
                                                     Nos. 14-9587 & 15-9512
LORETTA E. LYNCH,                                     (Petitions for Review)
United States Attorney General,*

             Respondent.


                           ORDER AND JUDGMENT**


Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.


      Dagoberto Marrufo-Morales appeared at a hearing before an immigration

judge (IJ) unprepared to present evidence supporting his application for cancellation

of removal. After the IJ denied his request for a continuance, he accepted the IJ’s

offer of voluntary departure. The Board of Immigration Appeals (BIA) affirmed the

      *
         In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the respondent
in this action.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
IJ’s decision and denied Marrufo’s subsequent motion to reopen. Marrufo petitions

for review of the BIA’s decisions. Exercising jurisdiction under 8 U.S.C. § 1252(a),

we dismiss in part and deny in part the petition for review in appeal number 14-9587.

We deny the petition for review in appeal number 15-9152.

I.    Background

      A.     IJ’s Decision

      The Department of Homeland Security served Marrufo, a native and citizen of

Mexico, with a notice to appear (NTA) in March 2007. He admitted the allegations

in the NTA and conceded removability. While his case remained pending for over

six years, with multiple hearings and continuances, Marrufo failed to cooperate with

two different counsel, both of whom eventually moved to withdraw. The IJ

repeatedly warned Marrufo that his failure to submit evidence to support his

application for cancellation of removal under 8 U.S.C. § 1229b(b)(1) would result in

the IJ issuing a removal order.

      Marrufo appeared at a hearing on June 12, 2013, with his newly-retained third

counsel, who asked the IJ for a continuance. Although the government did not

object, the IJ refused to grant Marrufo another continuance. The IJ noted that the

case had been pending for six years and stated (inaccurately) that it had been

continued twelve times. Yet Marrufo still had not submitted any evidence supporting




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his cancellation application.1 The IJ told Marrufo that he could either go forward

with the hearing at that time, the result of which would be a removal order based on

his lack of evidence supporting cancellation of removal, or alternatively, the IJ would

grant him voluntary departure.

      Marrufo initially decided to proceed with the hearing and he was sworn in to

testify. But his counsel soon concluded that he was not ready to go forward on

Marrufo’s cancellation application. Consequently, in the absence of a continuance,

Marrufo opted for voluntary departure and reserved his right to appeal.

      Regarding the denial of a continuance, the IJ stated the following in his oral

ruling:

              [T]he motion is denied. The respondent has had 12 continuances.
      The Court feels that he’s had sufficient amount time to get ready. The
      first appearance before the Court was on 3/14 of 2007. This matter has
      been set for a merits hearing on four occasions. He’s had [two previous
      counsel]. The Court’s familiar with both of those individuals and both
      of them are excellent attorneys and are prepared quite well and are
      ready to go forward on cases. This respondent hasn’t, hasn’t cooperated
      with them. It’s unfortunate because they are very capable attorneys who
      would have done a good job for him, so the Court feels that he’s had
      sufficient amount of time to prepare. That he hasn’t done so on his own
      because he hasn’t wanted to, so the Court is going to go ahead and give
      him the voluntary departure for 60 days.

Admin. R. (filed in appeal no. 15-9512) at 417-18.



      1
         During the hearing, the IJ observed there was no evidence of Marrufo’s ten
years’ continuous physical presence, his good moral character, his qualifying
relatives, or any exceptional and extremely unusual hardship they would suffer upon
his removal. See 8 U.S.C. § § 1229b(b)(1)(A)-(D) (listing requirements for
cancellation of removal).
                                         -3-
      B.     BIA Appeal

      Marrufo appealed to the BIA. He argued that the IJ violated his right to

procedural due process by rescheduling the final hearing, thereby leaving him only

30 days to prepare; by permitting his second counsel to withdraw only days before

that hearing; by denying his third counsel’s motion for a continuance; and by forcing

Marrufo to proceed with the final hearing without adequate time to prepare. The BIA

affirmed the IJ’s decision, finding that Marrufo did not establish good cause for a

continuance. The BIA also rejected his due-process claim, concluding that he failed

to show any prejudice from the IJ’s denial of a continuance.

      C.     Motion to Reopen

      Marrufo filed a motion to reopen. As relevant to this petition for review, he

argued that he had new evidence regarding a U Visa application he planned to file.

To qualify for a U Visa, an alien must demonstrate that (1) he suffered substantial

physical or mental abuse as a result of being a victim of certain enumerated types of

criminal activity committed in the United States; (2) he has information about that

criminal activity; and (3) a law enforcement official has certified that he has been, is

being, or is likely to be helpful in its investigation or prosecution of the criminal

activity. See 8 U.S.C. § 1101(a)(15)(U)(i)(I)-(IV); id. § 1184(p)(1) (requiring

application to include the law-enforcement certification). The BIA denied Marrufo’s

motion to reopen. It first noted there was no evidence that he had obtained the

required law-enforcement certification. Further, the BIA said that Marrufo could


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pursue his U Visa application with United States Citizenship and Immigration

Services (USCIS) independent of his removal proceedings, and if USCIS approved

the application, Marrufo could then move to reopen and terminate his removal

proceedings.

II.   Discussion

      Marrufo seeks review of the BIA’s decisions affirming the IJ’s denial of a

continuance and denying his motion to reopen. We review the agency’s factual

determinations for substantial evidence. Mena-Flores v. Holder, 776 F.3d 1152,

1162 (10th Cir. 2015). We will reverse a factual finding only if “any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). We review constitutional and other legal questions de novo.

