                                                                     FILED
                          NOT FOR PUBLICATION
                                                                      MAR 01 2011
                  UNITED STATES COURT OF APPEALS                 MOLLY C. DWYER, CLERK
                                                                   U .S . C O U R T O F A P P E A L S


                         FOR THE NINTH CIRCUIT

ARNOLDO SILVA,                               No. 06-72409

                Petitioner,                  Agency No. A092-249-042

  v.                                         MEMORANDUM *

ERIC H. HOLDER JR., Attorney
General,

                Respondent.



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

                   Argued and Submitted February 16, 2011
                            Pasadena, California

Before: KLEINFELD, LUCERO, ** and GRABER, Circuit Judges.

       Arnoldo Silva petitions for review of the decision of the Board of

Immigration Appeals affirming the dismissal of his application for

cancellation of removal. W e assume the parties’ familiarity with the facts

and procedural history of this case, and discuss them only as necessary to

        *
           This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Carlos F. Lucero, United States Circuit Judge
for the Tenth Circuit, sitting by designation.
explain our decision. W e review the decision of the immigration judge

(“IJ”) to deny Silva’s request for continuance for abuse of discretion, see

Nakamoto v. Ashcroft, 363 F.3d 874, 883 n.6 (9th Cir. 2004), and questions

of law de novo, see Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.

2004).

      W e conclude that the IJ did not violate Silva’s right to counsel by

denying yet another continuance, after obtaining many previous

continuances, to obtain an attorney. “In order for an [immigration]

applicant to appear pro se, there must be a knowing and voluntary waiver of

the right to counsel.” Hernandez-Gil v. Gonzales, 476 F.3d 803, 806 (9th

Cir. 2007) (internal quotation marks omitted). In the face of an applicant’s

gross inaction, however, waiver may be inferred in limited circumstances.

See Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir. 1986); see also

United States v. Moriel-Luna, 585 F.3d 1191, 1201 (9th Cir. 2009). At

Silva’s penultimate hearing, after the IJ had already granted many previous

continuances, the IJ warned:

      [I]f you have a problem with [your attorney], you and he
      are not getting together or things are not working out, you
      better come see me right away. Or you go get a new
      attorney, whatever you want to do. But sir, I’m not going
      to grant you a continuance again if at the last minute you


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      and your attorney fail to prepare your case and you have
      done nothing about it.

(Emphasis added.) Silva’s refusal to cooperate with his retained counsel

after such an explicit instruction was an implied waiver of his statutory and

constitutional rights to counsel.

      Further, the IJ did not abuse his discretion by denying a continuance

for Silva to be fingerprinted. Unlike the applicants in Cui v. M ukasey, 538

F.3d 1289 (9th Cir. 2008), and Karapetyan v. M ukasey, 543 F.3d 1118 (9th

Cir. 2008), superseded by statute on other grounds as recognized in Owino

v. Holder, 575 F.3d 956, 958 (9th Cir. 2009) (per curiam), Silva was told

several times of the fingerprint requirement, responded that he understood

the requirement, was given a deadline for complying, and was told of the

consequences of failing to do so.

      Silva’s petition for review is DENIED.




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