NOT FOR PUBLICATION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.
2 13-74396