Hitachi Antonio v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION OCT 05 2016

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

FOR THE NINTH CIRCUIT

HITACHI KELVIN ANTONIO, No. 15-70456

Petitioner, Agency No. A075-104-289

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.

Hitachi Kelvin Antonio, a native of the Phillippines and citizen of Australia,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) removal order. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law

*
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).
and constitutional claims. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014).

We deny in part and dismiss in part the petition for review.

The BIA properly concluded that because Antonio failed to request either a

continuance or administrative closure before the IJ, those issues were not properly

presented for appellate review. See Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1

(BIA 2007) (issues not raised to the IJ are not properly before the BIA on appeal).

Accordingly, Antonio’s contentions that the agency erred in denying a continuance

and administrative closure are not supported by the record.

We lack jurisdiction to consider Antonio’s unexhausted contention that the

IJ should have construed the request he submitted to the Department of Homeland

Security for prosecutorial discretion as a motion for administrative closure. See

Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction

to consider legal claims not presented in an alien’s administrative proceedings

before the agency).

Because the agency did not commit any error regarding the continuance or

administrative closure, it follows that the agency did not violate due process. See

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process

challenge, an alien must show error and prejudice).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 15-70456