Mena-Flores, 776 F.3d at 1162. We review the agency’s denial of a request for a

continuance and its denial of a motion to reopen for an abuse of discretion.

See Jimenez-Guzman v. Holder, 642 F.3d 1294, 1297 (10th Cir. 2011) (continuance);

Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (motion to reopen). “The

BIA abuses its discretion when its decision provides no rational explanation,

inexplicably departs from established policies, is devoid of any reasoning, or contains

only summary or conclusory statements.” Infanzon, 386 F.3d at 1362 (internal

quotation marks omitted).




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      A.     The BIA Did Not Err in Dismissing Marrufo’s Appeal (Appeal No.
             14-9587)

      Marrufo contends that the BIA erred in dismissing his appeal because the IJ’s

denial of a continuance at the June 12, 2013, hearing was an abuse of discretion so

egregious that the IJ’s decision violated his right to procedural due process. But the

procedural history of Marrufo’s removal proceedings belies this claim. “The

Immigration Judge may grant a motion for continuance for good cause shown.”

8 C.F.R. § 1003.29. We agree with the BIA that Marrufo did not establish good

cause for a continuance. Marrufo failed to heed the IJ’s warnings that if he failed to

submit evidence in support of his cancellation application, the IJ would order him

removed. From the time that Marrufo informed the IJ he was seeking cancellation of

removal in December 2008, he had four and a half years to collect and submit his

evidence. Yet he came to the June 12, 2013, hearing unprepared to proceed on that

application. He did not demonstrate—before the IJ or in his BIA appeal—that the

cause of his failure to prepare was his second counsel’s withdrawal on the eve of that

hearing. Marrufo fails to show that the IJ abused his discretion in denying another

continuance at that time.2

      The BIA also rejected Marrufo’s due-process claim. “Because aliens do not

have a constitutional right to enter or remain in the United States, the only
      2
        We reject Marrufo’s claim that the IJ abused his discretion because the IJ
misstated the number of previous continuances. The IJ’s denial of a continuance was
based on the totality of the circumstances, including the amount of time the case had
been pending, multiple previous hearings and continuances, and Marrufo’s failure to
provide his counsel with evidence supporting his cancellation application.
                                          -6-
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).

Marrufo now argues that the IJ denied him a fundamentally fair hearing by refusing

to grant a continuance, by precluding him from testifying and presenting other

evidence, by failing to rule on the merits of the government’s motion to pretermit3

and his cancellation application, and by failing to make a removability finding.

      We have already addressed the due-process arguments Marrufo made in his

BIA appeal and concluded that he failed to show an abuse of discretion by the IJ.

These contentions likewise do not support a due-process claim. The Attorney

General argues that we lack jurisdiction to consider Marrufo’s due-process arguments

that he failed to present to the BIA. Ordinarily, an alien need not exhaust his

constitutional claims before the BIA, “because the BIA has no jurisdiction to review

such claims.” Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008). But

“objections to procedural errors or defects that the BIA could have remedied must be

exhausted even if the alien later attempts to frame them in terms of constitutional due

process on judicial review.” Id. Because Marrufo’s additional due-process

arguments relate to “procedural errors or defects that the BIA could have remedied,”


      3
        At or shortly before the June 12, 2013, hearing, the government filed a
motion to pretermit, contending that Marrufo failed to meet his burden to show that
he had not been convicted of an offense that made him ineligible for cancellation of
removal. The government ultimately stated it would withdraw that motion if it was
the basis for Marrufo’s request for a continuance.
                                         -7-
he was required to exhaust them in his BIA appeal. Id. His failure to do so deprives

this court of jurisdiction to consider these additional contentions. See Torres de la

Cruz v. Maurer, 483 F.3d 1013, 1017-18 (10th Cir. 2007); 8 U.S.C. § 1252(d)(1).

We therefore dismiss Marrufo’s petition for review in appeal number 14-9587 to the

extent he raises these unexhausted arguments.

      B.     The BIA Did Not Abuse its Discretion in Denying Marrufo’s Motion
             to Reopen (Appeal No. 15-9512)

      Marrufo argues that the BIA should have granted his motion to reopen because

he was prima facie eligible for a U Visa. Moreover, because a U Visa is a defense to

removal, he also claims that the BIA erred in concluding that his application was not

relevant to his removal proceedings. And he contends that the BIA erred in

concluding he could move to reopen his removal proceedings if a U Visa were

approved by USCIS. Marrufo maintains that such a motion would be both

number- and time-barred.

      Marrufo fails to demonstrate an abuse of discretion. He does not challenge the

BIA’s determination that there was no evidence he had obtained the law-enforcement

certification required for a U Visa application. Moreover, the BIA did not say that a

U Visa was irrelevant to his removal proceedings; rather, it accurately stated that he

could pursue that application independent of his removal proceedings. See 8 C.F.R.

§ 214.14(c)(1)(ii) (stating aliens subject to final removal orders are not precluded

from filing U Visa applications with USCIS). And the BIA also correctly concluded

that Marrufo could move to reopen his removal proceedings in the event USCIS

                                          -8-
approved his U Visa application. See id. § 214.14(c)(5)(i) (permitting alien with

U Visa to file a motion to reopen removal proceedings, and stating the government

has discretion to join the motion to overcome any time and numerical limitations).

The BIA did not abuse its discretion in denying Marrufo’s motion to reopen.

III.   Conclusion

       The petition for review in appeal number 14-9587 is dismissed in part and

denied in part. The petition for review in appeal number 15-9152 is denied. The stay

of removal entered in appeal number 14-9587 is lifted.

                                               Entered for the Court


                                               John C. Porfilio
                                               Circuit Judge




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