                                                                           FILED
                             NOT FOR PUBLICATION                           SEP 24 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


WILFREDO PIZARRO-DAVILA,                         No. 13-70677

              Petitioner,                        Agency No. A029-218-870

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted September 4, 2015**
                              San Francisco, California

Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.

      Wilfredo Pizarro-Davila, a native and citizen of Peru, petitions for review of

a decision of the Board of Immigration Appeals (“BIA”) denying his applications

for asylum, withholding of removal, and protection under the Convention Against



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Torture. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for

review.

                                            I

      The BIA did not err when it refused to extend the briefing schedule of his

appeal. The briefing deadlines for an appeal to the BIA are defined by regulation,

which provides “[t]he Board . . . may extend the period for filing a brief . . . for

good cause shown. In its discretion, the Board may consider a brief that has been

filed out of time.” 8 C.F.R. § 1003.3(c)(1). We review the BIA’s management of

the briefing schedule under § 1003.3(c)(1) for abuse of discretion. See Zetino v.

Holder, 622 F.3d 1007, 1012–13 (9th Cir. 2010). “The BIA abuses its discretion

when it acts arbitrarily, irrationally, or contrary to the law.” Id. (internal quotation

marks omitted). The BIA did not act arbitrarily, irrationally, or contrary to law

when it refused Pizarro-Davila’s second motion to extend the briefing schedule and

denied his motion to reconsider. His attorney’s health issues do not show the BIA

abused its discretion, as the BIA followed its own operating procedures and

warned Pizarro-Davila that successive motions to extend the briefing schedule are

disfavored, advising him that he “should assume that you will not be granted any

further extension.” Further, the BIA’s denial of Pizarro-Davila’s motions did not




                                            2
deny him due process, as the BIA’s decision properly articulated and considered

his arguments. See Zetino, 622 F.3d at 1014.

                                           II

      The BIA did not err in affirming the immigration judge’s determination that

Pizarro-Davila’s asylum application was time barred. Pizarro-Davila contends that

his failure to timely file his asylum application was attributable to ineffective

assistance by his prior counsel. Even if his counsel’s performance was deficient,

Pizarro-Davila cannot demonstrate he was prejudiced by his counsel’s performance

because he was previously denied asylum in Immigration Court and is therefore

statutorily ineligible for asylum. See 8 U.S.C. § 1158(a)(2)(C); Mohammed v.

Gonzales, 400 F.3d 785, 793–94 (9th Cir. 2005) (“[T]he petitioner must

demonstrate . . . she was prejudiced by counsel’s performance. . . . [such that] it

may have affected the outcome of the proceedings.”)1

                                           III

      Pizarro-Davila contests the BIA’s agreement with the immigration judge’s

conclusion that he is ineligible for withholding of removal under 8 U.S.C.

§ 1231(b)(3). To qualify for withholding, the applicant bears the burden to



      1
       In light of our holding, Pizarro-Davila’s motion for judicial notice is denied
as moot.

                                           3
demonstrate a clear probability of future persecution on account of one of the

statutorily enumerated grounds. Garcia v. Holder, 749 F.3d 785, 791 (9th Cir.

2014). Pizarro-Davila’s position in this petition for review does not contest the

BIA’s decision affirming the immigration judge’s determination that he did not

establish that the harm he experienced in Peru was because of one of the five

protected statutory grounds. This issue is therefore waived. See Rizk v. Holder,

629 F.3d 1083, 1091 n.3 (9th Cir. 2011).


      PETITION DENIED.




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