                              NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                              FOR THE NINTH CIRCUIT                         OCT 05 2016

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

JOSE GUTIERREZ-BARRAGAN,                          No.   13-74396

               Petitioner,                        Agency No. A098-098-732

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

               Respondent.


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

                             Submitted September 27, 2016**

Before:        TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      Jose Gutierrez-Barragan, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision finding that Gutierrez-Barragan abandoned his

application for cancellation of removal. We have jurisdiction under 8 U.S.C.


          *
             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).
§ 1252. We review for abuse of discretion the decision to deem an application

abandoned. Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). We review de

novo claims of due process violations in immigration proceedings. Zetino v.

Holder, 622 F.3d 1007, 1011 (9th Cir. 2010). We deny the petition for review.

      The BIA did not abuse its discretion or violate due process in determining

that Gutierrez-Barragan abandoned his application for relief, where he did not file

the application with the immigration court by the deadline the IJ imposed. See 8

C.F.R. § 1003.31 (applications in removal proceedings must be filed with the

immigration court, and if an application “is not filed within the time set by the [IJ],

the opportunity to file that application . . . shall be deemed waived”); Taggar, 736

F.3d at 889 (petitioner abandoned application where she did not file it by the IJ’s

deadline); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and

prejudice to prevail on due process challenge).

      Gutierrez-Barragan contends that 8 C.F.R. §§ 1003.31(c) and 1103.7 violate

due process when an alien has already paid fees to the Department of Homeland

Security. We do not reach these contentions, where the record does not support

Gutierrez-Barragan’s assertion that he paid such fees.

      PETITION FOR REVIEW DENIED.




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