Alvaro-Sotomayor v. Holder

                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 20 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 SANTIAGO ALVARO-SOTOMAYOR,                      No. 07-74406

               Petitioner,                       Agency No. A098-761-340

   v.
                                                 MEMORANDUM *
 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Santiago Alvaro-Sotomayor, 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 denying his request for a continuance.



          *
             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).

DL/Research
Our jurisdiction is governed by 8 U.S.C. § 1252. Because the BIA reviewed the

IJ’s decision for abuse of discretion, we review the IJ’s decision directly. See de

Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997). We review for abuse of

discretion the denial of a continuance, Sandoval-Luna v. Mukasey, 526 F.3d 1243,

1246 (9th Cir. 2008) (per curiam), and we deny in part and dismiss in part the

petition for review.

       The IJ did not abuse his discretion by denying a second continuance to allow

Alvaro-Sotomayor to seek post-conviction relief. See Grageda v. INS, 12 F.3d

919, 921 (9th Cir. 1993); Sandoval-Luna, 526 F.3d at 1247. Alvaro-Sotomayor’s

contentions that the IJ failed to employ the correct legal standard and failed to

specify an adequate reason for denying the continuance are not supported by the

record.

       We lack jurisdiction to consider Alvaro-Sotomayor’s due process contention

because he failed to exhaust it before the BIA. See Barron v. Ashcroft, 358 F.3d

674, 677-78 (9th Cir. 2004).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




DL/Research                                2                                    07-74406