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

                            FOR THE TENTH CIRCUIT                         June 26, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JOB SAMUEL RAMIREZ-
CANENGUEZ, a/k/a JOB SAMUEL-
RAMIREZ; GEOVANNY ALEXANDER
RAMIREZ-CANENGUEZ, a/k/a
ALEXANDER CANENGUEZ-
GIOVANNY,                                                   No. 12-9585
                                                        (Petition for Review)
             Petitioners,

v.

ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      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




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