FILED
NOT FOR PUBLICATION MAY 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUNG ILL KIM; JUNG SUK KIM; No. 07-70349
YOUNG WOO KIM,
Agency Nos. A075-624-413
Petitioners, A075-624-414
A075-624-415
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Resubmitted May 24, 2010 **
San Francisco, California
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Sung Ill Kim, Jung Suk Kim and Young Woo Kim (collectively “Kim”)
petition from the Board of Immigration Appeals’ (“BIA”) final order of removal.
The immigration judge (“IJ”) denied Kim’s request for a continuance of his
*
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).
removal proceedings pending the appeal of the revocation of his I-140 work visa
with the Administrative Appeals Unit. The BIA affirmed, without opinion, the IJ’s
decision. When the BIA summarily affirms the IJ’s decision, we review the IJ’s
decision as that of the agency. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.
2009). We review the denial of a continuance for abuse of discretion. Id.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We deny Kim’s
petition for review.
The facts of this case are known to the parties. We do not repeat them.
The BIA properly denied Kim’s request for a continuance. A continuance
may be granted “for good cause shown.” 8 C.F.R. § 1003.29. “Absent a showing
of clear abuse, we typically do not disturb an IJ's discretionary decision not to
continue a hearing.” Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir. 2005).
Still, the BIA “abuses its discretion when it fails to state its reasons and show
proper consideration of all factors when weighing equities and denying relief” or
when it fails to consider “the facts and circumstances of [the] case that were
relevant to the grant or denial of a continuance.” Ahmed, 569 F.3d at 1014
(quoting Arrozal v. INS, 159 F.3d 429, 432 (9th Cir. 1998)) (internal quotation
marks omitted).
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Here, Kim claims to have filed an appeal of the revocation of his I-140 work
visa with the Administrative Appeals Unit, but the record indicates only a letter
from his attorney that does not comply with the agency’s appeal process.
Moreover, nothing in the record contradicts the sworn statement of an
Administrative Appeals Unit officer that Kim never properly appealed the
revocation of his I-140.
Kim’s remaining claim that the discretionary denial of a continuance
violated his due process rights fails. See Munoz v. Ashcroft, 339 F.3d 950, 954
(9th Cir. 2003) (“Since discretionary relief is a privilege . . . , denial of such relief
cannot violate a substantive interest protected by the Due Process clause.”).
DENIED.
3